Confessional Statement

BEFORE
SALIHU M. ALFA BELGORE JUSTICE, SUPREME COURT
EMMANUEL O. OGWUEGBU JUSTICE, SUPREME COURT
SYLVESTER U. ONU JUSTICE, SUPREME COURT
OKAY ACHIKE JUSTICE, SUPREME COURT
UMARU. ATU. KALGO JUSTICE, SUPREME COURT

BETWEEN
SUNDAY IHUEBEKA APPELLANT

AND

THE STATE RESPONDENT

…………………….A……………………

E.O.OGWUEGBU JSC.: (delivering the leading judgement). The appellant was convicted for murder and sentenced to death by Okungbowa, J on 14th January, 1991 at the High Court of the former Bendel State at Ekpoma. The offence was committed on 19th September, 1985 at Illeh-Ekpoma in the Ekpoma Judicial Division.

From the facts disclosed in Exhibit “1”, the evidence of the accused on oath at the trial and the evidence of the prosecution witnesses, l have no doubt in my mind that the victim died as a direct result of the voluntary act of the accused and the learned trial judge and the court below came to right conclusion. It is therefore immaterial to me in the determination of the appeal whether Exhibit “1” is a confessional statement of the offence murder or not.

The medical officer who performed the autopsy was away In Saudi Arabia and It was impossible to reach him. It is an accepted principle of law in homicide that where the cause of death is obvious as in the instant case, medical evidence ceases to be of practical legal necessity. See Enewoh v. The State (1989) 4 NWLR. (Pt.119) 98. The deceased died almost immediately from the voluntary act of the accused.

I am left with the question whether the defence of provocation which is argued on behalf of the accused was established in order to reduce the offence of murder to that of manslaughter. The accused in Exhibit “I” alleged that he was provoked that morning “because of home trouble” and that he “took the decision of killing his father and his wife Mrs. Grace Uluebeka.” In the said Exhibit “I” he alleged that his parents were worrying him because of his ill-health and the fact that he had no money. He repeated the alleged acts of provocation in his evidence.

The courts below rejected the defence of provocation. They did not believe the accused that he inflicted the matches cuts on his wife and father (deceased) in the house. The trial judge held as follows: “I hold on the evidence before me that even if it was true that the deceased‘s wife, 1st PW. and accused person‘s wife ridiculed him because he had lost his job and that accused person should leave the father‘s house with his wife, the statements do not amount to provocation. Even if the words amounted to provocation, it is my view that the accused person had enough time between the time he matcheted his wife at home and the time he walked to the farm where the deceased was, for his passion to cool.”

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The courts below agreed with the trial court that the words do not amount to provocation in law and even if it did, the accused had enough time between the time he inflicted the injuries on his wife at home and the time he went to the farm where the deceased was, for his passion to cool.

Even though the accused set up the defence of provocation, no amount of provocation can excuse homicide or render it execusable except by virtue of section 318 of the Criminal Code which provides:

“When a person unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

In R. v. Duppy (1949) 1 All ER. 932 Devlin, J. defined provocation as:-

“some act or series of acts done by the deceased to the accused which would cause in a reasonable person, and actually does cause in the accused, a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind.”

I am not persuaded by the argument of the learned counsel for the accused that the provocation alleged in this case was sufficient to reduce the offence of murder to that of manslaughter by virtue of Section 318 of the Criminal Code. I have considered all the circumstances which led to and resulted in the killing of the deceased from the point of view of what would amount to provocation in the case of a reasonable person in Nigeria of the standing in the life as the accused in consequence of the alleged provocation as contained in Exhibit “1” and I am satisfied that no reasonable Nigerian of the same standing in life as the accused will be so rendered subject to passion or loss of self-control as to be led to use such violence leading to fatal result. The circumstances were not such as to make the accused lose his self-control as to inflict those matchet cuts on his father. He could also not be said to have acted in the heat of passion when after inflicting those matchet cuts on his wife at home, he proceeded to the farm to inflict the deadly cuts on his father. See John v. Zaria N.A. (supra) Nomad v. Bornu Native Authority (1954) 21 NLR 31. The Queen v. Akpakpan (1956) 1 FS. 1 at 2 and Ruman v. Daura N.A. (1960) 5 FSC. at 93. Certainly there was enough time for his passion to cool and reason to gain control of his mind.

Furthermore, the infliction of fatal matchet cuts on the deceased by the accused as a mode of resentment bore no relationship to the provocation offered. I agree that words alone can constitute provocation as to reduce the offence of murder to manslaughter but from all I have said in this judgment, such word, if any, did not satisfy the requirements set out in Section 318 of the Criminal Code. The words themselves must be of such a provocative nature as to incense a reasonable man of the accused‘s standing in life and education to lose his self control. See Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 114 and The Queen v. Akpakpan (supra). I have seen nothing in the evidence of the prosecution witnesses and that of accused person himself that would have led the trial judge to any verdict other than that of guilty of murder. The court below were right in their conclusions.

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I find no merit in the appeal and I dismiss it for the reasons given above. The conviction and the sentence of death imposed on the accused are hereby affirmed.

S. M.A. BELGORE, JSC.:The appellant no doubt killed his father after inflicting grievous hurt on his wife. I find no reason to interfere with the well reasoned judgment of Court of Appeal which affirmed the decision of trial High Court. For the fuller reasons in the judgment of my learned brother, Kalgo JSC, I also dismiss the appeal as totally lacking in merit.

S. U. ONU, JSC.:I was privilege before now to read in draft the judgment of my learned brother Ogwuegbu, JSC. I am in entire agreement with him that the appeal lacks merit and it is accordingly dismissed by me. I wish to comment on the case briefly as follows:-

My learned brother has ably reviewed the facts which in, my view, are so clearly indisputable that I do not intend to repeat them here. Suffice it to say, that the learned Appellant‘s Counsel having withdrawn additional grounds 1, 2 and 3 of the grounds of appeal upon which issue 1 is founded, they were accordingly struck out. Left with only Issues 2, 3 and 4, learned Counsel made a succinct general comment on them by urging us to allow the appeal, failing which we were urged to return a verdict of manslaughter, I will now consider Issues (II) and (III) together and then Issue No. IV separately thus:

ISSUES NO. II & III. These issues first taken together ask:

(ii) Whether the trial of the Appellant on 24th day of October, 1990 with the learned trial Judge acting as the prosecutor, and the Judge was contrary to Section 33 of the Constitution of the Federal Republic of Nigeria 1979, which occasioned miscarriage of justice,

(iii) Whether Exhibit ‘1’ can be classified a confessional statement of the Appellant for murder.

The learned Counsel for the Appellant on Issue (II) above submitted inter alia that the failure of the learned trial Judge to resolve the allegation of lack of confidence in him undermined or compromised the Appellant‘s right to fair hearing as guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) (hereinafter referred to as the (Constitution). This grave allegation, was also not disclosed by the Court to the Appellant for inexplicable reasons but that this unresolved allegation left the integrity of the Court hanging, thereby eroding the confidence in the entire proceedings and judgment.

Appellant further expatiated in his written Brief that the failure of the learned trial Judge to resolve the allegation of lack of faith hereinbefore referred to, coupled with the failure to inform him throughout the trial of the allegation by his former counsel against the Court, constituted a breach of the rule of natural justice or fair hearing The net result, it was further argued, was to have declared the decision null and void. Reliance was placed on the case of Adigun v. A.G. of Oyo State (1987) I NWLR (Part 53) 678 and Section 33(6) (c) of the Constitution (as amended) the latter which states that.

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(6) “every person who is charged with a criminal offence shall be entitled:

(c) to defend himself in person or by legal practitioner of his own choice.” And

Section 352 of the Criminal Procedure Law Laws of Bendel State 1976, Cap, 49 (applicable to Edo State) which provides that:

“Where a person is accused of a capital offence the State shall if practicable be represented by a Law Officer or Legal Practitioner and if the accused is not defended by a Legal Practitioner the court shall, if practicable assign a Legal Practitioner for his defence.”

After our attention had been drawn to consistent previous decisions of this Court deprecating unfair trial and particularly failure to make available comprehensive facts of a case to an accused person, concealment of suppression of facts from him, we were referred to the cases of Denloye v. Medical Dental Practitioners Disciplinary Committee (1968) ANLR. 298 (Reprints), Odofin Bello v. The State (1968) ANLR. 298 at 302 and 303 (per Ademola, CJN.) and Modern Bar Advocacy Honourable Justice C.A. Oputa, Appellant in addition cited the case of Mohammed v. The State (1991) 5 NWLR (Part 192)438 at 456 as per Olatawura, JSC. and Hameed Apampa v. Balogun – Suit No. 1/211/65 of October 20, 1970 per Aguda, J. (as he then was) to buttress his argument in illustrating that the Appellant was deprived of his right to fair hearing which occasioned a miscarriage of justice, it was further submitted that the learned trial Judge did not make the necessary disclosure, had concealed or suppressed from the Appellant as well as the substitute Counsel the allegation of lack of faith made against him. Learned Counsel after classifying what may amount to a confessional statement of the Appellant for murder, contended that the extra-judicial statement of the Appellant was erroneously classified as a confessional statement by the learned trial Judge and affirmed by the learned justices of the Court of Appeal whose findings thereon were perverse in that the Appellant never confessed to killing the deceased as charged. It was contended that for Exhibit 1 to qualify as confessional statement the Appellant who was alleged to have made it must admit or agree clearly, precisely and unequivocally in the statement that he committed the offence with which he is charged, to wit: that a confession must be direct and positive. The cases of Gbadamosi v. The State (1992) 9 NWLR (Part 266) 465 at 478 and 479 and Raimi Adebisi Afolabi v. Commissioner of Police (1961) ANLR 682 (Reprint) were cited in support of the proposition.

In Exhibit “1”, it is stated that the Appellant killed the deceased under provocation. It is further argued that the learned Justices of the Court of Appeal relied heavily on that confessional statement to murder and incorporated same in the judgment convicting the Appellant and that this serious misdirection in misconstruing Exhibit ‘I‘ as a confessional statement, has occasioned a miscarriage of justice which furnishes a ground of quashing the conviction. It was further submitted that the Appellant made no confession to murder as wrongly held by the learned justices of the Court below, addition; that in tne absence of any direct evidence to sustain the charge of murder, the circumstantial evidence not being cogent, complete and unequivocal, supported the offence of manslaughter, adding that as the circumstantial evidence is equivocal, the Court should be wary to convict on it. The case of Michael Peter v. The State (1997) 12 NWLR (Part 531) 1 at 19 was called in aid. It was therefore maintained that where a reasonable doubt was created by the evidence given by either the prosecution or the defence as to the guilt of the accused for the offence charged, the benefit of doubt should enure in his favour The case of Akpabio v. The State (1994) 7 NWLR (Part 359) 635 at 670 was cited in support thereof, stressing that for the doubts highlight, a verdict of discharge and acquit all or in the alternative, a conviction for the offence of manslaughter in view of the unrebutted evidence of provocation, was the appropriate verdict to arrive at.

…………………….J……………………

In respect of Issue II, it is pertinent to point out firstly, that when on 24th October 1990, this case was called (see page 13 of the Record), the learned State Counsel prosecuting the case was absent while Mr. J.O. Udaxe, Counsel for the Appellant was present in Court. Inspite of the absence of the State Counsel, the trial Judge proceeded with the trial whereby the Appellant gave evidence and was not cross-examined. (See page 14 of the Record), Mr. Udaze further addressed Court and the case was adjourned for judgment. It is therefore not trite that a reading of the proceedings of 24/10/90 reveals clearly that the Appellant had no fair trial. Should anyone complain, it is the State that was not represented that ought to do so but surely not the Appellant. Clearly, the Appellant‘s grouse is groundless more so, that defence evidence, I agree with the Respondent for submitting that the learned trial Judge was right when he carried on with the case in the absence of the prosecution. This clearly did not occasion any miscarriage of Justice.

Moreover, the decisions of the two courts below constitute concurrent findings of fact warranting no interference whatsoever. See Mora & Ors. v. Nwalusi & Ors. (1962) 1 ALL NLR Part 4 681.

If the Appellant was not represented by Counsel, how then could the learned trial Judge have been shown to be in error? It is not correct to suggest that the record of proceedings depicts that the learned trial Judge either conducted the case of the prosecution for it or even put a question to betray the semblance of descending into the arena to assist any of the contending parties. Rather, the Appellant and his Counsel partook in a free and unfettered trial wherein I cannot see any breach of Section 33(1 ) of the 1979 Constitution (now Section 36(1) of the 1999 Constitution).

In this wise, all authorities cited by the Appellant in his quest to show that he received no fair trial in the two courts below are not only in-apposite, they are in my respectful view, of no avail. Besides, not only were the proceedings of 24/10/9O an impartial trial of the Appellant, there was nothing that could be a fairer one that was conducted. In the circumstances, the case of Akinfe v. The State (1988) 3 NWLR. (Part 85) 729 does not apply to the instant case.

On issue (iii) as to whether Exhibit “1” can be classified as a confessional statement of the Appellant for murder, I am of the firm view that that statement constitutes a positive one made by the Appellant. For instance, in it, the Appellant stated as follows:-

“I did kill him because he has been telling me to leave his house with his wife.” He further stated “I did not kill them but gave them matchet cut.

In this evidence-in-chief at his trial, the Appellant further admitted that he inflicted the injuries which caused the death of the deceased. This has established the fact that the Appellant knew what he did and he admitted it. Even though there was no eye-witness to the crime therefore, the appellant made a voluntary statement (Exhibit “1”) which the trial court rightly regarded as a confessional statement and the court below upheld it. The fact that the trial judge could convict on the confessional statement (Exhibit “1”) of the appellant which is direct, positive and unequivocable and which properly established the truth of the guilt of the appellant, was made clear in the case of Silas Ikpo v. The State (1995) 33 LRCN 587 at page 589 (ratio 3) where this court held as follows:-

…………………….K……………………

“a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession.”

See R. v. Sykes (1913) 8 CAR. 233 at 236 ….” See also R. v. Onabanjo (1936) 3 WACA 3 R. v. Igwe (1960) 5 FSC 55 and Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424 at 426. I am in agreement with the respondent‘s submission that the test in R. v. Sykes (supra) in respect of the confessional statement, to wit: Exhibit “1”, is corroborated by the evidence given by the prosecution witnesses, the totality of which confirms the truth of the confessional statement. For instance, PW. 1, PW.2 and PW.4 testified that the deceased had matchet cuts on the head and body and although they were not eye-witnesses, the appellant‘s conviction, as it was based upon the circumstantial evidence received which is cogent, compelling and upon which there are no co-existing circumstances, that could create a doubt as to the guilt of the appellant. See Udo Udedibia v. The State (1976) 11 SC 133. In other words, where, as in the instant case, the Appellant‘s confession is direct and positive, there is no need to seek for corroborative evidence. See R. v. Omokaro 7 WACA 146; Edet Obosi v. The State (1965) NMLR 119 and Jimoh Yesufu v. The State (1976) 6 SC 167.

Where the statement of an accused is voluntary as in the instant case vide Exhibit 1 and it was properly admitted, for which See R. v. Obiasa (1962) 1 All NLR, 651, Achabua v. The State (1976) 12 SC 63, the fact that the statement was later retracted, (which was also not the case here) is immaterial. See R. v. Kanu 14 WACA 70 and R. v. Egbobhonome (1993) 7 NWLR (Part 306) 383 at 428 and 434.

In the Udedibia case (supra), this court held that where direct testimony of an eye-witness is not available, the Court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred. In the instant case, the trial judge rightly in my view, inferred that the circumstances point to the guilt of the appellant and the court below was justified in affirming same.

Issue No.IV asks whether the defence of provocation is available to the appellant. The learned trial judge found the defence of provocation not to avail the appellant and held that if in fact he (Appellant) was ridiculed by words of mouth by the deceased and his wife, that he lost his job, such statements do not amount to provocation. The Court below unhesitantingly affirmed the decision, more so that is now settled law that the provocation must be grace and sudden and must be such as to take away freely from the accused the power of self control making him for the moment not a master of his mind. See R. v. Afonja (1955) 15 WACA 26, following the observation in R. v. Duffy (1949) 1 All ER. 932 (per Devlin J. (as he then was). See also the decision of this court in Ogboonna Nwede v. The State (1985) 3 NWLR (Part 13) 444. The act of killing must have been done in the heat of passion before there was time for passion to cool and then there must be a retaliation not disproportionate to the provocation offered.

Thus, “for the defence of provocation to be available, the accused must have a reasonable belief that his life is in danger and the quality of force used by him must be the same as that from which he defends himself. See Okonji v. The State (1987) 3 SCNJ 33 at 39. If indeed, the Appellant was actually provoked the Appellant by taunting sequel to the loss of his job in Benin, he would have attacked the deceased and his wife in the heat of passion and before he had time for passion to cool down. Rather, the Appellant attacked his wife at home and allowed the deceased to go to the farm where he was rendering a humanitarian job of reaping yams therefrom for him (Appellant) to take away back to Benin, when he went there (farm) to attack and killed him (deceased).

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It is from the overwhelming evidence adduced against the Appellant herein that I hold the view that the Appellant was not provoked at all. Rather, the murder was cold, dastardly and premeditated. Assuming that there was provocation, the injuries inflicted on the deceased would not appear to bear any reasonable proportion to the provocation if any, given. There are no mitigating circumstances, in my view, to make the defence of provocation available to the Appellant so as to reduce the offence of murder charged to that of manslaughter. Appellant‘s case bears no redeeming features in my opinion.

For the reasons given and the more elaborate ones contained in the leading judgment of my learned brother Ogwuegbu, JSC. I dismiss this appeal as lacking in merit. I accordingly affirm the decision of the Court below.

O. ACHIKE, JSC.:I have had a preview of the leading judgment of my learned brother, Ogwuegbu, JSC. I am in total agreement with the reasoning and conclusions that this appeal is lacking in merit and the same should be dismissed.

The appellant was charged with the offence of murder of his father on the fateful day, After due trial, he was convicted and sentenced to death by the learned trial judge, Okungbowa, J. of the High Court of Ekpoma in the defunct Bendel State (within present Edo State). The facts of this case are hardly in dispute and have been lucidly set out in the leading judgment of my learned brother which I respectfully wish to adopt as mine in my brief consideration of one aspect of this appeal, namely, the defence of provocation based on mere words – abusive or vituperative

The salient words uttered by the deceased that could be relied upon possibly as defence of provocation in the instant case and as may be gleaned from the appellant‘s statement to the police or his testimony in court are as follows:

Statement of accused person. Exhibit 1:

“My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house with his wife …. I was provoked this morning 19/9/85 because of home trouble and I took a decision of killing my father and wife Mrs. Grace Uluebeka. I now say that I did not kill them but I gave them matches cuts …. And it is because of ill-health that my parents are worrying me …..I became annoyed because I have no money and everybody in my family continue (sic) to worry me more especial (sic) my father and his wife. I cut my wife because she was bulling (sic) me since I have no money. Since I have no money my family became annoyed of me without minding my ill-health. This is why I decided to end my life with any person available”.

Appellant’s testimony

“……. Because my wife and my father ridicule me I was angry and so I went into the room and picked up a cutlass and cut my wife and my father”.

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It is against this background that learned Counsel for the appellant inter alia, urged the defence of provocation on behalf of the appellant, relying on Section 318 of the Criminal Code Cap 48, Laws of Bendel State 1976 applicable to Edo State. Learned counsel submitted that when the act of the accused caused him to lose “momentary control of his mind, the defence of provocation will avail him.”

On the defence of provocation, learned Appellant‘s counsel submitted that provocation must be grave and sudden and must be such as to take away the accused‘s self-control and that the act of killing must have been done in the heat of passion before there was time for passion to cool and that the retaliation must be proportionate to the provocation offered.

The question due for consideration is, whether the defence of provocation, as postulated under issue No.4 can avail the appellant to reduce the offence from murder to manslaughter. The defence of provocation is set out under Section 318 of the Criminal Code, Cap. 48 Laws of Bendel State 1976, applicable to Edo State Section 318 states:

“When a person unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

For the killing of another to be excused in the sense that it is reduced to manslaughter, the person seeking to evoke the defence of provocation must satisfy the court on the following elements, namely,

(a) that he killed the deceased in the heat of the passion caused by sudden provocation, and

(b) that at the time of killing the heat of passion had not cooled.

These conjunctive elements are demanding in that the appellant would have acted on the spur of the moment of the act of sudden provocation which left him no time for cooling of his passion. Put differently, the sudden provocation which generates the heat of passion would be quite contemporaneous with the killing of the victim of the murder, the heat of temper not having time to cool.

The evidence from which the act of provocation can be elicited is very and circumscribed. It is contained in Exhibit 1 and appellant‘s testimony in court as set out above there being no real eye-witnesses to the killing. Exhibit 1 shows that appellant‘s father (probably, and his mother) had been telling the appellant to vacate his house. This did not go well with the appellant. When the same request was made on the fateful day of l9/9/85, the appellant, by his ipsi dixit, said he was provoked. I will interpret this, to mean that he was angry and also according to him, he took the decision to kill his parents. Furthermore, from his testimony at the trial he explained that the request by his parents that he should vacate their house amounted to being ridiculed by them which made him angry and caused him to go for his matchet with which he killed his father. It is, as I had earlier observed, within the confines of this narrow piece of evidence that appellant‘s learned counsel had urged the defence of provocation. Except for the apparent verbal ridicule by appellant‘s parents that the appellant should leave their house and, establish his own home, nothing else has been shown to have generated such sudden provocation meted out to the appellant and which, while the passion so generated still lingered, to warrant -the appellant to kill his father.

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In another jurisdiction, it has been more lucidly put that the heat of passion was such as would make the person, like the appellant herein, lose his self-control as to make him at that critical point in time, no longer magister animi in killing or inflicting the devastating matches cuts on his father. See R v. Duppy (1949) 1 All E.R. 932 at P.932 per Delvin. J. R v. Nwanjoku 3 WACA 208, R v. Afonja (1955) 15 WACA 26 and Nwede v. The State (1985) 3 NWLR (Pt.13) 444. In my view, neither the appellant from the evidence placed before the court nor his learned counsel‘s submission has explicitly demonstrated the temporary loss of self-control by the appellant as to afford him a defence under Section 318 of the Criminal Code.

The appellant from his oral testimony gives the impression that the inflicting of matches cuts on his wife and the devastating matches cuts on his father were executed contemporaneously at their home, but, on the contrary, there is evidence of three prosecution witnesses, i.e. PWI. PW3 and PW4, to the effect that the brutal matcheting of the deceased occurred at his farm. Assuming but not conceding, that mere words, comprising ridicule to the effect that appellant should found his own home and to that reason should vacate the deceased‘s house, would such words alone be sufficient to ground the defence of provocation? Unfortunately, the exact words of ridicule were not explicitly stated in order to enable one enquire whether they can justifiably be such as would make a person lose his self-control. Be that as it may, will mere words, without more, afford a person the defence of provocations. The English courts turned in a negative answer. Thus in Reg v. Sherwood 174 English Report 936 it was held that no provocation by words alone will reduce the offence of murder to that of manslaughter. In contrast, see Bedder v. D.P.P. (1954) 2 All E.R. 801, The accused who was sexually impotent tried unsuccessfully to have sexual intercourse with a prostitute. She thereafter jeered at him and also kicked him causing him to lose self-control whereupon he stabbed her twice and killed her. On a charge of murder, the accused pleaded provocation and the House of Lords upheld the direction that the proper test was the effect which the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person. Again, in the split decision of 3:2 of the Supreme Court in Mallam Zakari Ahmed v. The State (1999) KLR Vol.5 Part 84 P.1391, while the majority decision (Belgore, Mohammed & Kalgo, JJSC) held in effect, that mere verbal abuse would ground the defence of provocation, the majority decision (Ogundare & Achike, JJSC) strongly held otherwise. Here, it is quite clear that the appellant failed to establish that he was at great rage at the critical moment, and ceased to be the master of his own understanding when he landed matchet cuts on his father consequent to the fatherly insistence that the appellant should establish his own home. Even if verbal provocation is congnizable, It must however be borne in mind that it is not ever, slight provocation, even by “striking or blow, will justify the appellant to retaliate with a weapon, such as a matchet or gun, that is lethal and likely to cause death. The question here is whether the appellant can be said to be justified to have resented the verbal words of alleged ridicule of the deceased by using-a deadly weapon calculated to cause death.

The answer to be turned in must clearly be in the negative and to that extent there will be no justification for the reduction of the crime of murder to manslaughter. See Yusuf v. The State (1988) 4 NWLR (Pt. 86) 96 and R. v. Adekanmi (1944) 17 NLR 99.

Finally, I am clearly of opinion that there was ample or sufficient interval between the time the deceased uttered the words of alleged ridicule to the appellant while at home and the moment the deceased was brutally inflicted with several matches cuts on the body by the appellant at the farm for cooling of appellant‘s passion and thereby enable him to regain the master of his understanding. Consequently, I am clearly of opinion that the murder was brutal, premeditated and completely out of proportion with the seeming provocation meted to the appellant.

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For the fuller reasons given in the leading judgment of my learned brother and what I have said herein, I am satisfied that the two lower courts were respectively right in convicting, and affirming the conviction of, the appellant of murder and not reducing the offence to manslaughter.

U. A. KALGO, JSC.:I have read in draft the judgment of my learned brother Ogwuegbu JSC just delivered and I entirely agree with him that the appeal has no merit and ought to be dismissed. I however wish to add the following by way of emphasis.

In the Ekpoma High Court of former Bendel State (now Edo State) the appellant was charged and tried of one count of murder which reads as follows:-

STATEMENT OF OFFENCE

Murder contrary to Section 319 (1) of the Criminal Code cap. 48 Vol. II laws of Bendel State of Nigeria, 1976.

PARTICULARS OF OFFENCE

Sunday Ihuebeka (M) on or about the 19th day of September, 1985 at Illeh-Ekpoma in the Ekpoma Judicial Division murdered one Iregho-ULUEBEKA male).

On the 16th of October, 1989 when the charge was read and explained to the appellant, he pleaded not guilty. The trial proceeded whereby the prosecution called 4 witnesses and tendered the caution statement of the appellant which was admitted as exhibit 1. The appellant gave evidence in his defense but called no witnesses. At the end of the trial, only the defence counsel who was present in court addressed the court. The case was then adjourned for judgment. On the 14th of January, 1991, the learned trial judge, Okungbowa J. in a well-considered judgment found the appellant guilty of murder, convicted him of the offence and sentenced him to death.

The appellant appealed to the Court of Appeal Benin, as he was entitled to do, but the Court of Appeal dismissed his appeal. He now appealed to this court on seven grounds.

In accordance with the rules of this court, both parties filed their respective written briefs and exchanged them between themselves.

The appellant in his brief formulated the following issues for the determination of this court:-

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(i) Whether the failure of the learned trial Judge to resolve the allegation of lack of faith against the court by the former Counsel and not informing the substitute Counsel or Appellant of this serious allegation breached the Appellant‘s right to fair hearing as guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria 1979, (as Amended).

(ii) Whether the trial of the Appellant on 24th day of October, 1990 with the learned trial Judge acting as the prosecutor and the Judge was contrary to Section 33 of the Constitution of the Federal Republic of Nigeria 1979, which occasioned miscarriage of justice.

(iii) Whether Exhibit “1” can be classified as a confessional statement of the Appellant for murder.

(iv) Whether the defence of provocation can avail the Appellant to reduce the offence from murder to manslaughter.

For the respondent, 4 issues were also raised thus:-

(i) Whether the manner in which the learned trial judge conducted the trial of the Appellant after his counsel withdrew from the case breached the Appellant‘s right to fair hearing or occasioned any miscarriage of justice.

(ii) Whether the learned trial judge acted as the prosecutor and judge on the 24th day of October, 1990.

(iii) Whether Exhibit ‘1‘ was a confessional statement positively made by the Appellant.

(iv) Whether the defence of provocation is available to the Appellant.

After going through the issues set out by both parties in their separate briefs, I find that the issues are virtually the same. I will therefore adopt, for the purpose of this appeal, the issues raised by the appellant.

At the hearing of this appeal, both counsel essentially adopted their briefs on behalf of their respective clients and urged the court to deal accordingly. It is however pertinent to note here that the learned counsel for the appellant in course of argument, applied to abandon or withdraw his issue I for determination which related to grounds of appeal 1 and 2. There was no objection from the learned counsel for the respondent and so issue I was accordingly struck out. I will say nothing about it in this judgment.

In issue II, the appellant‘s complaint was that on the 24th October 1996, during the trial of the appellant, when the state counsel prosecuting the case was absent, the learned trial judge proceeded with the trial whereby he took the defence of the appellant and the address of the defence counsel. This, learned counsel for the appellant submitted in the brief, went contrary to the provisions of Section 33 of the 1979 Constitution and occasioned a miscarriage of Justice. He further submitted that this conduct of the judge established his likelihood of bias and lack of impartiality which vitiated the entire trial. He cited these cases in support: Okoduwa v. State (1988) 2 NWLR (pt. 77) 333 at 347; Akinfe v. The State (1988) 3 NWLR (pt. 85) 729 at 725-3; David Uso v. C.O.P.(1972) 11 SC37at46; Kim v.The State (1992) 4 NWLR (pt. 233)17 at 40.

…………………….Q……………………

Mrs. Uwuigbe, learned Assistant Chief Legal Officer for the respondent submitted in. the brief that the proceedings of the 24th October, 1990 was more than a fair trial in that the appellant gave his evidence in defence without being cross-examined and the learned trial judge did not ask him any question at all before adjourning the case for judgment. She farther submitted that the appellant had nothing to complain about on that day‘s proceedings; if any body was to complain, it would be the respondent who was not represented. Learned counsel therefore submitted that the learned trial judge conducted the proceedings of 24th October, 1990, fairly without any inclination of bias or partiality towards the appellant and that there was no miscarriage of justice or any contravention of the provisions of Section 33 of the 1979 Constitution in relation to the appellant.

For a clear understanding of what happened on 24th October, 1990, in the trial of the appellant, it is pertinent to examine the proceedings immediately before the 24th of October, 1990. On the 10th of October, 1990, when the case was called in the presence of the parties, the following proceedings was recorded on page 13 of the record:-

“Case called. Accused person is present. M. Tedeye State Counsel (Miss) appears for the State. J.

O. Udaze Esq; appears for the accused person. J. O. Udaze Esq; asks for a short adjournment. M. Tedoye State Counsel (Miss) has no objection.

Court:– This case is adjourned to 24/10/90 for defence.

sgd. G.U.O. Okungbowa

Judge 10-10-90”

(italics mine)

On the 24th October, 1990, the following proceedings took place:-

“Case called. Accused is present. J. O. Udaze Esq appears for the accused person. State Counsel is absent.

Defence Opens his case”

This was immediately followed by the evidence of the appellant in his defence, which went over to page 14 of the record. At the end of the appellant‘s evidence, this was recorded:-

“J.O. Udaze Esq; informs the court that this is the case for the defence”

This was immediately followed by the address of Udaze, the learned counsel for the defence, after which the case was adjourned for judgment.

From the above, it was clear that on the 10th October, 1990, the case was adjourned for defence with the consent of the learned State Counsel for the respondent to the 24th of October, 1990. On the 24th of October, 1990 when the state counsel failed to appear, the defence of the appellant proceeded unhindered and at the end of it, there was no cross-examination by the learned trial judge or any body at all. The appellant got away with all what he said in his defence except when considered in relation to other evidence produced earlier by the state counsel. The learned trial judge, according to the proceedings of 24th October, 1990, did not and could not by any stretching of imagination be taken to assume the double role of judge and prosecutor at the same time in this case nor could be taken to be biased or impartial in the performance of his normal functions. Therefore the appellant cannot be justified at all in his complaint in issue II against the judge as he was more than fairly treated and there cannot by any miscarriage of justice in the conduct of his trial by the learned trial judge. The state counsel did not complain against the learned trial judge for proceeding with the case in their absence thereby depriving them of the opportunity to cross-examine the appellant on defence evidence.

…………………….R……………………

The appellant was granted every opportunity of presenting his defence during his trial and there is no question of any unfair trial or miscarriage of justice arising thereby. See Kano v. N.A. Obiora ( 1960) NRNLR. 42. The appellant was present throughout the trial and his counsel also represented him throughout the trial. And although there was a change of counsel when Dr.Okoloise decided to withdraw his representation for the appellant, the trial court immediately assigned another Mr. Udaze to represent the appellant and the appellant did not object to appearance of the new counsel for him. On the 24th of October, I 990, when the learned trial judge decided to continue the trial in the absence of the state counsel the appellant‘s counsel was present; he led the appellant in his defence and addressed court at the end of the trial. There is no doubt therefore that trial of the appellant was fair and not in contravention of the provisions of Section 33 of the said Constitution.

I have gone through all the cases cited by the learned counsel for the appellant on this issue, and I found them to be irrelevant and inapplicable to the facts and circumstances of this case. I resolve issue II in favour of the respondent.

Issue III and IV were argued together by the learned counsel for the appellant in his brief. They dealt with the confessional statement of the appellant Exhibit 1 and the defence of provocation.

In order to appreciate the relevance of issue III and IV in relation to the circumstances of this case, it appears to me useful at this stage, to set out, albeit briefly the facts of the case as presented to the court by the prosecution.

In the evening of the 18th September 1985 the appellant arrived in Benin to visit his father Irogho Ulbebeka (the deceased). At about 7pm that evening, Mr. Irogho Uluebeka invited his junior brother Abu Uluebeka, PW. 1, to the family house where the latter met the appellant. In the presence of the appellant, Irogho Uluebeka told PW. 1 that the appellant had refused to assist him (the deceased) in the payment of the school fees of his (the appellant‘s) brother who had gained admission into a Technical College Afuze. On hearing this, PW. 1 immediately invited the appellant to his own house where he pleaded with the appellant to assist his father in the payment of the school fees of his brother. The appellant still refused and PW.1 I reported this back to his senior brother the deceased. PW. 1 then returned to his house and the matter left to rest.

It is pertinent to observe that at this time, the appellant was a sales representative of Green Sands Publishers Company No. 165 upper Sokponba Road, Benin city and had a vehicle assigned to him for the promotion of the company‘s goods.

The following 19/9/85, the deceased went to his farm to harvest some tubers of yams to give to his son the appellant who was going away later in the day. PW.1 also went to his own farm that morning and whilst he was there, one Victor Arebu came to him on a motor cycle and told him something, as a result of which he followed Victor Arebu to the deceased farm where he found the deceased in a pool of blood nearing death. The deceased told him that it was the appellant who matcheted him. The deceased told him that it was the appellant who matcheted. The deceased was taken to the Police Station Ekpoma and then to the General Hospital where he died before any treatment was given to him. The appellant was then arrested. On the 29/9/85 a medical officer conducted post-mortem examination on the corpse of the deceased after PW.1 identified it as that of his brother Orogho Uluebeka.

…………………….S……………………

PW. 2 Vincent Oseghale testified that the appellant took him and some other people to the deceased farm and showed them where he (appellant) matcheted the deceased and left him lying in a pool of blood. On the same day, the appellant also inflicted some matchet cuts on his wife Grace and this was seen by PW. 3 Sunday Okosun, who took Grace to the Police Station Ekpoma and then to the General Hospital where she was admitted for treatment.

PW. 4, who was the investigator of the case, also took the statement of the appellant under caution on the day of the incident – 19/9/85. It was signed by the appellant and admitted in evidence at the trial as Exhibit 1.

That briefly is the evidence of the prosecution in this case. I shall now consider issues III and IV in the light of the evidence.

The question raised in issue III, is whether Exhibit 1, can be classified as a confessional statement. What then is a confessional statement in law? It is simply a statement of an accused person charged with a criminal offence, which is a confession. What amounts to a proper confession in this contest? In Osborne‘s concise Law Dictionary, sixth Edition page 87 confession is defined thus:-

“An admission of guilt made to another by a person charged with a crime. It is admissible only if free and voluntary; i.e. if it not forthcoming because of inducement, or threat, held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in relation to the proceedings. The onus of proof that a confession was voluntary is on the crown (D.P.P.V Pin Lin (1915) 3 WLR 419). Admission may be obtained from a person by questions fairly and properly put to him by a police officer. (Italics mine)

PW.4 Sgt. Koliko Umaru was the Police Office who investigated the case of the appellant. In the course of his investigation he collected as statement made by the appellant before another Policemen in his presence on the 19th of September, 1985, the day the incident happened. In his evidence-in-chief at the trial, he tendered it in evidence and it was admitted in evidence as Exhibit 1 without any objection by the appellant or his counsel. In his evidence-in-chief at the trial, he tendered it in evidence and it was admitted in evidence as Exhibit 1 without any objection by the appellant or his counsel. In his evidence in his defence, the appellant did not deny making Exhibit 1 nor retract anything from it. In fact he made no mention of the statement he made to the police and as the prosecution counsel was absent on that day nothing was said about Exhibit 1.

Before making Exhibit 1 it was very clear that the appellant was cautioned in the language he understands; that he was not obliged to say anything and that anything he wished to say would be recorded and might be given in evidence. Exhibit 1 showed that the appellant signed the statement after he made it on the 19th September 1985, the date of the incident, when the facts were fresh in his mind.

In Exhibit 1, the appellant inter alia had stated that:-

“My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house”

…………………….T……………………

In his evidence in chief, the appellant also said:-

“The deceased was my father. The deceased died from injuries I inflicted in his head”

The above statements sufficiently constitute an admission of guilt by a person charged with the murder of his father. There was also nothing on the face of Exhibit 1 itself or from the evidence in the trial court to indicate that the appellant was induced, threatened of forced into making Exhibit 1 held out by a person in authority. See for example the cases of R. v. Marshall-Graham (1967) 2 WLR 1094; Madu Fatumani v. The King (1950) 13 WACA 39. I am therefore satisfied that Exhibit 1 was made voluntarily by the appellant as found by the learned trial judge. The appellant clearly admitted killing his father in Exhibit 1 after he was accused or charged with the murder of the father. Exhibit 1 therefore becomes a relevant fact against the appellant within the provisions of section 27 of the Evidence Act. Also from the evidence of the prosecution witnesses especially PWs 1,2 and 3, and the circumstantial evidence accepted and believed by the learned trial judge, I have no doubt in my mind, that the appellant intended by his act to kill his father, the deceased, or to inflict such grievious bodily harm that was likely to cause his death. See Uyo v. A.G. Bendel State (1986) 1 NWLR (Pt. 17) 418. In the final analysis I will answer issue III in the affirmative.

Issue IV is straight forward. It is whether the defence of provocation can in this case, avail the appellant. It is trite law that in a criminal defences from the evidence in favour of an accused person. See Uwani v. The State (1988) 1 NWLR (pt. 70) 274. It is also common ground that a defence of provocation properly raised will result in reducing the offence of murder to that of manslaughter. See Ajunwa v. The State (1988) 4 NWLR (Pt. 89) 380.

In the instant appeal, the appellant in Exhibit 1, said:-

“My father has been living with us since all the time until this morning 19/9/85 when I killed him because he has been telling me to leave his house with his wife. He also told me to go away from his house with my wife Grace. His wife‘s name is Rose Uluebeka. This morning 19/9/85 members of my family gathered together and started quarrelling with me and at the same time asked me and my wife Grace Uluebeka to leave my father?s house. My father was also present at the gathering, I was provoked this morning 19/9/85 because of home trouble and I took a decision of killing my father and his wife Mrs. Grace Uluebeka”. (Italics mine)

In his evidence in chief in his defence, the appellant while talking about the family meeting also said:-

“Shortly afterwards my wife joined the 1st PW and other members of my family to ridicule (sic) me. Because my wife and my father ridicule (sic) me I was angry and so I went into the room and picked up a cutlass and cut my wife and my father”.

The impression given here by this quotation is that when his father ridiculed him, he (appellant) got angry, went into the room, picked up a cutlass and cut the father with it. This was not the case at all. According to the prosecution evidence, which was unchallenged and which was accepted and believed by the learned trial judge, the appellant met the deceased on his farm where he went to harvest some yam tubers for the appellant to take away, and he matcheted the old man there leaving him ground in a pool of blood. So that even though, the learned trial judge believed the appellant that he was ridiculed and asked to leave his father‘s house at the family meeting which the deceased attended, the appellant did not act at the spur of the moment according to the facts and circumstances of the case when he could not control his anger. In the case of R. v. Duffy (1949) 1 A.E.R. 932, Devlin J. defined “provocation” as “same act or series of acts done by the deceased to the accused which would cause in any reasonable person, and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment no master of his mind. According to this simple definition, for the appellant to rely on provocation, he must have suddenly lost his self-control at the time he matcheted His father as a result of provocation. In this case even if the deceased took part in asking the appellant to leave the house at the family meeting, the act of matcheting did not suddenly happen in the house.

…………………….U……………………

The appellant waited until the deceased went to the farm where he met him and inflicted the fatal matchet cuts on him. Also it is trite law, that provocation given to the offence committed. See Yusuf v. The State (1988) 4 NWLR (pt. 86) 96. I do not think that for merely asking the appellant to leave his father‘s house, he would reasonably be provoked to kill the father especially as the appellant is an “educated and civilised person” as opposed to an “illiterate and primitive peasant” whose passions are far more readily aroused than of a civilised and enlightened person. See the case R. v. James Adekanmi (1944) 17 NLR 99 at page 101.

From all what I have said in my consideration of this issue, I find that provocation as a defence cannot avail the appellant on the facts and circumstances of this case. I therefore answer issue IV in the negative.

For the reasons stated above, and the more detailed reasons given in the leading judgment of my learned brother Ogwuegbu JSC, I find that there is no merit in this appeal. It is accordingly dismissed. I affirm the decision of the Court of Appeal confirming that of the trial court.

Counsel:

I.E. Imadegbelo – for the Appellant

O.S. Uwuigbe (Mrs.) A.C.L.O. Edo State for the respondent.

Before Their Lordships

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Between

AND

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Before Their Lordships

Between

AND

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CHIMA CENTUS NWEZE, J.S.C. (Delivering The Leading Judgment): Way back in November, 2009, the respondent in this appeal and four others, [as accused persons], were arraigned before the High court of the Federal Capital Territory, Abuja. precisely, by an Amended Charge of fifteen counts, dated and filed on November 19, 2009, they were alleged to have committed various offences under the penal code and the Independent Corrupt Practices and Other Related Offences Act, 2000 [ICPC Act, for short].

Judgment

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Justice, Owerri Imo State, delivered on the 18th of February, 2013 in Charge No HOW/51C/2011, wherein the Appellant was found guilty of murder and sentenced to death by hanging. SYNOPSIS OF FACTS The Appellant was arraigned before the Court for murder. He pleaded guilty to the Charge, but the Court however, recorded a plea of “not guilty”.

The prosecution had called six (6) witnesses and tendered exhibits, one of which was the confessional statement of the Accused person (the Appellant herein). PW1 had testified that the Appellant called her husband, Augustine Ndukwu on phone and asked him to come home that his house was on fire, the husband left for his home but never came back. The Appellant confessed to PW1 at the Police Station that the 2nd and 7th Accused persons used him to kill Chief Augustine Ndukwu. The Appellant had denied the crime but later made contradictory confessional statements.

The Appellant had testified in his defence in Igbo language as DW4. ​At the end of the case, the Court below convicted and sentenced the Appellant to death on the strength of his plea of guilty. Dissatisfied the Appellant filed a Notice of Appeal on the 11th day of March, 2013, amended with the leave of Court on the 11th of February, 2021 with four grounds of Appeal. The Appellant filed his brief of argument on the 24th of June, 2021 but same was deemed filed on the 7th of March 2022. It is settled by Philip Ibekwe Esq. The Respondent’s brief was filed on the 21st of February 2022.

It is settled by C. O. Chukwumaeze Esq. The Appellant filed a Reply Brief on the 2nd of March 2022. On the 8th day of June, 2022, the parties adopted their respective briefs of argument. The Appellant proffered three (3) issues for determination from the grounds of Appeal. They are: ISSUES FOR DETERMINATION 1. “Whether the trial Court was right to have convicted and sentenced the Appellant to death on the ground that he pleaded guilty to a capital offence. 2.

Whether in view of the circumstance of this case, the finding that the Appellant stabbed the deceased to death, the conviction and sentence by the trial Court are not altogether unwarranted, unreasonable and unsupported, having regard to the evidence before the Court. 3. Whether the trial Court properly evaluated the evidence adduced before it by the Prosecution and the Appellant before convicting and sentencing the Appellant.

On his part, the Respondent proffered one issue for determination viz: “Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the Appellant on his plea of guilty”. SUBMISSION OF ISSUES Issue 1: The Appellant submits that in capital offences like murder as in this instant case, if the accused pleads guilty to the charge, by convention, the Court enters a plea of not guilty on his behalf and the case is heard and judgment entered as if he pleaded not guilty. He cites NKIE V. FRN (2014) ALL FWLR (Pt. 754) 178 at 188.

The Appellant submits that in the present case, the Court asked no questions to know whether the accused person understood the charge read and explained to him. Indeed, the consequences, nature and implication of the charge. He submits that the trial Court erred in law when after it entered a plea for not guilty and hearing evidence from the prosecution and the Appellant to turn around and convict the Appellant summarily. Issue 2: He submits that it is the duty of the trial Court to act on only admissible evidence before it.

That there is no duty to challenge an inadmissible evidence because it is not even evidence properly before the Court. He cites BUKOLA V. STATE (2018) ALL FWLR (Pt. 943) at 443 at 584. He further submits that it is trite that a Court may convict an accused on his extra-judicial confession upon condition that such statement must be properly proved to have been freely and voluntarily made, unequivocal, direct and positive to warrant and sustain a finding of guilt – ONWE V. STATE (2018) 84 EJSC S7 AT 94.

Submits that the Court did not properly evaluate the evidence adduced before it, having entered a plea of not guilty for the Appellant. Had the Court properly evaluated the evidence, it would have discharged and acquitted the Appellant. Issue 3: Submits that by the provisions of Section 245 of the Criminal Procedure Law of Imo State, every judgment must contain the points of determination and the reasons for the judgment; also cites SOATAN V. STATE (2018) ALL FWLR (Pt. 929) 256 at 276 – 277.

He further submits that the finding of guilt and conviction should be based on the inference drawn from the facts processed by the prosecution and all the admissible evidence relied upon against the appellant rather than his plea of guilt. That the proper manner to evaluate evidence of parties to a case is to place the evidence side by side on an imaginary scale and weigh them to infer which one outweighs the other in terms of probative value. NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 95 EJSC 98 Q 117.

RESOLUTION Indeed, the sole issue for determination proffered by the Respondent is one that would determine this appeal one way or the other for reasons to be proffered later on in this judgment. Was the Court below right to have convicted and sentenced the appellant to death on grounds that he pleaded guilty to a capital offence? ​Generally, when an accused pleads guilty to an offence charged, the Court can proceed to convict him. However, in cases that attract capital punishment, the Court would enter a plea of “NOT GUILTY” and call on the prosecution to prove its case as required by law.

TOBBY V. STATE (2001) LPELR – 3252 (SC). From records, six witnesses testified for the prosecution. The Appellant testified as DW4. Other witnesses testified for the defence. Exhibits were tendered. The judgment of the Court below reads as follows: “In the case of the 1st accused, Uchenna Ndukwu he pleaded guilty aforesaid. Not much can be said about him, but to clearly and legally convict him as charged. He is therefore found guilty as charged”.

I wonder why not much can be said about the Appellant in a situation where the prosecution called six witnesses and the defence called eight witnesses and exhibits tendered as well as the Appellant’s confessional statement. ​The Appellant had argued that the Court below erred when after it entered a plea of not guilty and hearing evidence from the prosecution and the Appellant, to turn around in its judgment to convict and sentence the Appellant on his plea of guilty without placing any reliance or probative value and/or weighing the evidence adduced before it by the prosecution who has the burden under Section 131 and 135 of the Evidence Act 2011, to prove his case against the Appellant beyond reasonable doubt.

In RABIU V. STATE (2004) FWLR (Pt. 238) 521 – it was held that a Court of law has a duty to warn itself of the danger of convicting solely on a plea of guilty. Submits that a plea of guilty is not and cannot be conclusive proof of guilty in law. It is my view that in a situation such as the present one, it was incumbent on the Court below to warn itself of the danger of convicting an accused solely on his plea of guilty. This is because a plea of guilty is not and cannot be a conclusive proof of guilt with regards to capital offence in law.

A judgment of a Court should fundamentally contain a brief statement of the type of action, setting out the claim or offence in full; a review of the evidence led; appraisal and evaluation of such evidence; making findings of fact therefrom, consideration of the legal submission made; and conclusion. OYEDELE V. STATE (2019) LPELR – 47576 (SC). From records, the Court below did not comply with the above requirements. The evidence available to the Court, both oral and documentary were not appraised. The evidence was not evaluated.

After the Court below entered a plea of not guilty, and tried the Appellant, it failed to indicate upon what grounds it convicted the Appellant and sentenced him to death. I wonder why the Court below could write a four-sentence remark in its judgment of the 18th of February, 2013 – pages 263 – 300. There was in my view no judgment given regarding the Appellant.

There is no doubt that the Appellant was properly arranged before the Court below. Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court, that saw and assessed the credibility of the witnesses. The Appellate Court does not enjoy this much advantage. The law is elementary that the trial judge is required to evaluate and make specific findings of facts, before coming to a conclusion.

Failure to do so will not only vitiate its conclusion, but will give this Court power to influence and evaluate such evidence and make proper findings as long as the findings do not depend on the credibility of witnesses. In LAGGA V. SARHUNA (2008) LPELR 1740 (SC), it was held inter alia that where the evaluation of evidence would require the determination of the credibility of witnesses (as in the present case) the Appellate Court cannot evaluate. The only option in such a situation is an order for retrial.

It is no gainsaying, that the Court below failed woefully to evaluate the evidence before it and if this Honurable Court would do it, it must inevitably entail the determination of the credibility of witnesses who testified in the Court below. In the present case, six witnesses testified for the prosecution and eight witnesses testified for the defence (a total of 14 witnesses). In OMOSAYE V. STATE (2014) LPELR 22059 (SC), the Apex Court held inter alia, that: “….the Appellant was charged with the offence of murder which carries a serious consequence – death.

More injustice will be done if the order for retrial is not granted having regard to the proof of evidence filed by the prosecution.” ​Before ordering a retrial, the Appellate Court must consider the following viz: 1. That there has been such an error in law or an irregularity in procedure which renders the trial a nullity. 2. That apart from the error of law or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused. 3. That there are no special circumstances which would make it unjust, to order a retrial. 4.

That the offence for which the accused is charged and their consequences are serious in nature. 5. That to refuse an order of retrial would occasion a greater injustice. The conviction of the Appellant was not predicated on anything known to law. The issue raised by both parties whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the Appellant on his plea of guilty, must be answered in the affirmative. The issue is resolved in favour of the Appellant and against the Respondent. The Appeal succeeds and same is hereby allowed.

The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 18th day of February, 2013 in Charge Number HOW/51C/2011 is hereby set aside. This case shall accordingly be remitted to the Chief Judge of Imo State, for retrial.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA N. PEMU, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. I am in agreement with my learned brother’s reasoning and conclusions. I also find this appeal meritorious. The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 18th day of February, 2013 in Charge Number: HOW/51C/2011 is accordingly set aside.

This case shall be remitted to the Chief Judge of Imo State, for reassignment to another Judge of the High Court for a retrial.

IBRAHIM WAKILI JAURO, J.C.A.: I have read in draft the judgment of my learned brother Rita N. Pemu, JCA (Presiding Justice). I am in total agreement with his lordship that the case was not well articulated by the trial judge despite the evidence available. The proper order to make in the circumstances is indeed to order a retrial. I so order.

Judgment

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Justice, Owerri Imo State, delivered on the 18th of February, 2013 in Charge No HOW/51C/2011, wherein the Appellant was found guilty of murder and sentenced to death by hanging. SYNOPSIS OF FACTS The Appellant was arraigned before the Court for murder. He pleaded guilty to the Charge, but the Court however, recorded a plea of “not guilty”.

The prosecution had called six (6) witnesses and tendered exhibits, one of which was the confessional statement of the Accused person (the Appellant herein). PW1 had testified that the Appellant called her husband, Augustine Ndukwu on phone and asked him to come home that his house was on fire, the husband left for his home but never came back. The Appellant confessed to PW1 at the Police Station that the 2nd and 7th Accused persons used him to kill Chief Augustine Ndukwu. The Appellant had denied the crime but later made contradictory confessional statements.

The Appellant had testified in his defence in Igbo language as DW4. ​At the end of the case, the Court below convicted and sentenced the Appellant to death on the strength of his plea of guilty. Dissatisfied the Appellant filed a Notice of Appeal on the 11th day of March, 2013, amended with the leave of Court on the 11th of February, 2021 with four grounds of Appeal. The Appellant filed his brief of argument on the 24th of June, 2021 but same was deemed filed on the 7th of March 2022. It is settled by Philip Ibekwe Esq. The Respondent’s brief was filed on the 21st of February 2022.

It is settled by C. O. Chukwumaeze Esq. The Appellant filed a Reply Brief on the 2nd of March 2022. On the 8th day of June, 2022, the parties adopted their respective briefs of argument. The Appellant proffered three (3) issues for determination from the grounds of Appeal. They are: ISSUES FOR DETERMINATION 1. “Whether the trial Court was right to have convicted and sentenced the Appellant to death on the ground that he pleaded guilty to a capital offence. 2.

Whether in view of the circumstance of this case, the finding that the Appellant stabbed the deceased to death, the conviction and sentence by the trial Court are not altogether unwarranted, unreasonable and unsupported, having regard to the evidence before the Court. 3. Whether the trial Court properly evaluated the evidence adduced before it by the Prosecution and the Appellant before convicting and sentencing the Appellant.

On his part, the Respondent proffered one issue for determination viz: “Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the Appellant on his plea of guilty”. SUBMISSION OF ISSUES Issue 1: The Appellant submits that in capital offences like murder as in this instant case, if the accused pleads guilty to the charge, by convention, the Court enters a plea of not guilty on his behalf and the case is heard and judgment entered as if he pleaded not guilty. He cites NKIE V. FRN (2014) ALL FWLR (Pt. 754) 178 at 188.

The Appellant submits that in the present case, the Court asked no questions to know whether the accused person understood the charge read and explained to him. Indeed, the consequences, nature and implication of the charge. He submits that the trial Court erred in law when after it entered a plea for not guilty and hearing evidence from the prosecution and the Appellant to turn around and convict the Appellant summarily. Issue 2: He submits that it is the duty of the trial Court to act on only admissible evidence before it.

That there is no duty to challenge an inadmissible evidence because it is not even evidence properly before the Court. He cites BUKOLA V. STATE (2018) ALL FWLR (Pt. 943) at 443 at 584. He further submits that it is trite that a Court may convict an accused on his extra-judicial confession upon condition that such statement must be properly proved to have been freely and voluntarily made, unequivocal, direct and positive to warrant and sustain a finding of guilt – ONWE V. STATE (2018) 84 EJSC S7 AT 94.

Submits that the Court did not properly evaluate the evidence adduced before it, having entered a plea of not guilty for the Appellant. Had the Court properly evaluated the evidence, it would have discharged and acquitted the Appellant. Issue 3: Submits that by the provisions of Section 245 of the Criminal Procedure Law of Imo State, every judgment must contain the points of determination and the reasons for the judgment; also cites SOATAN V. STATE (2018) ALL FWLR (Pt. 929) 256 at 276 – 277.

He further submits that the finding of guilt and conviction should be based on the inference drawn from the facts processed by the prosecution and all the admissible evidence relied upon against the appellant rather than his plea of guilt. That the proper manner to evaluate evidence of parties to a case is to place the evidence side by side on an imaginary scale and weigh them to infer which one outweighs the other in terms of probative value. NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 95 EJSC 98 Q 117.

RESOLUTION Indeed, the sole issue for determination proffered by the Respondent is one that would determine this appeal one way or the other for reasons to be proffered later on in this judgment. Was the Court below right to have convicted and sentenced the appellant to death on grounds that he pleaded guilty to a capital offence? ​Generally, when an accused pleads guilty to an offence charged, the Court can proceed to convict him. However, in cases that attract capital punishment, the Court would enter a plea of “NOT GUILTY” and call on the prosecution to prove its case as required by law.

TOBBY V. STATE (2001) LPELR – 3252 (SC). From records, six witnesses testified for the prosecution. The Appellant testified as DW4. Other witnesses testified for the defence. Exhibits were tendered. The judgment of the Court below reads as follows: “In the case of the 1st accused, Uchenna Ndukwu he pleaded guilty aforesaid. Not much can be said about him, but to clearly and legally convict him as charged. He is therefore found guilty as charged”.

I wonder why not much can be said about the Appellant in a situation where the prosecution called six witnesses and the defence called eight witnesses and exhibits tendered as well as the Appellant’s confessional statement. ​The Appellant had argued that the Court below erred when after it entered a plea of not guilty and hearing evidence from the prosecution and the Appellant, to turn around in its judgment to convict and sentence the Appellant on his plea of guilty without placing any reliance or probative value and/or weighing the evidence adduced before it by the prosecution who has the burden under Section 131 and 135 of the Evidence Act 2011, to prove his case against the Appellant beyond reasonable doubt.

In RABIU V. STATE (2004) FWLR (Pt. 238) 521 – it was held that a Court of law has a duty to warn itself of the danger of convicting solely on a plea of guilty. Submits that a plea of guilty is not and cannot be conclusive proof of guilty in law. It is my view that in a situation such as the present one, it was incumbent on the Court below to warn itself of the danger of convicting an accused solely on his plea of guilty. This is because a plea of guilty is not and cannot be a conclusive proof of guilt with regards to capital offence in law.

A judgment of a Court should fundamentally contain a brief statement of the type of action, setting out the claim or offence in full; a review of the evidence led; appraisal and evaluation of such evidence; making findings of fact therefrom, consideration of the legal submission made; and conclusion. OYEDELE V. STATE (2019) LPELR – 47576 (SC). From records, the Court below did not comply with the above requirements. The evidence available to the Court, both oral and documentary were not appraised. The evidence was not evaluated.

After the Court below entered a plea of not guilty, and tried the Appellant, it failed to indicate upon what grounds it convicted the Appellant and sentenced him to death. I wonder why the Court below could write a four-sentence remark in its judgment of the 18th of February, 2013 – pages 263 – 300. There was in my view no judgment given regarding the Appellant.

There is no doubt that the Appellant was properly arranged before the Court below. Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court, that saw and assessed the credibility of the witnesses. The Appellate Court does not enjoy this much advantage. The law is elementary that the trial judge is required to evaluate and make specific findings of facts, before coming to a conclusion.

Failure to do so will not only vitiate its conclusion, but will give this Court power to influence and evaluate such evidence and make proper findings as long as the findings do not depend on the credibility of witnesses. In LAGGA V. SARHUNA (2008) LPELR 1740 (SC), it was held inter alia that where the evaluation of evidence would require the determination of the credibility of witnesses (as in the present case) the Appellate Court cannot evaluate. The only option in such a situation is an order for retrial.

It is no gainsaying, that the Court below failed woefully to evaluate the evidence before it and if this Honurable Court would do it, it must inevitably entail the determination of the credibility of witnesses who testified in the Court below. In the present case, six witnesses testified for the prosecution and eight witnesses testified for the defence (a total of 14 witnesses). In OMOSAYE V. STATE (2014) LPELR 22059 (SC), the Apex Court held inter alia, that: “….the Appellant was charged with the offence of murder which carries a serious consequence – death.

More injustice will be done if the order for retrial is not granted having regard to the proof of evidence filed by the prosecution.” ​Before ordering a retrial, the Appellate Court must consider the following viz: 1. That there has been such an error in law or an irregularity in procedure which renders the trial a nullity. 2. That apart from the error of law or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused. 3. That there are no special circumstances which would make it unjust, to order a retrial. 4.

That the offence for which the accused is charged and their consequences are serious in nature. 5. That to refuse an order of retrial would occasion a greater injustice. The conviction of the Appellant was not predicated on anything known to law. The issue raised by both parties whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the Appellant on his plea of guilty, must be answered in the affirmative. The issue is resolved in favour of the Appellant and against the Respondent. The Appeal succeeds and same is hereby allowed.

The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 18th day of February, 2013 in Charge Number HOW/51C/2011 is hereby set aside. This case shall accordingly be remitted to the Chief Judge of Imo State, for retrial.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA N. PEMU, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. I am in agreement with my learned brother’s reasoning and conclusions. I also find this appeal meritorious. The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 18th day of February, 2013 in Charge Number: HOW/51C/2011 is accordingly set aside.

This case shall be remitted to the Chief Judge of Imo State, for reassignment to another Judge of the High Court for a retrial.

IBRAHIM WAKILI JAURO, J.C.A.: I have read in draft the judgment of my learned brother Rita N. Pemu, JCA (Presiding Justice). I am in total agreement with his lordship that the case was not well articulated by the trial judge despite the evidence available. The proper order to make in the circumstances is indeed to order a retrial. I so order.

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The State (1995)9 NWLR (Pt.421) 540.

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Nimpar, Ogakwu and Obaseki-Adejumo JJCA delivered on the 13th April, 2018 in which the appellant’s conviction and sentence by the trial Court per Ofili-Ajumogobia J. was affirmed by the Court below.

BACKGROUND FACTS The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise know as marijuana). The appellant pleaded guilty to the charge. The prosecution tendered a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA.

On this basis, the trial Court in its judgment delivered on 2nd March 2016 convicted the appellant of the Charge and sentenced him to 25 years imprisonment with hard labour.

​The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9. The alleged confessional statement written in the Pidgin English was admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B.

Prosecution’s counsel further urged the Court to convict the appellant ” …in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015″. The trial Court then adjourned to 2nd March, 2016 for judgment and same was delivered on that day.

​SUMMARY OF EVIDENCE The appellant was alleged to have dealt in 2.0 kilogrammes of Cannabis Sative (Marijuana) The evidence upon which other exhibits rested was the alleged confessional statement of the appellant. The story therein painted a graphic picture of how the appellant sold Cannabis Sativa at Tipper Garage Ojodu Berger.

The alleged confession which was transcribed from ‘Pidgin English’ to English language showed that the appellant is an illiterate. The confession was written by one Oligbo Okey who works for the NDLEA, in the absence of the appellant’s counsel. Exhibits PDI, PD2, PD4, PD5, PD6, PD7, PD8 and PD9 which emanated from NDLEA and tried to establish the Charge against the appellant are all evidentially premised on his alleged confession.

​The alleged confession further represented that he, appellant was taken to the NDLEA office where the substance allegedly recovered was found to be Cannabis Sativa. Armed with the purported confessional statement it obtained from the appellant coupled with the guilty plea of the appellant, the Prosecution urged the Court to convict him in line with Section 356 (2) of the Administration of Criminal Justice Act 2015.

In his judgment dated 2nd March 2016, the Learned Trial Judge convicted the appellant of dealing in Cannabis Sativa and sentenced him to 25 years imprisonment with hard labour- Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on the 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.

Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.

On the 3/2/2022 date of hearing, respondent and counsel were absent though served on 31/1/2022 and the appeal was heard on appellant’s brief alone by order made on 14/1/2022.

​Learned Senior Advocate, C.O.P.

Emeka adopted the brief of argument of the appellant filed on 27/12/2018 in which he distilled three issues for determination, viz: (1) Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence (2) Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with? (3) Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?

​Learned counsel for the appellant submitted that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the alleged confessional statements. That those exhibits having been admitted much weight ought not to be laid on them in the light of Section 17 (1) (2) of the Administration of Criminal Justice Act (ACJA). He cited Madubigwe Awelle v The People of Lagos State (2016) LPELR-41395 CA; Mkpa v Mkpa (2010) 14 NWLR (pt.1214) 612 at 647 etc.

It was further contended for the appellant that the Court below wrongly affirmed the appellant’s conviction based on his purported plea of guilty when the learned trial Judge failed to comply with the mandatory provisions of the ACJA

Learned counsel for the appellant submitted that there was nothing on record to show that the charge was read and explained to the appellant in Pidgin English that he understood and so the conviction should fail. He cited State v Gwonto (1983) 1 SCNLR 142.

That the non-compliance with the statutory provisions on arraignment amounted to denying the appellant of his rights and that led to a miscarriage of justice. He cited Udofia v State (1988) 3 NWLR (pt.84) 533.

For the appellant, it was submitted that the prosecution failed to prove the essential elements of the charge beyond reasonable doubt. He cited Udosen v Sate (2007) 4 NWLR (pt.1023) 125 at 161 etc.

RESOLUTION The appellant was represented by counsel at the stage of arraignment and after the reading and explanation of the charge to the accused/appellant by the Court. The appellant pleaded guilty to the one count charge and the prosecution tendered the substance and other relevant materials as exhibits among which was the confessional statement made by the appellant.

The stance taken by the appellant is that Section 17 (2) of the Administration of Criminal Justice Act, 2015 was not complied with and so the conviction a nullity. To fully appreciate the statutory provision I shall quote the stipulation thus:-

Section 17(2) of the Administration of Criminal Justice Act 2015 states thus: “Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice.

Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.” ​The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements. That Court had stated thus: “This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section.

Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”. In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said: “Generally the word ‘may’ always means ‘may’.

It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker ​(1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used.

See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts.

In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”.

In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation. ” Per NNAMANI, JSC. ​The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.

Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial.

See Emedo v The State (2002) 15 NWLR (pt.789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court. ​The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility.

That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.

​With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint.

To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (pt.482) 386.

The point has to be brought out that the appellant was represented by counsel who did not raise the issue of the appellant not understanding the English language which is the language of the Court. Again to be said is that appellant gave his answers on arraignment in English language and so the current grouse of the appellant’s counsel is strange in the conflicting instance of an accused/appellant answering questions in English language and now turning around to claim a lack of understanding of the Court proceedings.

Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.

The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later.

See Adeleke v State (2013) LPELR-20971 SC. It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877. ​In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty.

Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129. The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.

In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC). In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:- See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:- “The law therefore provides for conviction upon a guilty plea without any further formality.

A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held: “The requirement of the law before there could be a conviction on a plea of guilty are that: i. The Court must be satisfied that the accused understands the charge against him; ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii. The Court must ask the accused if he admits all the facts alleged by the prosecution; iv.

The Court must be satisfied that the accused intends to admit the commission of the offence charged; v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The apex Court on the consequences of a guilty plea held thus: “It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.” see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt.II) 43. See also NKIE V.

FRN (2014) LPELR-22877 (SC). ​Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more. Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction.

The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pta1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.

​In conclusion and the foregoing, this appeal definitely lacks merit and I do not hesitate in dismissing it. I affirm the decision of the Court of Appeal which in turn affirmed the judgment, conviction and sentence of the trial Court.

Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. I am at one with His Lordship that the appeal is devoid of merit and should be dismissed.

This is a case in which the appellant was represented by counsel at his arraignment where he pleaded guilty to the one count charge of dealing in cannabis sativa (otherwise known as marijuana) contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency (NDLEA) Act cap. N30 LFN 2004.

At the trial of the case, the prosecution tendered various exhibits, including the appellant’s confessional statement. His statement made in Pidgin English was admitted and marked Exhibit PD3A, while the English translation was admitted and marked Exhibit PD3B. There was no objection to the tendering of any of the exhibits including Exhibits PD3A and PD3B.

​In the appeal before us, it is the appellant’s contention that his arraignment was invalid because the record does not show that the charge was read and explained to him in Pidgin English, which is the language he understands and also that the statement Exhibit PD3A and its translation, Exhibit PD3B were not recorded in compliance with the provisions of Section 17(2) of the Administration of Criminal Justice Act (ACJA), 2015.

My learned brother has dealt extensively with these issues in the lead judgment. I shall add just a few comments by way of emphasis.

The record of the trial Court on the date of arraignment reads thus: “KALU: One count charge dated 28/11/14. I apply that the charge be read. COURT: Charge read and explained to the accused person. ACCUSED PERSON: I understand (the) charge, I plead guilty.”

As observed earlier, the appellant was represented by counsel. There is nothing on the record to show that he did not understand the charge read to him, Indeed, he stated clearly, “I understand the charge.” As rightly observed by the Court below, if the appellant did not understand the charge, it was his duty or the duty of his counsel to so inform the Court. See: Akeem Vs The State (2017) LPELR-42465(SC) @ 27-30 D-A; 33 C- F; Dibie vs The State ​(2007) LPELR-941 (SC) @ 7-8 C-A.

In any event, the Court is entitled to take judicial notice of the fact that Pidgin English is a specie of “proper” English freely and commonly used in Nigeria. A person who speaks Pidgin English usually understands “proper” English although he may not be able to communicate effectively in “proper” English, In a recent decision of this Court in Olanipekun vs The State (2016) LPELR-40440 (SC), the statement of the appellant was challenged on the ground that it was recorded in Pidgin English and the prosecution failed to tender the English translation.

His Lordship Akaahs, JSC at pages 8-9 D-A (Supra) stated thus: “It is erroneous for anyone to assume that people who communicate in Pidgin English do not understand proper or Queen’s English, especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in the proper English. Consequently, a statement that was said to have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin English can be recorded in proper English.

I therefore agree with my learned brother, Peter-Odili, JSC, that the arraignment of the appellant in the circumstances of this case, was proper and in accordance with the law.

The challenge as to the admissibility of Exhibit PD3A and its translation, Exhibit PD3B, is a non-starter in my respectful view. It is very well settled that the appropriate time to raise an objection to the admissibility of a confessional statement on whatever ground, is during the trial at the stage when the prosecution seeks to tender it in evidence. See:Isong vs The State (2016) LPELR-40609 (SC) @ 28 D-F; Oseni vs The State (2012) LPELR-7833 (SC) @ 37-38 B-E; State vs Ibrahim (2019) LPELR-47548 (SC) @ 19 B–F.

The compliance or otherwise with Section 17(2) of the ACJA ought to have been raised at the time the statement was tendered in evidence. It is too late to raise the issue on appeal either before the lower Court or before this Court.

​Finally, the appellant, duly represented by counsel, having understood the charge read to him and pleaded guilty thereto, the only duty upon the Court was to proceed to conviction.

The procedure to be followed where an accused pleads guilty to a non-capital offence is set out in Section 356(2) of the ACJA as follows: “1356(2) Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or sufficient cause why sentence should not be passed, the Court shall proceed to sentence.” The issue of proof of the charge beyond reasonable doubt no longer arises. See: Sunday Vs FRN (2018) LPELR-46357 (SC) @ 24 C-F; Omoju vs FRN (2008) 7 NWLR (Pt. 1085) 38; (2008) LPELR-2647 (SC) @ 18 E-F.

In Orji vs FRN (2019) LPELR-46534(SC) @ 6-8 F-A, His Lordship, Rhodes-Vivour, JSC held thus: “A plea of guilty in a criminal charge is made by an accused person who does not contest the charge. This arises where an accused person having committed a crime is simply saying by pleading guilty that he is responsible for the crime. A plea of guilty to a charge is conclusive evidence that the accused committed the offence. When an accused person is represented by counsel and the charge is read and explained to him to the satisfaction of the Court, the Court can proceed to convict forthwith.

There is no better evidence than a plea of guilty, It is even better than eyewitness… The appellant was convicted on his plea of guilty. Thereafter, any exhibits tendered are surplusage as the plea of guilty is conclusive proof that the accused person (the appellant) committed the offence.”

In light of my findings above and for the more detailed reasoning in the lead judgment, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court affirming the appellant’s conviction and sentence by the trial Court is hereby affirmed.

Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Mary Ukaego Peter-Odili, JSC obliged me a draft of the lead judgment just delivered and I am in complete agreement with the reasons and conclusion reached therein. The facts giving birth to the appeal has already been summarized in the lead judgment and I shall therefore avoid a repeat of exercise except to recapitulate a point therein as occasion may require in this judgment.

​The main issue in this appeal is whether in view of the Appellant’s confessional statement in exhibit PD3A translated in exhibit PD3B and his plea of guilt, the Court was right to convict him summarily.

Section 274(1) and (2) of the Administration of Criminal Justice Act, 2015 provides that:- “(1) Where a defendant pleads guilty to an offence with which he is charged, the Court shall:- (a) record his plea as nearly as possible; (b) invite the prosecution to state the fact of the case; and (c) enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution; or (2) Where the Court is satisfied that the defendant intended to admit the truth of all the essential elements of the offence for which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary. (3) …” ​From the above provision, it is clear that where an accused person pleads guilty to a charge and the Court is satisfied that he indeed intended to admit all the essentials of the offence, the only option open to the Court is to convict him summarily, except where the offence is a capital offence where death is the penalty prescribed by law, then a plea of guilt would not be recorded.

See Olabode v State (2009) 11 NWLR (pt,1152) 254; Paulinus Tobi (Udo Abby) v The State (2001) 4 SC (pt. 11) 160. In the words of that provision, admitting the truth of all the essential elements of the offence, presupposes to me, that the accused understood the charge read to him and he intended to plead guilty.

Construing that language of the statute in Section 218 of the Criminal Procedure Act, which is in pari materia with the above provision, Niki Tobi, JSC (of blessed memory) in the case of Omoju v Federal Republic of Nigeria (2008) 7 NWLR (pt.1085) 38 (2008) All FWLR (pt,415) 1656 at page 1675-1676 stated as follows:- “I do not see any language in Section 218 suggesting that the Court must ask the Appellant if he admits all the essentials of the offence of which he pleads guilty.

All that the Section requires is that the Court must be satisfied that the accused person intended to admit the truth of all the essentials of the offence. In the language of the section, the exercise is within the mind of the Judge and does not go out to meet the accused, Whether the Judge is satisfied or not remains his subjective judgment. The moment the Judge is so satisfied he can convict and pass the appropriate sentence.”

In the instant case, in view of the Appellant’s confessional statement in exhibits PD3A and PD3B, the learned trial Judge must have been satisfied that the Appellant intended to admit the truth of all the essential elements of the offence.

Talking about confessional statement which has generally been referenced as the strongest evidence against an accused person, I have stated before in the case of Nkie v Federal Republic of Nigeria (2014) 13 NWLR (pt1424) 305 and I shall reiterate here that a confessional statement is so considered as the best evidence against an accused person because no man in his right senses will make admissions prejudicial to his interest and safety if the facts are not true and correct.

See also Section 28 of the Evidence Act, 2011, Oseni v State (2012) 5 NWLR (pt.1293) 351; Dibie v State (2007) 9 NWLR (pt.1038) page 30.

​The appellant’s contention in this appeal is that there were procedural irregularities before the conviction and sentencing in the sense that his lawyer was not present when he made exhibits PD3A and PD3B as prescribed by Section 17 of the Administration of Criminal Justice Act and also that he was not provided with an interpreter during his arraignment for which reasons the conviction should be upturned. The question then is did he object to the charge being read to him at the earliest opportunity?

The law is trite that once an accused person pleads to a charge before the Court without raising any objection, it presupposes that he understands the charge read to him and the plea is valid. Otherwise, he would have objected to the charge or at least indicated to the Court that he does not understand the charge, especially where he is not represented by counsel. See Okewu v Federal Republic of Nigeria (2012) 9 NWLR (pt,1305) page 327. ​In this case, the record of appeal shows that the Appellant was represented by counsel and he spoke English language during his arraignment.

Having failed to object before his plea, he cannot thereafter complain of any perceived irregularity which occurred before his plea. Again, his plea of guilt foreclosed the procedural step of going into trial. The only thing the Court had to do which it did was to convict and sentence him accordingly. The act of tendering exhibits by the respondent after the plea, was, in my opinion, an exercise in surplusage, to remove any doubt whatsoever in the mind of the trial Court to convict the Appellant.

In the final analysis, I hold that both the appellant’s confessional statement and his plea of guilt obliterates any form of procedural irregularity perceived to have occurred before his arraignment. The Court rightly convicted and sentenced him summarily upon his plea of guilt. This appeal is without merit and is hereby dismissed. The judgment of the Court below which upheld the conviction and sentence of the appellant is hereby affirmed.

Appeal dismissed.

​ABDU ABOKI, J.S.C.: I have had the opportunity of reading in draft, the lead judgment of my Learned Brother, MARY UKAEGO PETER-ODILI, JSC I am in complete agreement with his Lordship’s reasoning and conclusion, and do not wish to add anything more.

Accordingly, the appeal fails and it is hereby dismissed.

The conviction and sentence passed on the appellant is affirmed.

MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning aptly expressed in the judgment just delivered by my learned brother, the Hon. Justice M. U. Petey Odili, JSC, that the instant appeal is lacking in merits. Unhesitatingly, I too hereby dismiss the appeal and affirm the decision of the Court of Appeal, coram Nimpar, Ogakwil and Obaseki-Adejumo, JJCA, delivered on 13/4/2018 in appeal No. CA/L/734c/2016. ​Appeal dismissed

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the circumstances, this Court cannot intervene.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As this Court held inAfolalu v The State (2010) 16 NWLR (pt. 1220) 584, 616, paras A-C: Identification parade is not a sine qua non to a conviction for a crime alleged, it is only essential in the following circumstances: (a) Where the victim did not know the accused (person) before and the first acquaintance with him was during the commission of the offence; (b) Where the victim or witness was confronted by the offender for a very short time; and (C) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused (person).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

​MUSA

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

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

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

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

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

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

​UWANI

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V. OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC).

PER ADAMU JAURO, J.S.C EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The charge defended by the Appellant alleges: That you NURA ALIYU of No. 110, Zamfarawa Road, Funtua, Funtua Local Government Area of Katsina State on or about the 11th day of August, 2006 around 08.00 hrs at Government Girls Secondary School Funtua in Funtua Local Government within the Funtua Judicial Division committed the offence of culpable homicide punishable with death by doing an act to wit: stabbing one Jamilu Yahaya with a knife on the head and stomach with knowledge that such is likely to cause death and it it did cause his death and you thereby committed an offence punishable under Section 221 of the Penal Code.

The charge was accompanied with the Proofs of Evidence. In the course of the trial, the prosecution, through the PW. 1, tendered in evidence, the confession of the Appellant, as the accused person, contained in Exhibits A and A1. The Appellant was represented by Counsel. The Counsel, after conferring with the Accused/Appellant, did not oppose or object to the confessional statement being admitted in evidence against the Defendant. Thus, the making and the voluntariness of the making of Exhibits A & A1, were seemingly no longer in issue.

Exhibit A is the Hausa version of the statement; while Exhibit A1 was the English version.

However at page 32, upon the statement read to the Defendant in open Court the Appellant, as the Defendant, retorted, by way of correction; That is not the correct statement I made. I actually used my shovel and not knife on the victim.

The voluntariness of the making of the confession, subject to the correction made by the Defendant, was at the trial Court, not in issue. Even when that was not an issue; the PW.2 at page 33 of the records was on hand to corroborate the PW.1 as to the voluntariness of the making of the confession in Exhibits A & A1.

He was not cross-examined on this aspect of his evidence. Facts not disputed and/or challenged are always taken as admitted and established.

However, in amazing desperation as it appears, the Appellant’s Counsel in paragraph 21 of the Appellant’s Brief submitted that – In spite of unequivocal challenge on (sic) the confessional statement by the Appellant, the trial Court held that the denial amounted to a corroborative evidence of the confessional statement, and that the “corroborated confessional statement” together with the testimonies of the PW.1 and PW.4 are sufficient proof that the Appellant caused the death of the deceased.

The lower Court also chose to align with the reasoning of the trial Court, by taking the view that there was no legitimate challenge to the confessional statement, and accordingly, the trial Court had no cause to seek corroborative evidence before relying on the confessional statement in convicting the accused person.

The lingua franca of the two Courts below is English Language. Page 32 of the records is the proceeding of the trial Court written in simple laconic English that would not take a final year pupil of a Primary School preparing for his Common Entrance to comprehend. Here is a lawyer, before us at the Supreme Court appearing not to understand very simple English Language. And it is not to his credit to insist that he has come before us merely to confuse issues and thus, pander to the beer parlour gossip or glib that the lawyer is he who turns black into white and vice versa.

This common man’s impression of the lawyer, though false, should of course be scandalous of us all lawyers!!

The Appellant’s lawyer is, like every lawyer, an officer of the Court enjoined not to do any act or conduct himself in any manner that will adversely affect the administration of justice. A deliberately mischievous distortion of facts, no doubt, is a conduct unbecoming which is not only capable of adversely affecting the administration of justice, but does actually affect the administration of justice. Every lawyer appearing in his professional capacity before a Court shall deal with the Court mostly candidly and fairly.

Rules 30 and 32 of the Rules of Professional Conduct for Legal Practitioners, 2007 should, and indeed, offer very basic precept to every lawyer called to the Nigerian Bar and enrolled in the Supreme Court after Law School. It is not palatable to call an officer of this Court a liar, as I am tempted to call the Appellant’s Counsel.

​My Lords, in open Court when Exhibits A & A1 were being proposed to the trial Court to be admitted in evidence as his confession to the alleged offence, the defence counsel, after due consultation, albeit briefly, informed the trial Court that they had no objection. Exhibits A & A1 were accordingly admitted in evidence unopposed. No issue of the confession being recorded involuntarily or oppressively (Section 29 of the Evidence Act, 2011) was raised. The PW.2, at page 33 of the record, further corroborated the PW.1, that confession (in Exhibits A & A1) was voluntarily recorded.

He was not challenged or cross-examined. I do not, in the circumstance, agree with the Appellant’s Counsel that the mere fact of the Appellant proceeding to correct the slip in the statement as to the offensive weapon used on the victim - that it is a shovel, and not a knife, amounted to retraction of the confession. It was not. In THE STATE v JAMES GWANGWAN (2015) 13 NWLR (pt. 1477) 600, Okoro, JSC, stated and I agree that a retraction means to say that something you had said earlier is not true or correct or that you did not mean it.

It is therefore not a retraction to correct a mere slip in the previous statement in order that the substance of the previous statement may be more meaningful. It is not the law that a retracted confessional statement ceases to have probative value. Where a statement is subsequently retracted, after it had been admitted in evidence, and it forming part of the prosecution’s case, the trial Court is bound to consider its probative value viz-a-viz the retraction: EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; EKPE v. THE STATE (1994) 9 NWLR (pt. 368) 263; LEGI MOHAMMED v.

THE STATE (2019) LPELR-46420 (SC). When a Defendant retracts his previous statement to the Police Investigators, duly recorded under caution (and subsequently proved to have been made voluntarily), in his testimony in open Court at his trial; his testimony is usually treated as unreliable having been effectively rebutted. In the instant case, the purported retraction was being skillfully crafted to fit into the rule in UMANI v.

THE STATE (1988) 1 NWLR (pt. 70) 270; (1988) 2 SC (pt. 1) 88 at 98 to the effect that when an extra-judicial statement is retracted by the alleged maker, both the statement and the testimony retracting it are advisedly taken as unreliable. I had earlier stated in this judgment that, notwithstanding the unwholesome antics of the Appellant’s Counsel, the purported retraction was not actually a retraction of his confession in Exhibits A & A1. The rules applicable to retracted statement will therefore not apply in the instant case.

Exhibits A & A1, are the confession of the Appellant made voluntarily. It was recorded by the PW. 1. The PW.2 corroborated the PW.1 that the Appellant voluntarily made the confession under caution. Apart from the defence not opposing its admissibility and admission in evidence; the Appellant further made corrections therein. In his subsequent defence testimony, as DW.1, the Appellant told the trial Court that “the police did not take (his) statement”. He was just flippantly enjoying the luxury of lie telling.

No eyewitness testified. The PW. 1, PW. 2 and PW. 3 were police crime investigators. The most material aspect of the evidence of PW. 1 and PW. 2 is that, the Appellant voluntarily confessed to the crime alleged and the confession was recorded in Exhibits A & A1. The evidence of the duo debunk the subsequent testimony of the Appellant that “the police did not take (his) statement”.

​The PW. 4 was the medical officer who conducted the post mortem examination on the body of the deceased victim of the Appellant. The PW.4 issued his report in Exhibit C. PW. 4, adumbrating on his post mortem report, averred “that a sharp object must have been used to inflict the wound on the victim”. There is no reasonable doubt about that. The Appellant himself, correcting the prosecution, stated that he “actually used (his) shovel and not knife on the victim”. The cause of death, as found in Exhibit C, is not in any doubt.

PW. 4 rushed the deceased “to the theatre for an emergency surgery” to save his life, but unfortunately he died before reaching the theatre. The PW. 4 described the injury thus - “The injury was a stab injury. It involved the biggest intestine – and one of the biggest blood vessels. The stab wound penetrated those parts I mentioned”

In this case, actus reus is not in dispute. Exhibits A & A1 juxtaposed with Exhibit C and PW. 4’s testimony that a human being, inflicted stab wound with a sharp instrument affecting the victim’s biggest intestine and the biggest blood vessels, died just before reaching the theatre for repair surgery. The Appellant admitted his responsibility for this act resulting in the death of his victim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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At trial and in his defence, the Appellant had set up self-defence for the first time. The very fact of this defence is ordinarily, an admission of both the actus reus and the intention to kill his victim (the alleged assailant) for the purpose of saving his own life. Section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence”. The right of private defence includes (under Section 60 of the same Penal Code) the right to defend one’s own body against any unwarranted offence affecting human body.

Where a Defendant at the bar sets up the defence of self- defence, the issue is whether he had any reasonable apprehension of grievous hurt to, or death of, himself: IHIM v. THE STATE (1991) 2 NWLR (pt. 172) 622 at 638; AKPAN v. THE STATE (1992) 6 NWLR (pt. 248) 439 at 470. This reasonable apprehension of imminent danger of death or grievous hurt to the Defendant pleading self-defence, thus justifying the appropriate defence measures he took to protect himself, is one of facts to be proved by the defence.

There is no such proof to the satisfaction of the trial Court and the defence was justifiably dismissed. The trial Court found, and I agree “that the defence of self-defence was raised by the learned counsel to the accused person in the written address”, and that “the accused (person) did not mention anything about it”. The cute answer to this, in my solidarity with the learned trial Judge, is in the words of Rhodes-Vivour, JSC, in SEGUN OGUNSANYA v.

THE STATE (2011) 12 NWLR (pt. 1261) 401; (2011) LPELR-2349 (SC) pp 47-48 “No amount of brilliant address or playing to the gallery by counsel can make up for evidence to prove or defend a case in Court. The main purpose of an address is to assist the Court, and is never a substitute for compelling evidence.” See also NIGER CONSTRUCTION LTD v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 SC at 792; DONATUS NDU v. THE STATE (1990) LPELR-1975 (SC) at 22.

The defence at the trial Court failed to appreciate the significance of Sections 131(1), 132 and 135(3) of the Evidence Act, 2011 providing- 131. (1) whoever desires any Court to give judgment as to any legal right or reliability dependent on the existence of facts which he asserts shall prove that those facts exist.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

132. the burden of proof in a suit or proceeding lies on that person who would fail if evidence at all were given on either side. 135(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant. I agree with the two Courts below, in their concurrent findings of fact, that the Appellant herein did not prove the defence of self-defence he had latched on to as the last straw.

Having failed in his justification for killing his victim, by the plea of the defence of self-defence, it does not lie in the mouth of the Appellant to say that the prosecution did not prove his intention to kill his victim, the deceased. Exhibits A & A1 in the circumstance stand tall, straight and resolute in attesting to his guilt. A Defendant at the Bar pleading the defence of self-defence takes risks in alternative. If the plea succeeds; he would have provided the justification in law for his criminal act or conduct.

When it fails; the Defendant would be taken to have admitted the allegation of criminal offence brought against him.

​Finally, I agree with the lower Court in its stance that intention to kill can be inferred from the manner the Defendant deployed and applied the offensive weapon to his victim. At page 167 of the record, the lower Court, per Abiru, JCA, stated and I endorse the statement to wit - “Thus, in EJEKA v. STATE (2003) 7 NWLR (pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu V.

The State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant stabbed the Respondent in the stomach with a knife cutting through the deceased’s big intestines and the largest blood vessels in his body. This was an exhibition of a clear intention on the part of the Appellant to cause the death of the deceased.

The Appellant admitted this much in his confessional statement when he said “l know that a knife of any kind is capable of killing once it is used to stab somebody, especially when it is used on somebody’s stomach”

Substituting a shovel for knife, as the Appellant wanted the trial Court to believe, should even be more outrageous.

Since a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the alleged offence (Section 28 Evidence Act, 2011); the Defendant on his confession alone, once the confession unequivocally shows the direct and positive involvement of the Defendant in the alleged crime, can be convicted for the alleged offence confessed to: ODUA v. FRN (2002) 5 NWLR (pt. 761) 615; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 5; FABIYI v. THE STATE (2015) 6-7 SC (pt. 1) 83.

The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt. The appeal, lacking in substance, is hereby dismissed in its entirety. The decision appealed is hereby affirmed. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Ejembi Eko, JSC, in the judgment he just delivered and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Kaduna Division or Court below or lower Court, Coram: Uwani Musa Abba Aji,.Abdu Aboki, JJCA (as they then were) and Habbe A.O. Abiru, delivered on the 8th day of December, 2015. In that decision, the lower Court upheld the decision of the High Court of Katsina delivered on 20th December, 2012 per Ibrahim M. Bako J. where the trial Court, found the appellant guilty of culpable homicide punishable under Section 221 of the Penal Code of Katsina and thereby sentenced the Appellant to death.

The background facts are well set out in the lead judgment and I shall not repeat them except circumstances warrant a reference to any part thereof.

On the 28th day of January, 2021 date of hearing, learned counsel for the Appellant, Mark Mordi Esq. adopted the brief of argument filed on 4/4/2018 and deemed filed on the 9/1/2019 and a reply brief filed on 26/1/2021 and deemed filed on 28/1/2021. He formulated two issue for determination, viz:- I.

Having regards to the entire circumstances of this case, whether the lower Court was right when it upheld the decision of the trial Court and in holding that the trial Court rightly relied on the Appellant’s Confessional Statements in convicting the Appellant? (distilled from Grounds 1 and 2 of the Notice of Appeal). II. Whether the lower Court was right when it held that the Respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt? (distilled from Ground 2 and 3 of the Notice of Appeal).

Learned Director, Civil Litigation of the Ministry of Justice Katsina State, Abdurrahman Umaru for the Respondent, adopted the brief of argument filed on 10/3/2020 and deemed filed on 28/1/2021 and equally adopted the issues distilled by the appellant.

I see issue 2 as sufficient in the determination of the appeal.

ISSUE 2 Whether the lower Court was right when it held that the respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt.

Canvassing the stance of the Appellant, learned counsel contended that there was no doubt from the evidence that a person known as Jamilu Yahaya is dead but the question that arises is, if from the entire circumstances of the case, the prosecution had satisfactorily established by evidence that Appellant caused the death of the deceased and the answer is in the negative.

That the Appellant denied the confessional statement which the trial Court relied on, instead of properly evaluating the statement and this was fatal to the case of the prosecution. He cited Queen v Itule (1961) All NLR 462 etc.

It was further submitted for the Appellant that the evidence of PW.1 was hearsay and so of no effect. That there was no corroborative evidence with the alleged confessional statement as attended to by the Court below. He cited Iko v State (2001) 14. NWLR (pt. 732) 240-241 etc.

That the evidence of PW.1 and PW4 were not sufficient circumstantial evidence capable of corroborating the confessional statements in proving that indeed the Appellant caused the death of the deceased, Jamilu Yahaya.

​It was advanced in argument by the Appellant that the prosecution had not discharged the burden of proof beyond reasonable doubt as required by law and so the Appellant should be discharged. He referred to Abdullahi v State (2008) All FWLR (pt.432) 1047.

That the Appellant’s challenge of the confessional statement affected the probative value that should be attached to the knife and the medical report.

In response, learned counsel for the Respondent contended that the trial Court was right to have relied on the confessional statement of the Appellant in his conviction. He cited Olabode v State (2009) 5 MJSC (pt.ll) 83 at 104-105 etc.

That the confessional statement alone was sufficient without corroboration to secure the conviction even though the trial Court had seen corroboration from other pieces of evidence and the prosecution proved the ingredients of the offence beyond reasonable doubt.

The case of the Respondent was that the Appellant on the 11th August, 2006, stabbed one Jamilu Yahaya on his head and stomach with a knife resulting to the death which act is an offence punishable under Section 221 of the Penal Code. At the trial, the Respondent called four witnesses and tendered 4 exhibits while the Appellant testified as a sole witness for the defence and tendered no exhibits.

The trial Court convicted the accused/appellant and sentenced him to death and that was affirmed by the Court below on appeal and this, upon a reliance on the confessional statements – Exhibits A and A1 in which Appellant confessed to killing the deceased. This confessional statement was reaffirmed by the Appellant when Exhibit A was read in open Court and he informed the trial Court that he used a shovel and not a knife to stab the deceased.

At this point, it needs be stated that a confessional statement made by an accused person and properly admitted without objection as in this case is the best guide to the truth of the role played by him and upon which alone the Court can convict. See Olabode v State (2009) 5 MJSC (pt.11) 83 at 104-105.

The Appellant contends that his statement that he used a shovel and not a knife on the deceased is a retraction of his confessional statement and so, the two Courts were in error in convicting him based on the confessional statement. On this, it has to be said that, it is trite in law that a Court can convict on the confessional statement of an accused person regardless of the fact that the accused resiled from it or retracted from it or retracted all together at the trial.

In this instance, the retraction was not at the earliest opportunity such as when the statements were tendered but at the defence stage when the Appellant was testifying. Also, assuming even that the retraction was early, it does not affect the admissibility of the statement but puts the Court on notice on the weight to be attached and possibly the need for corroboration of the contents of the confession. See Akeem v State (2017) 18 NWLR (pt.1597) 340-341; FRN v lweka (2013) 3 NWLR (pt.1341) 285 at 336.

I see no reason to fault what the lower Court observed seen at page 103 of the record, when that Court stated thus: “It is a settled principle in criminal litigation that, where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true”. The Court below relied on the cases of Osung v State (2012) 18 NWLR (pt.1332) 256; Ajibade v State (2013) 6 N WLR (pt. 1349) 25 at 44; Stephen v State (2013) 8 NWLR (pt.1355) 153 at 173.

Indeed, it is at the stage of tendering that objection to admissibility of accused’s statement can be made and where it is made thereafter as in the case at hand, it is treated as an afterthought. See Ehot v State (1993) 5 SCNJ 65 at 91. The Appellant did not retract the making of his confessional statement at the earliest opportunity of tendering it, but only raised in the course of the trial that he used a shovel and not a knife to attack the deceased. The later statement of the Appellant is not a retraction but an affirmation of his guilt of causing the death of the deceased.

His statement is admission of guilt which carries no less weight than a written statement. See the Supreme Court case of F.R.N. VS IWEKA (2013) 3 NWLR PT. 1341, P. 25 AT 336 PARAS C-D.

Where the accused’s later statement is a denial of guilt, the law is that where an accused Defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of this inconsistency is proffered.

This is as rightly observed by the lower Court at page 104 of the printed records relying on the case of Gabriel v State (1989) 5 NWLR (pt. 122) 457; Ogoala v State (1991)2 NWLR (pt. 175) 509; Egboghonome v State (1993) 7 NWLR (pt. 306) 383; Oladotun v State (2010) 15 NWLR (pt.1217) 490; FRN v lweka (2013) 3 NWLR (pt. 1342) 285; Osuagwu v State (2013) 5 NWLR (pt.1347) 360

It is the contention of the Appellant in page 12 to 19 of his brief that exhibits A and A1 are not corroborated and that the evidence of pw1 and pw4 which the lower Court relied upon as corroborative evidence, are not sufficient in corroborating the confessional statement to the effect that the Appellant caused the death of the deceased. On this, it has to be pointed out that with or without corroboration, the Court was at liberty to convict the Appellant on his confessional statement even if it is retracted.

See F.R.N VS IWEKA (SUPRA) at PG 336 PARAS A-C. ​Therefore, a confession alone is sufficient without corroboration as there is no evidence stronger than the person’s own admission or confession. See IKPO VS STATE (2016) 10 NWLR PT 1521 SC 501 AT 530 G-H. Even where there is desirability for corroboration, an evidence, no matter how slight of circumstances which makes it possible that the confession is true, is sufficient. See SULE VS STATE (2014) 14 NWLR PT 1420 SC 65 AT 88 PARAS F-G, PG 90-91 PARAS H-A.

The law is trite as established by the Supreme Court that corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See OGUNBAYO VS STATE (2007) 8 NWLR PT 1035, PG SC 157 AT 178 PAR E, 179 PARAS A-B.

The lower Court rightly acted and relied on exhibit A and A1 alongside other corroborative evidences to affirm the conviction of the Appellant by the trial Court.

​The Court below was correct in going along with what the trial Court did in the reliance placed on the confessional statement in the conviction of the Appellant.

The Appellant contends under this issue that the Respondent did not prove the second ingredient of Culpable Homicide, that the Appellant caused the death of one “JAMILU YAHAYA” as none of the prosecution’s witnesses actually saw the Appellant kill the deceased, there was no eyewitness and none of the labourers that actually witnessed the incident and told PW 1 were called to testify.

I am aware of the fact and position of the law that the onus of proving an offence beyond reasonable doubt is always on the prosecution and never shifts, this onus was successfully discharged by the Respondent at the trial Court.

Although, none of the eyewitnesses that witnessed the killing of the deceased by the Appellant testified, the evidence adduced by the Respondent before the trial Court was overwhelming, convincing and direct to the guilt of the Appellant.

It is trite that an offence can be proved by either or all of the following ways: (a) Evidence by eyewitness; or (b) The confession of the accused; or (c) Circumstantial evidence See IGRI VS STATE (2012) 16 NWLR PT. 1327 PG 522 AT 541 PARAS B-C

​The fact that the Appellant caused the death of the deceased and other ingredients of the offence were as rightly observed by the two lower Courts, proved beyond reasonable doubt through the confessional statement of the Appellant admitted as exhibit A and A1 and other independent corroborative evidences, particularly the evidence of PW 1 and PW4 which circumstantially linked the Appellant with the death of the deceased.

In a long line of judicial authorities of the Apex Court, proof beyond reasonable doubt means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. I shall cite just one, Oseni v The State (2012)5 NWLR (pt.1293)SC 351 at 388.

The Appellant had confessed to the commission of the offence in exhibit A and A1 and there is no evidence stronger than a person’s own admission or confession. See Ikpo v The State (2016) 10 NWLR (pt.1521) 501 at 530.

The burden on the prosecution to prove the offence against the Appellant beyond reasonable doubt does not translate to proof beyond the shadow of all doubt or proof to the hilt. Clearly, the prosecution has discharged the burden of proof beyond reasonable doubt as expected by the law. See Bolanle v State (2009) 15 NWLR (pt. 1172)1 at 10-11; Jua v State (2010) 9 NWLR (pt.1184) 243.

Clearly, there is no basis for this Court to interfere with the well grounded findings of the two Courts below and the ultimate conclusion reached. This appeal has no merit and I dismiss it.

I abide by the consequential orders made. Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ejembi Eko, JSC and I entirely agree with his reasoning and the conclusion reached therein that this appeal has no merit and deserves to be dismissed. Though, I have no hesitation equally dismissing the appeal, I shall proffer a few comments of my own in support of the judgment.

I am of the view that the argument of learned Counsel for the Appellant in the main is, whether the Court below was right to affirm the conviction and sentence of the Appellant based on his retracted confessional statement. My simple and direct response to the poser is in the affirmative.

​It is now settled that criminal guilt of an accused person could be established either by confessional statement of the accused person, circumstantial evidence or evidence of an eyewitness otherwise known as direct evidence. See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Edamine v. The State (1996) 3 NWLR (Pt. 438) 350.

When it comes to admissibility and reliance on confessional statement to ground conviction, the Court must be satisfied that the statement was freely and voluntarily made. A retraction of confessional statement does not in any way affect its admissibility as long as there are other factors outside the confession pointing to its truthfulness. The Court is only obligated to consider the weight to be attached to the statement in view of the guidelines for assessing its truthfulness. See COP v. Alozie (2017) 7 NWLR (Pt. 1565) 368; Osetola v. State (2012) 17 NWLR (Pt. 1327) 251; Musa v.

State (2017) 5 NWLR (Pt. 1557) 43.

​In the instant case, the Appellant never retracted or resiled from his confessional statement as erroneously argued by his counsel. He only made a correction on the statement with respect to the exact weapon he used in killing the deceased. He substituted shovel for knife. He pleaded self-defence but never retracted the statement. Needless to say that the statement was admitted without objection, clearing the path for the Court to only consider his plea of self-defence.

The Appellant’s plea of self-defence having failed, the learned trial Judge was safe to rely on his confessional statement to convict him. It is for this reason and fuller reasons advanced in the lead judgment that I also dismiss the appeal. I abide by the orders made in the lead judgment. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Ejembi Eko, JSC, has accorded me the privilege of reading, before now, the draft of the judgment just delivered. I concur with reasoning and conclusion reached therein, to the conclusive effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed by this Court. It is indeed my honour and privilege, to adopt the reasoning and conclusion in question as mine.

​In the instant case, Exhibit A1 (the Appellant’s confessional statement) is to the effect, inter alia, that while at the scene of the crime (Government Girls’ Secondary School, Funtua, Katsina State), the Appellant was abused by the deceased person. Allegedly, the deceased person also hit the Appellant on his back and hand with a shovel.

According to the Appellant, it was: “At that point I brought out a knife from my waist and stabbed him twice on his head. The third one I stabbed him on the stomach and he fell down. From there I took to my heels to escape but the remaining labourers ran after me stoning me and got me arrested.”

It was the apt findings of the trial Court (page 57 of the printed record): “That was why when PW 1 reached the scene after a report had been made to the police station, he met the other labourers holding the accused person while Jamilu Yahaya (the deceased) was on the ground in a pool of blood. “This statement (Exhibits A & A1) is clearly consistent with other facts that have been established in the testimonies of the prosecution witnesses. ” This also clearly prove that the accused person is responsible for the death of Jamilu Yahaya.

That he stabbed him in the stomach intentionally and with the knowledge that death of Jamilu Yahaya was the probable and not only likely consequence of the act of stabbing.”

On the part thereof, the Court below, in a not so dissimilar passion, made some far-reaching findings to the following effect: The records of appeal shows that the lower Court made a finding in the judgment that the confessional statement of the Appellant was freely and voluntarily made was direct, positive and unequivocal.

This finding was not challenged on this appeal. … This Court, in the circumstances, fault the finding of the lower Court that the testimonies of the first and fourth prosecution witnesses constituted corroborative evidence proving the veracity of the contents of the confessional statement. The law is that a conviction can be sustained solely on such a confessional statement, even where it is retracted by the accused/defendant - Solola Vs. State (2005) 11 NWLR (Pt. 937) 460. The Respondent thus led credible evidence before the lower Court to sustain the charge against the Appellant. ….

This appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Katsina State in charge No. KHT/FT/7C/2007 delivered by Honourable Justice Ibrahim M. Bako on the 20th of December, 2012 and the sentenced (sic) passed on the Appellant therein are hereby affirmed. These shall be the orders of this Court.

Most undoubtedly, the findings of the two Courts below, tantamount to what is jurisprudentially known as concurrent findings. Yet, it has been the consistent practice of this Court not to disturb concurrent findings of fact of the two Courts below, provided they are neither assailable nor perverse. See OBI I. EZEWANI VS. OBI ONWORDI (1986) 4 NWLR (Pt. 33) 27; NBC LTD VS. NGONADI (1985) 5 SC 317 @ 319; (1985) 1 NWLR (Pt. 4) 739; WOLUCHEM VS. GUDI (1981) 5 SC 291.

In essence, the doctrine is well settled, that where there is sufficient evidence to back up concurrent findings of facts by both lower Courts, such unassailable findings ought not to be disturbed. Of course, the exception to the general rule is where it is so apparent there is a substantial error on the record, thus rendering the entirety of the findings perverse, thereby occasioning some miscarriage of justice or material breach of some fundamental principle of law or procedure.

See OGOALA VS THE STATE (1991) 2 NWLR (Pt. 175) 509; (1991) 3 SCNJ 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 6-9 SC 153.

As aptly postulated by my learned brother, Eko, JSC @ page 18 (lines 10-14) of the leading judgment: ‘The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt.”

That being the case, therefore, the instant appeal is grossly lacking in merits, and liable to be dismissed.

The appeal is accordingly hereby dismissed by me in the entirety thereof.

ADAMU JAURO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in agreement with the decision and the conclusion contained therein.

​The issues raised in the instant appeal have been sufficiently dealt with by my learned brother in the lead judgment just delivered. I however wish to add that every counsel is an officer in the temple of justice. Being desperate to win a case at all cost is a preposterous act that should not be exhibited by a counsel in the temple of justice. A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V.

OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC).

Touching on the merit of the appeal, I wish to add that after the Appellant stated in his confessional statement that that he killed the deceased with a knife, what difference does it make to his case to state in his trial that he indeed used a shovel on the deceased? The ingredients that the deceased died and that it was the act of the Appellant that caused his death have been admitted by the Appellant. On the last ingredient for the offence of culpable homicide punishable with death, which is that the act of the Appellant was intentional.

The Appellant’s defence of self-defence could not have availed him because, such defence was only brought up for the first time during the address stage. No evidence was led by the Appellant to substantiate the defence and the trial Court was right to have discountenanced same and proceeded to convict the Appellant for the offence charged.

​On the whole, the Appellant in this appeal failed to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court. I too, hold that the appeal lacks merit. Same is equally dismissed.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below, Coram: Adewale O. Abiru, Oladotun A. Adefope-Okojie and Amina Audi Wambai JJCA on the 26th day of February, 2016 dismissing the Appellant’s appeal and affirming the conviction and sentence of the Appellant and his co-accused person per G.I. Kurada J.

FACTS BRIEFLY STATED The appellant as the 1st accused was arraigned alongside two other accused persons before the trial Court on the 4th day of November, 2008, charged with criminal conspiracy and culpable homicide punishable with Sections 97 and 221 of the Penal Code Law respectively, to which he pleaded not guilty.

The Respondent in its efforts to prove its case against the Appellant and the other accused persons, called five (5) witnesses who testified as PW1 to PW5, and it tendered in evidence several documents which were admitted in evidence, amongst which are the extra-judicial confessional statements of the Appellant which were admitted and marked as Exhibits 3, 3A and 5. It is worthy to note, that the confessional statements of the Appellant Exhibit 3, 3A and 5 were admitted in evidence through PW4 and PW5 without objection from the Appellant or his counsel.

The Appellant testified as DW1 in his defence and called no other witness. After the close of the respective parties’ cases, their counsel addressed the Court, and in a considered judgment, the learned trial Court found and held, that the Respondent had proved beyond reasonable doubt that the Appellant was guilty of the said offences of criminal conspiracy and culpable homicide not punishable with death.

It therefore convicted the Appellant of the said offences of criminal conspiracy and culpable homicide not punishable with death and sentenced him to one (1) year imprisonment on Count 1 dealing with criminal conspiracy and five (5) years for the offences of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the same to the Court below via his Notice of Appeal dated and filed on the 17th day of May, 2011, containing ten (10) grounds of appeal.

​In accordance with the rules and practices of the Court below, the parties filed and exchanged their respective Briefs of Argument which they duly adopted at the hearing of the appeal on 26th January 2016.

The Court below dismissed the appeal and further dissatisfied Appellant has come before the Supreme Court upon a Notice of Appeal containing five (5) grounds.

On the 3/2/2022 date of hearing, learned counsel for the Appellant Paulyn O. Abhulimen Esq. adopted the further amended Appellant’s brief of argument filed on 16/6/2021 and deemed filed on 2/12/2021. In the brief, learned counsel raised two issues for determination, which are as follows:- i.

Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons?’ (Grounds 1, 2, and 5) ii.

Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law. (Grounds 3 & 4).

Learned counsel for the Respondent, Biola Oyebanji Esq adopted the amended Respondent’s brief of argument, filed on 25/11/2021 and deemed filed on 3/2/2022. In the brief was formulated a single issue, thus: Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with (Distilled from all grounds of the Notice of Appeal)

The sole issue of the Respondent seems to me to cover the field and I shall make use of it in the determination of the appeal.

SOLE ISSUE Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicted him of a lesser offence than the one he was actually charged with. Advancing arguments for the Appellant, learned counsel stated that the two Courts below failed to adequately consider whether the standard of proof for culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law of Kaduna State was attained before convicting the Appellant.

That there was no intention to kill the deceased and the conviction based on speculation, should fail. He cited Archibong v ITA (2004) 2 NWLR (pt.858) 590 at 597 etc.

He submitted further that from the available facts of this case, the scuffle leading to the death of the deceased was instigated by the deceased and the force applied by the Appellant on the deceased was not disproportionate to what the Appellant and his co-accused claimed the deceased did to them. That the defence of self defence or provocation availed the Appellant. He cited Uwaekweghinya v The State (2005) 9 NWLR (pt.930) 227 at 285.

For the Appellant, it was contended that the learned trial Judge raised a point suo motu that the evidence of the prosecution only revealed a case of a rash act by the 1st and 2nd accused and he did not give the Appellant the opportunity to be heard on that issue. The implication is that there was a lack of fair hearing. He cited Dickson Moses v The State (2006) All FWLR (pt.322) 143 at 1477.

It was submitted for the Appellant that before he could be convicted of a lesser offence as was the case in this instance, the Appellant ought to have been called to address the Court in that regard. She cited Okey Uzoho & 4 Ors v National Council on Privatisation & Anor (2007) All FWLR (pt.394) 370 at 387.

That the Court below failed to evaluate the facts and evidence as challenged by the Appellant and so fell into the same error as the trial Court. It was cited Action Congress of Nigeria v Lamido (2012) 8 NWLR (pt. 1303) 560; Dawodu & Ors v Ologundudu & 5 Ors (1986) 4 NWLR (pt.33)104 at 115-116.

Learned counsel for the Respondent submitted that the trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients of the offence of conspiracy had been proved and it so found that by the confessional statement of the Appellant and his evidence the Respondent had proved the count of criminal conspiracy.

That the Appellant had not challenged the findings of the trial Court at the Court below and so those findings stood.

​That the defence of self defence or provocation did not enure in favour of the Appellant and that the Respondent proved the offences charged beyond reasonable doubt.

RESOLUTION: As a starter, I need to restate the often quoted principle that in all criminal trials, the onus of proving the guilt of any accused person over the commission of a crime lies on the prosecution and that duty gets to the prosecution establishing its case beyond reasonable doubt which is not akin to proof beyond all shadow of doubt. This requirement is achieved by ensuring that all necessary and vital essential elements of the charge are proved by evidence. See Okoro JSC in The State v James Gwangwan (2015) 13 NWLR (pt.1477) 600 at 621; Yongo v.

Commissioner of Police (192) LPELR-3528 (SC), (1992) 4 SCNJ 113; (1992) 8 NWLR (Pt.257) 36; Ogundiyan v. State (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519; Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516; Babuga v State (1996) LPELR-701 (SC); (1996) 7 NWLR (Pt.460) 279. See also the case of MOHAMMED IBRAHIM vs THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192.

​The Appellant in the instant appeal was arraigned before the trial Court on charges of criminal conspiracy and culpable homicide punishable with death, contrary to Sections 97 and 221 of the Penal Code Law.

The trial Court after taking evidence from the prosecution’s witnesses and the Appellant who testified in his own defence and the other accused persons, found the Appellant guilty of criminal conspiracy and the lesser offence of culpable homicide not punishable with death, pursuant to the powers granted to the Court under Section 218(2) of the Criminal Procedure Code Law, having held that the prosecution proved beyond reasonable doubt that the Appellant committed the said offences.

The trial Court in its judgment held pertaining to culpable homicide punishable with death, with which the Appellant was charged in count 2 thus: “The Accused simply acted rashly. I hold that the evidence of the prosecution has only revealed a case of a rash act by the 1st and 2nd accused.

And by Section 218(2) of the Criminal Procedure Code; (2) Where a person is charged with the offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it ” I accordingly find the 1st and 2nd Accused persons guilty of causing the death of Mallam Makama Adamu by a rash act and I hereby convict each of them for culpable homicide not punishable with death under Section 224 of the Penal Code.”

The trial Court stated further as follows: “By Exhibit 3, 3A and 4 and 4A, the 1st and 2nd Accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left their house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased.

However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused’s at that point agreed to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd Accused to beat the deceased and which act resulted in the death of the deceased.

I find the 1st and 2nd Accused guilty of Count one of the charge and I accordingly convict each of them of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.”

The guides as provided in a large number of decided cases that in all criminal trials, the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods or ways:- 1. By eye witness evidence. 2. By a free and voluntary confessional statement of the accused person; and 3. By circumstantial evidence. Reference is made to the following cases: 1. SUNDAY UDOR vs. STATE (2014) 12 NWLR (Pt.1422) 548 at 561 para B 2. AKEEM AGBOOLA vs THE STATE (2013) 11 NWLR (Pti366) 619 at 648 paras A-C 3.

EMEKA vs STATE (2002) 14 NWLR (Pt.734) 666 at 683 pars G-H.

By virtue of the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and that of Section 135 of the Evidence Act, the onus of proving the commission of the offences alleged against the Appellant, lies on the prosecution in this case represented by the Respondent, more so, the Appellant having pleaded not guilty to the two counts against him.

It therefore clearly lies at the door of the Respondent to prove all the ingredients of the offences with which the Appellant was charged in respect to the counts of criminal conspiracy and culpable homicide punishable with death.

In the quest to prove the offences charged, the Respondent relied on the eye witness evidence of PW1, John Aruwa whose evidence and that of DW3 Amuenza Likita Micheal whose evidence in addition to the confessional statements of the Appellant which were admitted in evidence without objection and marked as Exhibits 3 and 3A.

​As stated earlier, the extra-judicial confessional statements of the Appellant were admitted in evidence without objection and since the said statements are confessional in nature, they are relevant and having been voluntarily made, they are admissible and having been so admitted, the Court was entitled to accord them full weight and consideration in the determination of whether the Appellant is guilty of the offences he was charged with.

The trial Court was therefore perfectly in order when it found the Appellant guilty of the lesser offence of culpable homicide not punishable with death pursuant to the provisions of Section 218(2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients for the offence of criminal conspiracy had been proved and it soundly found, that by the confessional statements of the Appellant and his evidence in Court in his defence, the Respondent had proven the count of criminal conspiracy.

The Court below in its judgment noted that the trial Court in its judgment dealt first with the substantive offence of which the Appellant was convicted which is culpable homicide not punishable with death, before going back to see if the offence of criminal conspiracy, was proved beyond reasonable doubt.

The Court below in making its decision put down the ingredients of the offence of culpable homicide not punishable with death as follows:- i. That the deceased died; ii. That the death of the deceased resulted from the voluntary acts of the defendant; iii. That the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent; and iv. That in the circumstances of the case, the act of the defendant was not such to amount to culpable homicide punishable with death.

The lower Court stated that though the beating was an unlawful and rash act but could not amount to culpable homicide punishable with death. The Court below held that the Appellant did not challenge these findings of fact and therefore the law presumes him as having accepted those findings, and are thus bound by them. The Appellant still did not challenge the same firm holding in this appeal. As such by the failure of non-challenge to those findings of the Court below, and by several decisions of this Court, the Appellant is bound by those findings.

I refer to the case of ALHAJI TSOHO AMALE VS SOKOTO LOCAL GOVT. & ORS (2012) 5 NWLR (Pt.1291) 181 at 197-198.

The submissions of the Appellant on rash action hold no water in that, inferable from all the submissions is that there was no preconceived position taken by the Appellant to kill, but however death still occurred by the beating of the deceased. This act of inflicting blows on the deceased by the two accused was found by the concurrent judgments to be rash acts. The challenge by the appellant that the decision was speculative was informed by the fact that the hospital was negligent by not administering proper medical care.

This contention is more speculative than what the Appellant alludes to the Court in respect to the fact that no head scanning was undertaken to determine the justification of the finding by the Courts that the death was due to head injury.

For a fact, both at trial and appeal to the lower Court, the Appellant did not destroy the above finding nor did he, as he had the right to, call another contradictory testimony of another doctor to establish that the above finding was unproved, unjustified and medically impossible. All the suppositions of the deceased having a speculative high blood pressure, hemorrhagic disease were not established by the Appellant. In this instance, the facts before the Court being well established as to the cause of death resulting from running blows on the head of the deceased.

That made the production of the medical report within the sphere of abundance of caution but not necessary.

The conclusion reached that the cause of death was as a result of bleeding from the orifice was not dislodged and remained sacrosanct. The onus shifted back to the Appellant to produce alternative medical evidence to contradict the documented one, in default of which the concurrent findings had not been contradicted to establish any doubt from which the Appellant could benefit. Medical report is not a sine qua non to establish the guilt of the Appellant when there was other evidence.

Suffice to state that non-production of medical report or the absence of the medical personnel is not mandatory, in this appeal, when the cause of death is already known. It is not the law that a hard object must be proved to have been used to inflict the grievous bodily harm as contended by the appellant.

​The Courts have severally held that, in order to prove a charge of culpable homicide not punishable with death or manslaughter, there is no need to prove that there was an intention to cause death or to kill the deceased person, for indeed, it is the very absence of the intention to kill or cause death, that reduced the offence from culpable homicide punishable with death to manslaughter.

Reference was made to the case of STATE vs BOKA (1982) 1 NCR 85 at page 93 where Karibi Whyte, JCA (as he then was) held thus: “It would seem to me on the concepts of “rash” or “negligent” act used in Section 222(7) that the offence is committed where there is no intention to cause death and no knowledge that the act done would, in all probability, cause death.

The act complained of must be done without any criminal intent, the relevant considerations being the “rashness” or “negligence” of the act, These, or one of them alone, being the essential ingredients of liability, it would seem sufficient if the act complained of is the direct cause of death.” I am persuaded to rely on the case of EMMANUEL AYO vs. THE STATE (2015) 16 NWLR (Pt.1486) 531 at 546-547 the Court of Appeal per Abiriyi, JCA held thus:- “The death must be caused by the unlawful act of the accused person.

It must be proved not merely that act of the accused person could have caused the death of the deceased but that it did. See Apugo v. State (2006) 15 NWLR (pt.1002) 227, and R v. Oledinma (1940) 2 WACA 202.” See also the cases of: 1. CHARLES EGBIRIKA vs THE STATE (2014) 4 NWLR (Pt.1398) 558 at pages 578, 579 paras G-A and 580 para A. 2. SHINA OKETAOLEGUN vs THE STATE (2015) 13 NWLR (Pt.1477) 538 at page 560 paras B-F.

The Court below at page 188 of the records in its judgment after reviewing the contentions of the Appellant in his Brief before the Court, held thus at pages 188-189: “Thus, to sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, and reckless without due regard or consideration for its consequences and/or that it was negligent – STATE VS BELLO AYINDE (1976-1977) NNLR 38, BABALOLA VS STATE AYINDE (1978-1979) NNLR 31, ADAMU VS STATE (2014) LPELR – CA/K/373/C/2013.

The respondent led cogent evidence to prove, in the instant case, that the action of the Appellant in beating the deceased in such a manner as to cause death was rash or non-consideration for its consequences.”

​The Appellant has contended, that the Court below was wrong in affirming the judgment of the trial Court when it failed to consider the defence that enured to the Appellant, which defence was that of self defence before the Court concluded on non-availability of same to the Appellant, the trial Court having held that the Appellant and his co-accused had no intention to kill the deceased when they beat him, as such should not have convicted him for culpable homicide not punishable with death.

The Appellant was wrong in that posture as the trial Court in its judgment considered in great detail the defence of self defence and held that, the same was unavailable to the Appellant. The Court below on its part, as an appellate Court, considered the complaint of the Appellant raised in his appeal, nowhere in the Appellant’s Brief of Argument was an issue raised challenging a failure by the trial Court to consider the defence of self defence raised at the trial.

The Appellant having failed to challenge the finding by the trial Court that he was not acting in self defence when they beat up the deceased and prevented him from entering his house, the Appellant must be taken as having accepted that finding, and the Court below lacked the jurisdiction to look into the issue.

With reference to the offence of conspiracy to commit culpable homicide not punishable with death for which the Appellant was also convicted and sentenced and the Court of Appeal affirmed. It has to be stated albeit for the umpteenth time that the Courts have in a long time of judicial authorities held that the offence of conspiracy in the absence of an express agreement between the parties can be inferred from the criminal acts of the parties, including the act of complicity and the attainment of a common end or goal.

I shall cite as guide some of the dicta of my learned brother hereunder:- In the case of IDOWU OKANLAWON vs THE STATE (2015) 17 NWLR (Pt.1489) 445 at 477 this Honourable Court per Ariwoola JSC thus: “As shown earlier the appellant was charged along with others with the offence of conspiracy and armed robbery. It is already held that the proper approach to an indictment which contains offence of conspiracy as a charge and a substantive charge is to deal first with the main charge and then the charge for conspiracy.

Conspiracy is generally an agreement between two or more persons to do an unlawful act in an unlawful manner or lawful act in an unlawful manner, Indeed, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence in itself, independent of the actual offence said to have been conspired to commit. See BALOGUN V. ATTORNEY GENERAL, OGUN STATE (2002) 2 SC (PT.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196; (2002) 6 NWLR (PT.763) 52; OSETOLA & ANOR v.

STATE (2012) 12 SCM (PT.2) 347.” Again in the case of KAYODE BABARINDE & ORS vs THE STATE (2014) 3 NWLR (Pt.1395) 568 at page 594 this Honourable Court per Kekere-Ekun, JSC had the following to say on what is conspiracy and how it can be proved: She stated as follows:- “Section 96 of the Penal Code, which defines Criminal Conspiracy’ has been reproduced earlier in this judgment. It is trite that conspiracy is seldom proved by direct evidence. In OBIAKOR V.

THE STATE (2002) 6 SC (Pt.11) 33 at 39-40; (2002) 10 NWLR (PT.776) 612 at 628, PARA G-H this Court held, per Kalgo, JSC “Conspiracy as an offence is the agreement of two or more persons to do or cause to be done an illegal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.”

On the nature of proof required to establish conspiracy, Achike, JSC (as he then was) stated thus in ODUNEYE v. THE STATE (2001) 1 SC (PT.1) 1 @ 6-7, (2001) 2 NWLR (PT.697) 311 @ 324.

“A conviction for conspiracy is not without its inherent difficulties… a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred… Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused” (Italics mine)

In the case at hand the Court below had held as follows: “By Exhibits 3, 34 and 4 and 4A and the 1st and 2nd accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left the house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased.

However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused agreed at that point to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd accused to beat the deceased and which act resulted in the death of the deceased… ”

The Court below in considering the submissions of the Appellant in his Brief of Argument before that Court under Issue 1, held at page 190 of the records as follows: “There was unchallenged evidence before the lower Court that the Appellant jointly beat the deceased and that even when the deceased tried to leave them and enter his house, they held and dragged him back and beat him until he collapsed and that it was the beating that caused the death of the deceased.

The appellants acted in obvious concert and inference of conspiracy drawn by the lower Court from these unchallenged facts and finding made hereon were thus solid and cannot be tampered with by this Court. This Court thus finds that the lower Court was correct when it found that the Respondent led sufficient cogent and credible evidence before it to prove the offences of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law beyond reasonable doubt to warrant the conviction and sentence of the appellants for those offences…”

The Appellant had not proffered any challenge whatsoever to the above finding by which failure the findings of the lower Court in affirming the trial Court’s finding stays till eternity and incapable of being dislodged.

The learned counsel for the Appellant had gone to great lengths in disparaging the findings of the Court below which that Court referred to as “rash acts” of the Appellant and co-accused. The line of thought which Appellant’s counsel wanted the Court to tow is to exculpate the Appellant since the acts leading to the death of the deceased were rash acts. I say to that, not so fast, as rash acts or reckless acts cannot be easily so dismissed as leading nowhere. This is because rash acts or reckless acts or reckless conduct are much more than mere negligence.

Black’s Law Dictionary definition in relation thereto as “intention cannot exist without foresight but that foresight can exist without intention.” See Nwabueze v People of Lagos State (2018) 11 NWLR (pt. 1630) 201 per Eko JSC. In expatiation, I would say that a man may foresee the possible or probable consequence of his conduct and yet not desire them to occur, NONETHELESS, if he persists on his course or knowingly runs the risk of bringing about the unwished.

This therefore undermined the essence of the conduct of the Appellant in that a man is responsible for the outcome or consequence of his act.

​The cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death must be clear as to connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirements of the law of onus of proof, is the evidence that fixes the accused to the crime with sufficient cogency which excluded that someone else had committed the crime.

Apart from summation, conjecture and importation of suppositions, the Appellant did not contradict the testimonies that the deceased died as a result of flurries of blows inflicted on him by the two accused persons. This finding cannot be ignored when there was none proffered by the Appellant for this Court to set aside the solemn finding of the learned trial Judge as upheld by the lower Court. See the case of Nwaeze v State 96 NWLR Pt.428 pg 1 at 11.

On the issue of medical report, I would say without hesitation that it is not in all cases that medical evidence is sacrosanct in proving the cause of death. Medical evidence is dispensed with when the cause of death is known and occurs immediately.

My lords, the prosecution notwithstanding went the extra mile to produce a Medical Certificate which was not objected to. ​Medical evidence is not imperative where the victim died in circumstances in which there was abundant evidence of the manner of death which occurred immediately or so soon thereafter upon the occurrence of the act, is to enable the contemporaneity of the causation and effect.

Unless and until there is a proved and established fact of intervening cause in this appeal, the Appellant cannot undermine the effect of punches by two accused persons which uppercut may be more lethal similarly like any weapon.

The evidence before the Court which is not contradicted and upheld by the Court was that… “he beat me and I beat him, he held me and I held him and he fell” convincingly, since after the fall, there was no intervening cause until the victim gave up the ghost at 4pm. The arguments of the Appellant pertaining to any intervening cause must be discountenanced.

It is surplusage on the part of the prosecution to have tendered the medical report in that the law excuses the production of medical or export evidence where death was instantly caused by the act of the attacker.

The Appellant’s submissions on the defence of provocation and self defence go to no issue.

​By Section 218 (2) of the Criminal Procedure Code, it allows a Court of trial to convict an accused, rather than for the greater offence or the actual charge the accused is formally charged with, by finding the accused guilty of a lesser offence using a combination of some of the particulars of the offence charged. The operative word here is “lesser” not “another” charge.

As wrongly contested by the Appellant, that he was not in the know of the offence he was charged with, nor given the opportunity to address on it, nor generally that his fundamental right to fair hearing had been breached, had been taken care of, in that before anyone can be found guilty of any such lesser offence, he must be seen to have had notice of the lesser offence charged, by virtue of the notice of the greater offence he was charged with.

This came by, in that the evidence produced at the hearing in support of the greater offence is short of sustaining the charge BUT established beyond doubt, the lesser offence. See the cases of; OKOBI V STATE 84 7 SC 47 NWACHUKWU V STATE 86 2 NWLR PT. 25 pg 765 at 782 OYEDIRAN V REPUBLIC 67 NMLR 122 ​Therefore, for the conviction of the lesser offence to be valid, the accused must have sufficient notice of the lesser offence as in Section 218 CPC.

In the absence of sufficient notice of any lesser offence or if the lesser offence was not a constituent element of the larger offence, a conviction on the lesser offence just because the substituted offence conveys lesser punishment, shall not be sustained. See the case of ONUKWUBE V STATE 2021 NWLR PT.1767 pg 558 at 577/578. However, for Section 218 (2) to be properly invoked as done in this appeal, the following must be observed, namely; (i) The indictment in respect of which the accused is subsequently found guilty of; i.e the lesser offence must; a.

Contain words to include both offence such that the evidence led and facts found, though insufficient for conviction of grave or aggravated offence. b. Must support the conviction of lesser offence. It is trite to note here that the law does not insist nor is it necessary to charge the accused formally with the lesser offence with which he is convicted in that the great/aggravated offence include by necessary implication the lesser offence with which he was charged and convicted.

I rely on the case of Amadi v State (2019) NWLR (pt.1677) 366 at 378. ​A lesser offence has been described as a combination of some of the several particulars making up the offence with which the accused was charged with, as such the particulars constituting the lesser offence are carved out of the offence charged. The lesser offence with which the accused is convicted arises out of the facts and evidence led in support of the aggravated charge.

This therefore has been established over the years that when an accused had notice of the aggravated charge, he is deemed also to have notice of the lesser charge for which he could be convicted, though he was not formally charged with same. I refer to the case of: (i) RABIU V STATE 2010 10 NWLR PT.1201 at 148/149; (ii) NWACHUKWU V STATE 862 NWLR PT 25 pg.765 at 778/782.

The parties of the main/aggravated offence of culpable Homicide and being found guilty of rash and negligent act are the same in that Section 222 (7) provides thus: “Section 222 Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act” ​Again to be said is that the same evidence or facts proffered in support of the main charge are the same, except that the evidence was insufficient to ground conviction of the main charge, but supportive and adequate to sustain the lesser charge.

The Court is mostly concerned with the similarities of the supportive evidence of both main and lesser charge. Where there are no similarities between the elements or ingredients/circumstances of the commission of the offence, the Court would not be right in convicting for a lesser offence. See the case of ADOBA V STATE 2018 NWLR PT 1633 pg 236 at 254/255. Thankfully, this is not the contention of the Appellant.

In order to convict for a lesser offence there must have been a trial and the elements/particular relied upon must have been proved, before there could be any sustainable justification for the conviction for a lesser offence. See (i) R V ADOKWU 20 NLR 103 (ii) TORBAMBO V POLICE 1956 NRNLR 94 (iii) AGUMAGU V Q.63 1 SCNLR 203 Coming home to Section 218 (1) of the CPC, it envisaged and anticipated against the position taken by the Appellant when it was argued that the Appellant was not formally charged with the lesser offence nor was the main/aggravated charge amended to accommodate the lesser.

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“Though he was not charged with” See the case of KADA V STATE 91 8 NWLR PT 208 pg 134 at 157 EZEJA V STATE 2005 6 NWLR PT 921 pg 269 at 278. It is easy to hold that the cause of death was well laid out, informed and there were direct account of the act that led to the death of the victim as was done in this matter. See also BAKURI V STATE 65 NMLR 163, ONYIA V STATE 2006 11 NWLR PT 991 pg 267.

The Appellant raised tacitly the defences of self defence and provocation which the Courts found not extendable to him.

In the case of OKONJI V STATE 87 1 NWLR PT 52 pg 659 at 668, the Court held that before the Appellant could enjoy the benefit, he must have reasonable belief that his life was in danger and that the quality of the force used on the deceased must be the same.

In the present appeal, there was no threat to the life of the Appellant nor that the quality of the force used in repelling was the same in that the Appellant and his co-accused beat the deceased blue and black. By this, the defence does not enure to the Appellant’s advantage in that the attack offered never raised reasonable apprehension of death or grievous hurt or death to himself.

From the totality of what is before the Court which learned counsel for the respondent has properly brought to light, I have no difficulty in going along the paths taken by the two Courts below in their concurrent findings of fact and to hold that the Appellant was properly convicted of the lesser offence of “rash and negligent act”. Also, the Courts below were right in rejecting the defences of provocation and self defence. Certainly, the medical report was not needed as the cause of death was well known and the conspiracy adequately inferred from the resultant act.

This appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which affirmed the conviction and sentences dished out by the trial Court. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft before now, the judgment of my learned brother, Mary Ukaego, Peter-Odili, JSC, just delivered. I agree that the appeal lacks merit and deserves to be dismissed.

​His Lordship has most ably and comprehensively dealt with the issue in contention in this appeal. I have nothing to add to improve on the sound reasoning and conclusions reached in the lead judgment I adopt same as my own in dismissing the appeal and affirming the concurrent findings of the two lower Courts, which have not been shown to be perverse. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading a draft of the judgment just delivered by my learned brother, Mary Ukaego Peter-Odili, JSC and to show my support for the reasoning adumbrated therein, I shall proffer a few comments.

The Appellant, together with two other persons were charged with criminal conspiracy and culpable homicide punishable with death under Section 97 and 221 of the Penal Code Law, respectively. Upon conclusion of trial they were convicted for conspiracy and a lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law and sentenced accordingly.

The Appellant’s main line of contention in this appeal therefore is that the deceased died not as result of the beating he and his co-accused persons subjected him to but for some other causes thus, he deserves an outright acquittal and discharge by the Court.

​The law is abundantly settled that medical certificate as to the cause of death may be dispensed with where death, as in this case, occurred instantly or almost immediately from the voluntary act of an accused person. See Iregu Vs. State (2013)12 NWLR (Pt.1367)92; Haruna vs. Attorney-General of the Federation (2012) 9 NWLR P.419; Alarape Vs. State (2001) 5 NWLR (Pt. 705)79. In this case, evidence adduced shows that the deceased collapsed while he was being beaten by the accused persons. He was confirmed dead shortly after.

It is therefore no brainer that the deceased died from the beating inflicted upon him by the Appellant. Their lack of intention to kill him can only lessen the gravity of the offence committed from murder to manslaughter but definitely not an acquittal. The production of medical report to establish the cause of death was a surplusage on the part of the prosecution as this is an appropriate case where medical evidence could be dispensed with. See Lori Vs. State (1980) 8-11 SC 81.

​In the final analysis, I hold that this appeal has no merit. It was rightly dismissed at the Court below and I have no hesitation dismissing it. I so hold. The judgment of the Court of Appeal delivered on 26th February, 2016 which upheld the conviction and sentence passed on the Appellant by the trial Court is hereby affirmed. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment prepared by my learned brother, MARY UKAEGO PETER-ODILI, JSC. I endorse the reasoning therein and conclusions thereat that there is no merit in this appeal. I shall however, add a few words in support.

This appeal is against the affirmation by the Court of Appeal, sitting at Kaduna, of the conviction and sentence of the Appellant for conspiracy and culpable homicide not punishable by death, by the trial Court.

​The Appellant and two others were arraigned before the Kaduna State High Court on a two count charge of conspiracy to commit an illegal act contrary to the provisions of Section 97 of the Penal Code Law of Kaduna State and of culpable homicide punishable with death contrary to the provisions of Section 221(b) of the Penal Code Law of Kaduna State.

They were alleged to have on or about the 1st of February at AnchaGida Village, Sanga Local Government Area of Kaduna State, conspired to beat and to have beaten, one Mallam Makama Adamu to death by inflicting injuries on his head, with knowledge that death would be the probable consequence of their actions.

They pleaded “Not Guilty” to the charge and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits in the proof of its case. The Convicts called three witnesses, including themselves, in proof of their defence.

At the conclusion of trial and after the final addresses of Counsel, the trial Court entered judgment wherein it found the Convicts guilty of conspiracy and of culpable homicide not punishable with death under Section 222(7) of the Penal Code Law and it sentenced each of them to one (1) year imprisonment, on Count one (which deals with the offence of conspiracy), and five (5) years imprisonment on Count two (which deals with the offence of murder).

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below. The Court below in its judgment dismissed the appeal and affirmed the judgment of the trial Court.

​The Appellant is still aggrieved, hence his further appeal to this Court. He raised two issues for determination, namely: 1. Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons? 2.

Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law?

The Respondent, distilled a sole issue, asking the question: “Whether or not from the totality of the facts and law, the lower Court was justified to have found the Appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with?”

​My learned brother PETER-ODILI, JSC, adopted the sole issue raised by the Respondent in the determination of this appeal and summarized the arguments of Counsel on both sides. I also adopt the sole issue and the arguments as summarized by my learned brother, and add a few words in support.

The grouse of Appellant herein inter alia, was the propriety of the Court below, in invoking its powers under Section 218 (2) of the Criminal Procedure Code to convict him for the lesser offence of culpable homicide not punishable with death under Section 222(7) of the Penal Code without first calling the parties to address it on the applicability of the section. It is on this that the Appellant predicated his submission of lack of fair hearing.

It must be stated that this contention of the Counsel for the Appellant is not new and it had been raised in the past and had been debunked by the Courts. The arguments were considered by this Court in the case of Nwachukwu v.

The State (1986) LPELR 2085 SC or (1986) 2 NWLR (Pt.25) 765, Karibi-Whyte, JSC stated at pages 778-779 D- G of the case thus: “I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void. I have already analysed the provisions of Section 179 of the Criminal Procedure Act, and stated their purport.

There is no doubt that the lesser offence in respect of which an accused is convicted must be included in the substance of the charge and the evidence relied upon for conviction must support the lesser offence. On the facts before the Court below, it is difficult to contend that at the trial, Appellant was not aware of the fact of the circumstances that he was being tried for the offence of robbery, the aggravated nature of the offence merely resting on the circumstances of his commission of the offence.

Section 179 in both sub-sections clearly in the expression, although he was not charged with it, exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested.

Above all, the lesser offence is implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence” ​A trial Court and indeed an appellate Court has the inherent and statutory jurisdiction to convict and sentence an accused person for a lesser offence other than the one with which the accused person was originally charged.

The conviction of such an accused person in this regard will not be regarded as a violation of the accused person’s right to fair hearing as guaranteed by the provision of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

However, for a Court to be able to invoke its power and/or jurisdiction as stated in the above quoted provisions of the law, the following elements must be established: 1. The offence the accused person was originally charged with and the one he was convicted for, must share the same ingredients or almost the same elements. 2. The facts of the case and evidence adduced by the prosecution must be insufficient or inadequate to convict the accused person in the original offence or charge, but was sufficient in respect of the lesser offence. See: Adeyemi v.

The State (1991) LPELR-172SC ​Clearly, the application of the provision of Section 218(2) of the Criminal Procedure Code, to convict an accused of a lesser offence as disclosed from the evidence on record, has nothing to do with the opportunity given to the parties to present their cases freely before the Court.

The exercise of the procedural power of the trial Judge to convict of a lesser offence under the provision of Section 218(2) of the Criminal Procedure Code, after the close of hearing in his final judgment, is an exercise of judicial powers in accordance with the law which has nothing to do with the principles of fair hearing and cannot be interpreted to mean denial of fair hearing.

It therefore follows that the lesser offence, must be a combination of some of the several particulars making up the offence charged; in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.

In the instant case, the Appellant was originally charged for culpable homicide punishable with death under Section 221 of the Penal Code, but he was convicted for culpable homicide, not punishable with death under Section 222(7) of the Penal Code.

It is trite that to successfully establish a charge of culpable homicide punishable with death, against an accused person, the Prosecution is required to establish the following ingredients, conjunctively: i. The deceased died, ii. The death of the deceased was a result of the act of the accused person, and iii. The said 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. See the cases of: Ogunniyi v. The State (2012) LPELR-8567 Sani v. The State (2013) LPELR-20382.

With regard to culpable homicide not punishable with death, the above ingredients are also included, but with slight modification in respect of the third ingredient wherein the act or omission that caused the deceased’s death was done: i. Accidentally ii. In the heat of passion caused due to provocation; or iii. Where there is complete lack of intention.

​The learned trial Judge in the instant case found that the act of the Appellant which occasioned the deceased’s death was done without the intention to cause death and/or accidentally. Consequently, he found the Appellant guilty of culpable homicide not punishable with death, as distinct from the culpable homicide punishable with death, with which he was charged. This was affirmed by the Court below.

These findings of the two lower Courts are unassailable and based on credible and admissible evidence on record.

In summary, I am of the firm view point that the learned trial Judge acted rightly when he convicted and sentenced the Appellant for culpable homicide not punishable by death, instead of culpable homicide punishable with death, which was the offence with which he was originally charged. The Appellant had knowledge that he was standing trial for culpable homicide punishable with death. He had defended himself on the allegations and no additional evidence or facts other than those led at his trial were introduced to support his conviction for a lesser offence.

It is for these reasons, and for the fuller reasons contained in the lead judgment of my learned brother MARY UKAEGO PETER-ODILI, JSC, that I too adjudge this appeal to be devoid of merit and I accordingly dismiss it.

​I also abide by the consequential order(s), if any, contained in the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning eloquently expressed in the judgment just delivered by my learned brother, Hon. Justice M.U. PETER-ODILI JSC, to the effect that the instant appeal lacks merits.

​Accordingly, I too hereby dismiss the appeal for lacking in merits. I abide by the consequential orders made in the judgment. Appeal dismissed.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on the 7th day of November, 2018. Coram: Ibrahim M. Saulawa JCA, Chidi Nwaoma Uwa JCA, and Hamma Akawu Barka JCA. The learned justices upheld the judgment of the trial Court that found the Appellant guilty of the two count charge of Criminal Conspiracy and Armed Robbery and sentenced him to death. The Appellant being dissatisfied with the judgment of the lower Court filed a Notice of Appeal on the 31st day of March, 2021.

The facts that led to this appeal are as follows: ​The Appellant and a co-Defendant were arraigned before the High Court of Justice Kwara State sitting at Ilorin presided over by Honourable Justice A.S. Oyinloye on a two count charge of Criminal Conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 and Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.

The Appellant pleaded not guilty to the charge and further told the Court that his statement was not voluntarily made by him. A trial-within-trial was conducted where the Appellant gave evidence that he was made to sign the said statement involuntarily. The Court however overruled his objection and admitted the statement in evidence.

The complainants in this case, i.e. one Saidu Ibrahim and one Hassan Ibrahim were robbed with the use of guns and cutlasses. The sum of N450,000.00 and 24,000 Cefas were stolen from them. One of the complainants was able to see the face of the Appellant and his co-defendant identified them because he knew them previously and their houses. They immediately reported the incident to the vigilantes who in turn arrested the culprits and handed them over to the police. Some of the money recovered from the Appellant and his co-defendants were part of the sum forcefully taken from the victims.

In the brief settled for the Appellant by Oluronke Adeyemi of counsel, three (3) issues were identified from the grounds of appeal, they are set out below: 1.

Whether the lower Court was right to have held that “from the manner in which the grounds 1 of the Notice of Appeal was couched, it did not question the admissibility of Exhibit P6, contained in the trial Court’s ruling of 4th March, 2015 following the trial within trial when the issue of voluntariness of the Appellant’s extra-judicial statement arose and was decided upon and therefore there is no appeal against the trial Court’s ruling that the extra-judicial statement made by the Appellant was voluntarily made and the decision admitting same as Exhibit P6” (Ground 1). 2.

Whether the lower Court was right when it held that there was no need to call the interpreter who gave evidence in the trial within trial back to give the same account of his interpretation in the main trial. (Ground 2) 3. Whether from the totality of the admissible evidence, the learned Justices of the Court of Appeal were right to have upheld the conviction and sentence of the Appellant for the offences of Conspiracy and Armed Robbery. (Ground 3).

The same issues albeit in different wordings were identified by learned Respondent’s Counsel Abiodun Dada Esq.

After reading the record, the germane issue for determination in this appeal in my view is to wit: Whether the learned lower Court was right to affirm the judgment of the learned trial Court wherein the appellant was convicted. ​ The Appellant complained about the holding of the Court below that from the manner in which Ground 1 of the Notice of Appeal to the Court of Appeal was couched it did not question the admissibility of Exh P6, the confessional Statement of the Appellant admitted on 4/3/15 after a trial within trial conducted during the course of the main trial.

The Appellant’s counsel complained that it was wrong of the Court below to decide that the grounds of appeal before the Court below did not suggest that the Appellant had a complaint against the ruling wherein the trial Court held that Exh P6 was voluntarily made and admitted same. Counsel argued that the first ground of appeal before the Court below including the particulars having mentioned the issue of involuntariness of the confessional statement as one of the complaints of the Appellant, it therefore becomes an issue that the Appeal Court was called upon to pronounce on.

Counsel cited NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822 (SC) ​ In paragraph 4:10 on Page 7 of the Appellant’s brief, counsel insisted that a Conjunctive reading of the Appellant’s ground one and the particulars of error would have established before the appeal Court that the main issue complained of by the Appellant was the voluntariness or otherwise of the alleged confessional statement.

Learned Appellant’s Counsel further argued that the Appellant’s grouse with Exhibit P6 is that it was not in compliance with the provision of the law which requires the statement to the police to be made under caution in the language spoken by the Appellant and in the exact words used by him and then translated into the language of the Court (English) since the Appellant is an illiterate. Counsel cited GUNDIRI v. NYAKO (2013) ALL FWLR Pt.698 Pg.816 at 828 Pg.856. Counsel also cited ZAKARI AHMED v. THE STATE (1999) 5 SCNJ 223.

On this point, the learned Respondent’s counsel argued that from the way ground 1 of the grounds of appeal donated at the Court of Appeal was couched, there was no challenge to the admissibility of Exh P6 and that the ruling which admitted same is still extant and binding on the Appellant.

Respondent’s counsel cited TUNDE ASIMI v. THE STATE (2016) LPELR-40436 (SC); (2018) 12 NWLR Pt.1527 Pg. 431.

Counsel also argued that the confessional Statement Exh P6 was admitted after a trial within trial which was properly conducted to determine the admissibility of same once the Court was satisfied with its voluntariness. Counsel cited YUSUF v. THE STATE (1976) LPELR- 3527 Pg. 9 (SC). Counsel submitted that the authorities cited by the Appellant’s counsel are irrelevant in the circumstances of this case.

My Lords on this point in contention, there is a misconception by learned Appellant’s counsel of the state of the law. The question relating to the admissibility of a confessional statement is different from the issue of a trial Court misdirecting itself on the probative value to give the retracted confessional Statement.

Ground 1 of the Notice of Appeal to the Court of Appeal reads thus: “The trial Judge erred in law when he convicted the Appellant for criminal conspiracy and armed robbery relying largely on the alleged confessional statement (Exhibit P6) of the Appellant and the evidence of PW1 only and this has occasioned a miscarriage of justice against the Appellant.”

Paragraph A of the Particulars of Ground 1 is set out below: “The appellant in the course of his trial stated before the Court that the said confessional statements were not made voluntarily by him and as such the trial judge ought to have been hesitant in basing his conviction upon same.”

Clearly, the ground of appeal and the particulars thereof relate to the probative value to be attached to the confessional statement rather than its intrinsic admissibility for being contrary to Section 29 of the Evidence Act. The point obviously made out by the ground of appeal is that the Appellant having retracted the statement even if it was admitted as evidence, should not have been used by the trial judge as one of the basis to convict him. The argument of the Appellant’s Counsel in paragraph 4:10 of the brief is completely misconceived.

On this point, the Appellant based his argument solely on particular 1 A of the grounds of appeal. In the circumstance I agree with the opinion of the learned lead judgment of the Court of Appeal on page 194 of the record per UWA JCA as follows: “The decision or order to admit the extra-judicial statement of the appellant is a decision or order that is appealable as in a judgment.

It is an interlocutory decision and appeal against same may be safely included in the appeal against the trial Court’s decision in the matter but, there was none in this case.” The Court went further on Pg. 195 to conclude as follows: “I hold that there was no appeal against the ruling following the trial within trial, same remains valid until set aside. It is deemed correct in absence of an appeal and the confessional statement also deemed properly admitted in evidence as voluntarily made.”

I agree unreservedly with the above conclusions of law. ​ The 2nd complaint made by the Appellant against the judgment of the Court below is that it was wrong of the Court below to hold that there was no need to call back the interpreter who gave evidence at the trial within trial to give evidence at the main trial of the same account of how he interpreted the extra-judicial statement made in vernacular to English for the benefit of the Appellant.

Learned Appellant’s counsel submitted that the interpreter TWTP3 should have been made available to give evidence at the main trial and failure to do so caused miscarriage of justice. See ALIU v. THE STATE (2015) ALL FWLR Pt.782 Pg 1706, at 1746, TAYO v. THE STATE (2016) ALL FWLR Pt.853 Pg 1729 at 1760, ASIMI v. STATE (2016) LPELR- 40436 (SC).

Counsel also cited MOHAMMED BELLO v. C.O.P. (2018) 2 NWLR Pt.1603 Pg.267 at 328-329. Counsel urged this Court to find that Exh P6 is inadmissible without calling the interpreter who interpreted it and this, being the basis of the Respondent’s case, the Respondent’s case cannot be sustained.

Learned Appellant’s counsel submitted that the trial within trial is a separate trial which ended with the Court’s ruling, thus the proceedings therein cannot be imported into the main proceedings. Counsel cited IFARAMOYE v. STATE (2017) ALL FWLR Pt.917 Pg. 1551 at 1589, SA’IDU v. STATE (2016) ALL FWLR Pt. 849 pg. 926 at 904.

Learned Respondent’s Counsel on the other hand argued that the interpreter, one Inspector Salami M who testified as TWTP3 was called as a witness during trial within trial. The onus to interpret the content of Exhibit P6 has been discharged in trial within trial by the interpreter one Inspector Salami M who testified as TWTP3, hence no further clarification is required that will warrant the recall of the interpreter.

The said Inspector Salami M had testified and given evidence of the steps he took in establishing the voluntariness of the said Exhibit P6 and the fact that he interpreted the statement made by the Appellant thereby removing any lacuna/doubt that may by occasioned in admitting as Exhibit and placing reliance on the said confessional statement.

My Lords, the Court below held on this point as follows on pg. 205 of the record: “On the confessional statement still, the learned counsel to the appellant had also faulted same, arguing that the interpreter was not called to testify in Court which rendered the confessional statement inadmissible. Exhibit P6 was interpreted by one Inspector Salami M. in English Language read over and translated to the Appellant in Hausa Language and vice versa. He testified as TWTP3 (Inspector Salami Mathew) in the trial within trial at page 47 – 48 of the printed records while one Sgt.

Opeoluwa Yakubu was the recorder who testified as TWTP1, page 44 – 46 of the printed records of appeal. The trial within trial is part of the proceedings of the trial Court. The TWTP3 gave a detailed account of where and how the statement of the Appellant was obtained, which was interpreted and understood before the appellant thumb printed on it. I am of the humble, but firm view that there was no need to call the interpreter back to give the same account of his interpretation.”

My Lords, there is no doubt that the law is that failure to call the interpreter of a confessional Statement as well as the person who recorded the statement as witnesses renders the confessional Statement inadmissible in Court. In the absence of the interpreter in Court, the document is regarded as documentary hearsay. See OLALEKAN v. THE STATE (2001) 12 SCNJ 94 Pg. 109 at 110, ODEKUNLE v. THE STATE (2015) LPELR-25766, IFARAMOYE v. THE STATE (2017) LPELR-42031 (SC).

Where the prosecution’s case is basely solely on a confessional Statement and the police officer who recorded it in the native language and the person or officer who interpreted it into English or vice versa were not called to give evidence on oath during the trial, the conviction has been held erroneous and liable to be set aside.

In respect of the point whether the evidence during the trial within trial suffices and the interpreter need not be re-called to give evidence of how the statement was taken during the main trial, there is no doubt that the rationale behind the requirement that the interpreter must be called is that given the fact that it is the interpreter who understands both the language spoken by the Defendant and the language understood by the officer who recorded the statement, it is the interpreter who can know exactly the circumstances under which the statement was taken, the types of questions asked the Defendant etc.

These questions and answers would determine whether the statement was voluntarily made, whether the Defendant was tricked into implicating himself etc. and reflected the exact contents of what the Defendant confessed to. The evidence of TWTW3 at the trial within trial regarding the circumstances under which the statement was taken satisfies the requirement that the statement reflected what the Appellant intended to say. Therefore, there was no need for a further confirmation of the circumstance, in which the statement was taken.

The legal implication of the statement being documentary hearsay has been removed by the testimony of the interpreter during trial within trial. The circumstances here are different from where no interpreter was called during the trial at any point to tell the Court the circumstances under which he did the interpretation and the questions put to the Defendant and the answers given which he put in the language of the Court or vice versa.

I agree with the Court below on this point that the general rule of law is not set in stone particularly where at some point at the trial the interpreter was called and the defence had an opportunity to cross-examine the officer on how the statement was taken and translated. ​ The other complaint relates to whether the prosecution proved the guilt of the Appellant beyond reasonable doubt. The appellant’s counsel urged the view that there was no eyewitness to the crime who gave evidence before the trial Court.

The only witness, an I.O.P. was not the initial police officer who investigated the crime, arrested the Defendants and recovered exhibits from them. The only thing the witness for the prosecution did was to tender the retracted confessional statement of the Appellant. Counsel argued that in criminal cases the onus of proof is fixed on the prosecution by Section 136(1) of the Evidence Act and that apart from the confessional statement Exh P6 there is absolutely no evidence on oath linking the Appellant with the crime.

Any doubt about whether in fact the Appellant committed the crime should be resolved in favour of the Appellant. Counsel cited YONGO v. POLICE (1992) 8 NWLR Pt. 257 Pg. 36, BABUGA v. THE STATE (1996) 7 NWLR Pt. 460 Pg. 279, EDOHO v. STATE (2003) F.W.L.R. (Pt.173) 29 Pg. 48, Paras A-C, OYEBODE v. GABRIEL (2013) ALL F.W.L.R.(PT.669) 1043 @ 1052 particularly Pg.1079, Paras. F, holden 17 and ADEYEYE v. STATE (2013) ALL FWLR (Pt. 704) 108 @ 111.

Learned Respondent’s Counsel argued that there cannot be better evidence than a confessional statement made voluntarily by the Appellant though retracted to prove the offence against a defendant in a criminal trial. Counsel argued that the confessional statement of the Appellant was a direct and positive admission of guilt and even though it was retracted needed no further corroboration. Counsel cited AKOGWU v. STATE (2017) 4-5 SC Pg. 4, ADAMU v. THE STATE (2016) ALL FWLR Pt. 852 Pg. 1551, HASSAN v. THE STATE (2017) ALL FWLR Pt. 890 Pg. 738 at Pg.753.

My Lords, the retracted confessional statement of the Appellant in Exh P6 was a direct, positive admission of guilt and thus cogent enough to sustain a conviction. This is because the statement meets the probability or credibility tests. P.W.1, the I.P.O. tendered the exhibits recovered from the Appellant and the Co-defendant at trial. The items, dane gun and money, tendered in Court as Exhibits were the same things the Appellant had admitted that he used and stole respectively in Exh P6 which were recovered from him during police investigation and handed over to P.W.1.

It is not wrong for a single police officer to tender in Court exhibits recovered from a Defendant and to give evidence of collective police investigation that led to the apprehension of the Defendant. The evidence of police investigation proved the guilt of the Appellant beyond reasonable doubt. ​ In the circumstances, the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt. Having given thorough scrutiny to the judgments of the two lower Courts, I cannot find them perverse in their reasoning and conclusion.

There is no reason to upset the concurrent findings of fact of the two lower Courts, I affirm the judgment of the lower Court which affirmed the judgment of the trial Court convicting the Appellant of conspiracy and armed robbery. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I have had the privilege of reading the leading judgment of my learned brother, Ogunwumiju, JSC, I agree with the conclusion that this appeal must fail.

In adherence to the general rule of this Court, we have declined to interfere with the concurrent findings of the two lower Courts as there are no substantial and compelling factors that justify a divergence from their reasoning and conclusions.

It is for these, and the more elaborate reasons in the leading judgment that I too shall enter an order dismissing this appeal as unmeritorious. Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother – Ogunwumiji, JSC, and I agree with him that this appeal totally lacks merit. It is well-settled that findings on primary facts are matters within the province of a trial Court and there is a rebuttable presumption that a trial Court’s findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see Ibhafidon V.

Igbinosun(2001) 8 NWLR (Pt. 716) 653 SC, wherein this Court, per Karibi-Whyte, JSC, stated as follows – “It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because 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.

Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.” So, findings of facts made by a trial Court, which passed 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; are accorded due respect in appellate Courts that did not have the advantage of the trial Judge, and that is exactly what the Court of Appeal did in this case – accord respect to the findings of fact made by the trial Court and affirm same.

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

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the judgment written by my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with the reasons adduced and the conclusion, that this appeal lacks merit and ought to be dismissed. I only add a few words in support.

This appeal is against the judgment of the Court of Appeal sitting at Ilorin, delivered on the 7th of November, 2018, wherein His Lordships upheld the judgment of the Kwara State High Court delivered on the 27th day of April, 2017, presided over by A.S.

Oyinloye, J, which found the Appellant guilty of the two count charge of criminal conspiracy and armed robbery and sentenced him to death by hanging. ​ The background facts leading to this appeal, are that the Appellant as the 2nd Defendant at the trial Court, was arraigned for the offence of conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004 and Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN 2004.

The Appellant was alleged to have conspired with one Oseni Mamudu to rob and did rob one Saidu Ibrahim and Hassan Ibrahim while armed with a gun, of their valuables to wit: N450,000.00 (Four Hundred and Fifty Thousand Naira) and 24,000 Cefas in cash.

The two count charge was read and interpreted to the Appellant in Hausa language; he understood same and pleaded not guilty to the charge. To establish its case, the Prosecution called a sole witness, one Sergeant Opaluwa Yakubu (PW1) who was the Exhibit keeper as well as the investigator.

He tendered a dane gun, a cutlass, 2 caps and a Bond to produce a document executed by one Saidu Ibrahim, each was admitted and marked as Exhibits P1, P2, P3A, P3B and P4 respectively. ​ The PW1 testified that he investigated the alleged offence of armed robbery by taking the statement of the appellant which was tendered and admitted as Exhibit “P6”. Further, under cross-examination, the PW1 testified that he was not at the scene of the crime and that no incriminating item was recovered during his visit to the scene.

It was made out that the PW1 was not present when the Exhibits were recovered but, rather that the Exhibits were given to him by a former Investigating Police Officer (IPO). Also, that he did not personally arrest the Appellant and did not personally recover anything from him.

On the part of the Appellant who testified as DW2, he gave account of his movement on the day of his arrest to the effect that he was with their cattle in company of his younger brother and was accosted by a vigilante group on his way to Budo Sawa to buy some food. He explained his mission to them and his intention to return to their cattle grazing by the River after the purchase of some food. ​ It was established that, on a search by the vigilante group, only the sum of N1,000.00 (One Thousand Naira) and a plastic water bottle was found on him.

He was taken to the Police Station at Gwanara and later transferred to Ilorin Division. The Appellant as DW2, denied knowing the 1st Defendant and also denied ownership of the Exhibits. He also denied conspiring with anyone to rob. He denied sharing any money with anyone but, maintained that he had only the sum of N1,000.00 (One Thousand) found on him at the time of arrest.

At the close of the trial, the trial Court found the Appellant guilty of the two count charge, convicted and sentenced him to death by hanging.

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below, which dismissed the appeal, and affirmed the judgment of the trial Court.

The Appellant is still unhappy, hence his further appeal to this Court. In his brief of argument, three issues were formulated for by the Appellant, for the determination of this Court. They are: 1.

Whether the lower Court was right to have held that “from the manner in which the Ground 1 of the Notice of Appeal was couched, it did not question the admissibility of Exhibit P6, contained in the trial Court’s ruling of 4th March 2015, following the trial within trial when the issue of voluntariness of the Appellant’s extra-judicial statement arose and was decided upon and therefore there is no appeal against the trial Court’s ruling that the extra-judicial statement made by the Appellant was voluntarily made and the decision admitting same as Exhibit P6? 2.

Whether the lower Court was right when it held that there was no need to call the interpreter who gave in the trial within trial back, to give the same account of his interpretation in the main trial? 3. Whether from the totality of the admissible evidence, the learned Justices of the Court of Appeal were right to have upheld the conviction and sentencing of the Appellant for the offences of Conspiracy and Armed Robbery?

The Respondent in its brief of argument, also distilled three issues. They are: 1. Whether if the Appellant’s ground 1 of his Notice of Appeal at the Court below was couched in a manner that question the admissibility of Exhibit P6, was Exhibit P6 rightly admitted by trial Court after conducting trial within trial? 2. Whether the Court of Appeal was right in upholding/affirming the judgment of the trial Court without recalling the interpreter in the main trial, having been called during trial within trial? 3.

Whether from the totality of evidence adduced at the trial Court the Prosecution was able to prove the ingredients of the offences charged which the Court of Appeal can rely on in upholding the trial Court’s judgment?

The pith of this appeal is whether from the totality of evidence adduced at the trial Court the Prosecution was able to prove the ingredients of the offences charged, which the Court of Appeal relied on in upholding the trial Court’s judgment?

In is judgment, the Court below, wherein it was held that inter alia: “The law is that where an accused person makes an extra-judicial statement, admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in determining his guilt, irrespective of the fact that he had resiled from that evidence in his testimony at the trial, by giving testimony in Court contrary to the previous evidence.

Exhibit P6 was found to be voluntarily made to the police, it contains all the essential ingredients of the offence of armed robbery, the Appellant clearly confessed/admitted that he with his two friends/colleagues acted as one, conspired and did carry out the armed robbery for which he was tried and convicted. He gave account of the plans and execution of same, he also, gave details of how they shared their loot, what he got and handed over same on his arrest. The Appellant volunteered/gave himself in to the vigilante group when he was being looked for.

He willingly led the group to where the arms were kept, at Orii’s house from where they were recovered. He identified the gun that he used for the operation. The Appellant’s confessional statement alone, Exhibit P6 is enough to convict the Appellant. Exhibit P1 (a dane gun), Exhibit P2 (a cutlass), Exhibits P3A and 3B (two (2) caps) and Exhibit P4 (the bond to produce various sums of money) were admitted in evidence by the trial Court. These Exhibits were mentioned in Exhibit 6, tendered through the PWI who testified that Exhibits P1 – P3 were handed over to him by the previous IPO.

The learned trial judge at pages 125 – 126 held thus: “l think the position of the law is settled and that is that an Accused person can be convicted solely on the basis of his confession if it admits the guilt of the offence and not given to different interpretations.” I cannot fault the above view. The trial Court also, rightly held that the proof of the offence of criminal conspiracy could be inferred and indeed inferred proof of the offence from the acts of the appellant.

Further, on the armed robbery charge, Exhibit P6 connected. the Appellant with the money recovered and released on Bond, Exhibit P4. The Appellant stated clearly that the parcel was opened in his presence and the sum of 24,000 Cefas was part of the money he robbed with his colleagues. He also identified the dane gun recovered by the vigilante group from Orii’s house, as the one he (the Appellant) used during the operation.

The Appellant did not give an alternative place from where the Exhibits could have been obtained from and did not make out that he had nothing to do with the Exhibits in Exhibit P6. On the other hand, the defence did not give any explanation in respect of the Exhibits and how they came about if not as explained in Exhibit P6, the Appellant’s confession, coming from the horse’s mouth so to say.

I hold that the trial Court was right to have held that the prosecution proved both counts of the charge preferred against the appellant beyond reasonable doubt.” ​ I agree entirely with the reasoning and conclusion reached by the Court below which views I adjudge to be unassailable and which I adopt in toto.

Section 28 of the Evidence Act 2011, as amended, defined Confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence.

In Akpa v. State (2008) 14 NWLR (Pt 1106) 72, it was held among others that an accused person can be convicted on his Confessional Statement alone when same is positive, direct and proved. See also Nweze v. State (2018) 6 NWLR (Pt 1615) 197. It is trite law that once a confessional statement has been made voluntarily, and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled there-from or retracted same completely at the trial. See Ubierho v.

The State (2005) 5 NWLR (Pt. 919) 644 SC, where this Court held that there is nothing sacrosanct about a confession, thus, the fact that an accused has retracted an confessional statement does not mean that the Court cannot act upon it. However, it is desirable to have some evidence outside the retracted confession before a conviction is based on the retracted confession.

In this case, the Appellant’s confessional statement, Exhibit P6 was made voluntarily, and it was direct, positive, and unequivocal and clearly amounts to an admission of guilt. It can ground a conviction and the two Courts below were right to so hold.

Based on the above and the fuller reasons enunciated in the Lead Judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, I agree that there is no merit in this appeal. It is hereby dismissed by me.

The judgment of the Court of Appeal which affirmed the conviction and sentence of the Appellant to death, is further affirmed by me. Appeal dismissed.

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

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Jigawa State High Court in Charge No. JDU/52C/A/2019, delivered on 10th December, 2020 by Hon. Justice Musa Ubale wherein Appellant was convicted for rape, under Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014 of Jigawa State and sentenced to twenty-one years imprisonment.

At the lower Court, Appellant was accused as follows:- “That you Dauda Malam Mato ‘M’ aged 35 years of Tsangayar Yamma, Kangire Birnin Kudu Local Government on or about the 24th day of October, 2017, at Tsangayar Yamma Quarters, Birnin Kudu Local Government Area within Jigawa Judicial Division, called one Fa’iza Idris, aged about 10 years old to your friend’s room and had sexual intercourse with one Faiza Idris ‘f’ aged 10 years (sic) and you hereby (sic) committed the offence of rape punishable under Section 3 of the Penal Code (Miscellaneous Amendment) Law of Jigawa State of Nigeria, 2014.” Appellant was arraigned on 21/7/2020 when the charge was read and interpreted to him in Hausa Language and he said he understood the same and pleaded, Not Guilty.

After hearing the case and considering the evidence and addresses of Counsel, the trial Court held the appellant guilty of the offence and said: “In Ezigbo Vs State (2012) LPELR – 7855 at Pp. 8-9, the Supreme Court held that “It is settled in law that for the prosecution to sustain a conviction against the appellant under Section 283 of the Penal Code Law and the following ingredient of the offence must be established by evidence.

A man is said to commit rape when he had sexual intercourse with a woman in any of the following circumstances….. (e) with or without her consent when she is under fourteen years of age or of unsound mind” Per Onnoghen, JSC The facts before this Court is the charge against the defendant for the rape of PW4, a ten year old girl and she testified that the defendant called her, bought her food, asked her to take the food to his room, as she entered he followed her, removed her wrapper and he removed his trouser and had sexual intercourse with her.

In his defence, DW1 the defendant testified that the prosecutrix had brought food, in his house and he bought the food and gave her money and left. But when he came out and saw her with PW2 vigilante people when they asked him he denied admitting that the prosecutrix was from his house until they beat him that he admitted but said he only bought food from her. Under cross-examination, the defendant testified that on the fateful night when the prosecutrix entered his house, his wife was not at home.

The evidence adduced by PW4 was never shaken nor contradicted, in fact, the defendant had corroborated her entry into his house only that he denied having sexual intercourse with her. It is however to be noted that in a case of rape, the person ravished is a competent witness and her evidence is always vital in dealing with the most important element in the case. See Ekpo & Anor Vs. State (1976) LPELR – 1095, SC, therefore, the prosecutrix testified that the defendant had sexual intercourse with her and the Doctor who testified as PW3 stated that the hymen of PW4 was found not intact.

This clearly established that the defendant had sexual intercourse with the prosecutrix. It is important to note that under the Penal Code Law, a child who is under the age of 14 years is incapable of giving consent. Therefore, it is my respectful view that the evidence led by the prosecution are not contradicted and therefore are acceptable by me.

Furthermore, the defendant had made extra judicial statement to the police were (sic) in he stated voluntarily that he had sexual intercourse with the prosecutrix… The defendant had never resiled from making the statement in his testimony in open Court.

It is therefore my view that the confession made by the defendant, which was admitted in evidence and marked Exhibit A1 and A2, proved to have been made voluntarily…” (see pages 45-46 of the Records of Appeal) Dissatisfied with the above findings and decision of the lower Court, Appellant brought this appeal, as per the Amended Notice of Appeal, filed on 18/6/2021 and deemed duly filed on 7/10/2021, disclosing 4 grounds of Appeal. Appellant filed his Brief of Arguments on 18/6/2021, which was also deemed duly filed on 7/10/2021.

Appellant distilled a lone issue for the determination of the Appeal as follows: “Whether upon a solemn consideration of the entire evidence on record and the absence of corroborative evidence, the prosecution successfully established the presence of the element of penetration and linked same to the Appellant, to warrant a conviction for Rape?” The Respondent filed its brief on 2/9/2021 which was also deemed duly filed on 7/10/2021.

The Respondent also raised a lone issue, namely: “Whether the Respondent had proved the offence of rape against the Appellant beyond reasonable doubt?” The Respondent also filed a Cross-Appeal (which shall be treated, separately, later). Arguing the appeal on 24/11/2021, Appellant’s Counsel, Olukayode Ariwoola Jnr., Esq., said the justice of this case requires the ingredients of rape to be established, that where it is not done, our emotions and human nature notwithstanding, the Appellant being a man in his prime should be allowed to go home. He relied on the case of Josiah Vs.

State (1985) LPELR-1633 SC, and said that, before Appellant can be found guilty, he must be properly tried, and the ingredients of the offence proved by credible and cogent evidence, he said that sympathy and sentiments have no place in the administration of justice – relying on Poatson Graphic Arts Trade Ltd & Anor Vs. NDIC (2017) LPELR-42567 CA: “The justice administration in a Court is not abstract justice conceived by the judge. It is according to law. The law is trite, that sympathy and sentiments have no place in the administration of justice.

A Court of law does not base its decision on sympathy or sentiments.” Counsel relied on the case of State Vs. Masiga (2017) LPELR-43474 (SC) to say that, among other ingredients to be established in a rape case, penetration must be proved – Shuaibi Musa Vs. The State (supra) and Jegede Vs. The State (2001) 4 NWLR (Pt 733) to the effect that: “Whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.” He also relied onIsa Vs. State (2016) LPELR-40011 (SC); Ezigbo Vs.

State (2012) LPELR-7855 (SC) and Idi Vs State (2017) LPELR-42587 (SC). Counsel argued that penetration was not established by the prosecution. He also argued that since the victim (PW4) was only a minor of 10 years of age, her evidence required corroboration to succeed. He argued that there was no corroboration of the evidence by PW4.

Counsel tried to analyze the evidence of PW1, PW2, PW3 and Pw4 and said that the story of rape was what PW4 presented, that even PW2, who saw when PW4 ran out of the house, did not give evidence of the condition of the PW4 at that stage – whether her clothe was torn or there was blood stain; any evidence of struggle; or that PW4 was crying; he said there was sperm stain on her cloth etc. – to induce the inference of rape. He relied on the case of Okoyomon Vs State (1973) NSCC Vol. 8 page 9 at 13.

Counsel said the evidence of PW3 showed that he (Doctor) saw the prosecutrix (PW4) a day after the molestation; that his (PW3) evidence, repeatedly used the word ‘molest’ instead of rape or sexual intercourse, Counsel said that to ‘molest’ means to disturb or annoy by malevolent interference or to accost or attack, especially with the intention of assaulting sexually.” He relied on Collins Dictionary.

He also relied on New Webster Comprehensive Dictionary and Black’s Law Dictionary for the meanings of ‘molest’ to means “To annoy or harm by interference, disturb incuriously” and “The persecution or harassment of someone as in the molestation of a witness; the act of making unwanted and indecent advances to someone, especially for sexual gratification” respectively. Counsel said the PW3 (Medical Doctor) was therefore not talking about rape, that his evidence did not connote the presence of intention to rape.

He urged us to so hold and added that even if the evidence of PW3 could suggest a rape, it did not establish penetration and link it to the Appellant. He relied on the case of Ochiba Vs State (2011) LPELR-8245 (SC) to say that the failure of the prosecution to provide the result of the fluid, swapped from the prosecutrix’s vagina, goes to show that Appellant was not linked to the offence and was innocent. He submitted that the evidence of Pw1, PW2 and Pw3 failed to establish the offence of rape, and that none of them corroborated the evidence of the PW4 (the victim).

He relied on Ahmed Vs Nigerian Army (2016) LPELR-40826 (SC), where it was held: “It is long settled that in sexual offences that corroboration of the prosecutrix is desirable.

That is to say the evidence of the prosecution should be strengthened by other evidence implicating the accused person…” He also relied on Iko Vs State (2001) 14 NWLR (pt 732) 221 to say that: “Evidence in corroboration must be independent testimony, direct or circumstantial, which confirms in some material particular, not only that the accused has committed it.” Counsel said the medical report Exhibit FMC1 and the confessional statement Exhibit A1 and A2 lacked probative value and that the trial judge wrongly placed premium on them as corroborating the evidence of PW4.

He urged us to resolve the issue for Appellant, set aside the judgment, and discharge and acquit the Appellant. Responding, Counsel for Respondent, the learned Attorney-General of Jigawa State, Dr. Musa Aliyu, stated the three main ways of establishing commission of offence, namely: 1) By confessional statement of the accused; 2) By circumstantial evidence; and 3) By evidence of an eye witness. He relied on the cases of Okanlawon Vs State (2015) 17 NWLR (pt 1489) 445; Alufohai Vs State (2015) 3 NWLR (Pt 1445) 172 and Dele Vs State (2011) 1 NWLR (Pt 1229) 508.

He submitted that in establishing the commission of offence beyond reasonable doubt, the law does not require proof beyond any iota of doubt Eke Vs State (2011) ALL FWLR (Pt 566) 430; Abeke Vs State (2007) ALL FWLR (Pt 366) 644 and Paul Vs State (2015) ALL AWLR (Pt 778) 839. Counsel gave the meaning of rape as “forceful sexual intercourse with a girl or a woman without her consent or when by law she is incapable of giving consent.” (Posu & Anor Vs The State (2011) LPELR-1969 (SC). Counsel stated the essential ingredients of offence of rape, under Section 282 of the Penal Code, as follows: a.

That the accused had sexual intercourse with the prosecutrix (victim); b. The sexual intercourse was done without her consent, or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation, or when the victim is under the age of 14 years; c. That the prosecutrix is not his wife; d. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly, not caring whether the prosecutrix consented or not, and e. That there was penetration.

He relied on the case of Lucky Vs The State (2016) LPELR-40541 SC; Iko Vs State (2001) 14 NWLR (Pt 332) 195. In the instant case, Counsel said, the prosecution had established confession by the Appellant as well as evidence of the victim, corroborated, to establish the offence. He referred us to the evidence of PW1, PW2, PW3 and PW4 (victim).

He added that the extra-judicial statement of the appellant (Exhibit A2) had confirmed the act of sexual intercourse by Appellant with the prosecutrix – a 10-year-old child; that it is trite law, that a confessional statement, which is clear and positive, as in the instant case, is enough to sustain conviction. He relied on the case of Imoh Vs State (2016) LPELR – 47989 SC. Counsel asserted that the extra-judicial statement was properly before the Court and properly admitted, that the contents thereof were corroborated by the other pieces of evidence of PW2 and PW4.

He urged us to resolve the issue against Appellant and dismiss the appeal.

RESOLUTION OF THE ISSUE I think the issue distilled by the Appellant for the determination of this appeal is apt, but I shall modify it to read thus: Whether, upon careful consideration of the evidence on record, including the extra-judicial statement of the Appellant, the prosecution had established the offence of rape of the 10-year-old girl against the Appellant, as held by trial Court?

Counsel on both sides had stated what constitutes the ingredients of offence of rape and cited several authorities to support their submissions, particularly, the element of proof of penetration of the victim’s vagina by the assailant.

See the case of State Vs Masiga (2017) LPELR-43474 SC where it was held: “I have stated earlier that there is no doubt that in charge of rape, penetration must be proved…… On what prosecution must prove in charge of rape, this Court in Jegede Vs The State (2001) 14 NWLR (sic) (Pt 733) held that: “whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.” Per Bage, JSC.

In that case (State Vs Masiga, supra), My Lord Galinje, said: “For prosecution to succeed in proving the offence of rape, it must prove: 1. That the accused has sexual intercourse with the woman. 2. That the act was done in circumstances falling under the following: a. Against her will; b. Against her consent c. With her consent when her consent has been obtained by putting her in fear of death or of hurt d.

With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he another man, to whom she is or believes herself to be lawfully married; e. With or without her consent when she is under fourteen years of age or of unsound mind. 3. That there was penetration.

See Ogunbayo Vs State (2007) 8 NWLR (Pt 1035) 157; Upahar Vs State (2003) 6 NWLR (Pt 816) 230; State Vs Ojo (1980) 2 NCR 391; Iko Vs State (2001) 14 NWLR (Pt 732) 221.” Stating further, My Lord Galinje said: “The most essential ingredients of rape is penetration, however slight, penetration with or without emission, is sufficient, even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse.

See Iko Vs State (supra), Ogunbayo Vs State (supra).” In this case, at hand, the victim is a 10 year old girl, an unfortunate child on the street, hawking food, to earn a living (or sent out to hawk) at such tender age. By law, she cannot even give consent to engage in sexual activities, being under the age of 14 and so was incapable of consenting to any act of sexual intercourse, with anyone. See Section 282 of the Penal Code.

In the case ofNatsaha Vs State (2017) LPELR – 42359 (SC), the Supreme Court held: “It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the Code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC. Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.” Per Kereke-Ekun, JSC.

Counsel for the Appellant has argued, strenuously, that the Prosecution did not establish penetration of the victim (PW4) by the Appellant, that the evidence of the victim (PW4) who recounted how she was ravaged (raped) by Appellant needed corroboration, that there was no such corroboration and that the Medical Report (Exhibit FMC1) and the evidence of PW3 (Doctor) which the Court relied on to corroborate the evidence of PW4, lacked probative value. Of course, the evidence of the 10 year old victim was clear and cogent.

She said: “…I was hawking selling foodstuff when the defendant called me and offered to buy and he bought and directed me to take it to his room and I took it to his room, as I entered the room he followed me and he undress my rapper (sic) and he also removed his trouser (sic) and he had sex with me and gave me my money for the foodstuff and asked me to leave. As I was coming out from the room, the vigilante people hold me and asked me what happened and I told them what happened between me and the Defendant. So the vigilante people arrested the defendant.

From there we were taken to Police Station at Birnin Kudu and the following day was taken to the hospital. I was examined at hospital…” (See 10 of the Records of Appeal).

Though the narration by the PW4, did not suggest any overt force on her to extract the sexual act or struggle by her to resist it (it appeared to be familiar to her), the fact that the PW4 was only ten years old, brings her under the Protection of Law, that a child (girl) under 14 years of age, is incapable of consenting for sexual intercourse, and whoever takes undue advantage of her, or lures her into such act, violates her and rapes her.

See Natsaha Vs The State (2017) LPELR – 42359 (SC); and Ezigbo Vs State (2012) LPELR – 7855: “A man is said to commit rape, when he had sexual intercourse with a woman… with or without her consent, when she is under fourteen years of age or of unsound mind.” Per Onnoghen JSC (later CJN). Of course, the story of the PW4 was corroborated by PW2 and PW3 (Medical Report) and above all by the Appellant, himself, who admitted the act before the Vigilante (PW2), and also made a confessional statement to the Police on the offence – See Exhibits A1 and A2.

PW2 had said: “… We saw a girl called Faiza running out from the defendant house, we stopped her and asked her she said it was the accused that called her and had sexual intercourse with her, we were with the girl, when the defendant came out from his house and met us, with the girl standing before us. So we asked the defendant what happened between him and the girl.

He pleaded to us to forgive him… he said he had sexual intercourse with the girl, we told him we will not forgive him. (Page 5 of the Records of Appeal) The PW3, the Medical Doctor who examined the victim (PW4), a day after the sexual intercourse, said: “… I happened to be a medical officer, O & G Section when a child of about 10 years named Faiza Idris, was brought before me, that she was molested a day before she was brought. When we received her, she said that, for the past one year, one Nura was molesting her, repeatedly.

That each time she went to sale (sic) her food stuffs, he will give her N50 and molest her. And she also said few days later a friend to Nura, one Rabiu, also molested her and gave her money. And she said, a day before she was brought to the hospital, another beggar a friend to Nura and Rabiu, also molested her. And she said the beggar was caught that day and they were taken to the Police Station. So they now brought her to us for investigation… We examined her, every other examination was normal, when we looked at the virgina (sic) there is some fluid and the hymen was not normal.

So we directed for RVX and HIV test and pregnancy test and Viral Hepatitis test. So the hepatitis becomes positive. And the other tests were negative, so we swap the fluid from the vagina for examination, but the swap was not returned back to us to see the result. Later the Police came and requested for our report of investigation which we wrote and gave – Exhibit FMC1. See pages 8 and 9 of the Records of Appeal. The Medical Report (Exhibit FMC1) is published on pages 20 and 21 of the Records of Appeal.

It said (among other things): “… There was no history of per vaginum bleeding, no history of vaginal discharge, no trauma to the vulva. Not known Diabetic, sickle cell anemia. Other systemic symptoms not contributory o/e not in any obvious distress, not pale, afebrile, anicteric, acyanosed, nill pedal oedema.

CVS: PR= 106b/m regular full volume BP= 90/60 HS= 1,11 Chst – RR= 24cl, vesicular breath sound Abd – No abnormalities detected VE: Nivly Has become fluid around the virginal orifice, hymen breached Investigation result showed: RVS – Negative (Non-reactive) HBAG – Negative HCV – Positive Pregnancy test – Negative However, swab M/C/S Virginal Secretion – Not retrieved. Please accord her the necessary assistance.

Sgnd Obiako Prince Felix For: Medical Director.” Appellant’s Counsel had picked quarrel with the medical report, saying that the PW3 used the Word “molest” repeatedly, to describe what was done to the little girl, instead of the word rape. He indulged himself in the dictionary meaning of Molest, to explain away the rape accusation leveled against Appellant.

I think that submission was an attempt to ridicule and belittle a rather serious situation, as the context of use of the word “molest” by the Medical Doctor, certainly denoted sexual abuse of the minor, by her assailant. ​ As earlier stated, Appellant had admitted before PW2 and in his confessional statement, Exhibits A1 and A2 (Hausa and English versions), that he had sexual intercourse with the 10 year old girl. The said statement was admitted in evidence, without any objection, as Appellant’s Counsel, at the trial Court (Mrs. Louisa) had said: “We are not objecting.

But we are praying for the Court to put more weight to the discrepancies in the statement.” (Page 4 of the Records of Appeal) A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal.

See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held: “…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case.

All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s) of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible.

It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200) 627; Smart v State (2016) EJSC Vol.36)145; Egboghonome V The State (1993)7 NWLR (pt.306) 383; Oseni Vs The State (2012) 5 NWLR (pt.1293) 351.

It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1.

It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him.” See also the case of Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA), where this Court held: “Can Appellants, therefore, raise appeal against the admission of those documents, which they never challenged their admissibility at the Court below?

I think not. See the case of John & Anor Vs The State (2011) LPELR – 8152 (SC): “The contention that Exhibit 3 was inadmissible because it was not tendered by the maker is in the circumstance of no moment. Besides, when the said Exhibit 3 was about to be tendered, there was no objection by the learned Counsel for the defence… Having not objected to the admissibility of the confessional statement (Exhibit 3), this omissions translates to the fact that the 1st Appellant was comfortable with the admission and saw no reason to challenge its admissibility.

In a situation like this, the Court is at liberty to ascribe probative value to the document as succinctly put in the case of Alade Vs Olukade (1976) 2 SC 183…” In the case of Ajibade Vs State (2012) LPELR – 15531 (SC), the Supreme Court held: “Where a confessional statement is therefore admitted without any objection, the irresistible inference is that same was voluntarily and a Court can rightly convict on the basis of the admission contained therein.” Per Ogunbiyi JSC.

In his evidence in Court, Appellant admitted that Faiza (PW4) was in his house but said he bought her food and she left, but that when the vigilante accosted PW4, coming out of his house, he denied for fear of being beaten but he later admitted, upon being beaten!

Under cross-examination, he said: “When I said we, I mean me and one Rabiu that were taken to Police Station up to Court. Rabiu was also facing the same allegation of rape. The said Rabiu was not my friend; he was my in-law, because I married in their house… I am aware that PW4 was the prosecutrix in this case. I know Nura at Kangire. Nura runs away from Kangire because of this allegation.

On that fateful night, when Faiza entered my house, my wife was not at home… The offence was committed three years back it was Nura and Rabiu who were suspected to committing the offence.” See Pages 12 and 13 of the Records In his confessional statement (Exhibit A1), Appellant said: “… That he could remember… that he had carnal knowledge with Faiza Idris “F” in my room, when my wife went to nearby quarters, whereof he gave her the sum of Fifty Naira N50.00. It was one Rabiu Usman that brought her to my house.

On Wednesday, being 24/10/2017 2030 hrs, I saw the victim in one shop where I used… she came. We left to my house. Inside my room I told her that I wanted to have sex with you and she agreed. I ordered her to pull off her cloth after all I had sex/raped her and I released sperms inside her vagina. When coming out of my house one Sagiru Yusuf “M”, a Vigilante group member, arrested us…” See Page 16 of the Records of Appeal.

The above statement was translated from Exhibit A2 (the Hausa Version) and though rendered in reported speech in some portions, it no doubt revealed what transpired at the recording of the statement. But since Appellant did not object to the tendering of the statement and even gave evidence to support it, in Court, the trial Court was right, in my opinion, to rely on it, to corroborate the evidence of the Victim (PW4).

What is very sad about this case, is the obvious negative effect of sending out little children on the streets to hawk, or allowing them, especially the girl child, to hawk, who most often, are exposed to crimes, abuses and prostitution, at such a tender age! From the account of PW4, she appeared familiar with sexual intercourse, at such tender age, and was therefore vulnerable to be preyed upon by evil men, in the course of hawking! Because of her tender age, consensual sex was ruled out, even where she appeared to have yielded to the allurement of the Appellant.

I cannot therefore see any merit in this appeal and so resolve the issue against Appellant and dismiss the appeal. CROSS-APPEAL The Respondent had filed a Cross-Appeal in this matter, as per the Notice of Cross-Appeal, filed on 11/2/2021. See the Supplementary Records of Appeal, transmitted to this Court on 12/2/2021. The Cross-Appellant filed brief of argument on 2/9/2021, which was deemed duly filed on 7/10/21.

It distilled a lone issue for determination, as follows: “Whether the learned trial Judge has discretion or power to alter a mandatory sentence, stated in the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014 of Jigawa State, which came into force on the 29th December, 2014? The Cross-Respondent filed his brief on 22/11/2021 and conceded to the Cross-Appeal (where this Court found no merit in the main Appeal).

In Paragraph 3.3 of the Cross-Respondent’s brief, the Counsel said: “… I submit that if your Lordships do not find merit in the main appeal, then the mandatory sentence has to be imposed and therewith allow this Cross-Appeal. However, if the main appeal is allowed, then your Lordships are urged, with the greatest respect, to summarily dismiss this Cross-Appeal…” See Pages 3 – 4 of the Cross-Respondent’s Brief.

I commend the learned Counsel for Cross-Respondent, for that mature spirit of demonstration of the knowledge of law, therefore not being unnecessarily combative over a straight forward prescription of the law.

By the provision of Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, Section 283 of the Penal Code Law was deleted, and replaced with the following provision: “Notwithstanding the provision of any other law to the contrary, but subject to Section 285B, whoever commits rape shall be punished for life or for a term of not less than ten years and, where the rape committed falls under paragraph (e) of Section 282(1), shall be punished with imprisonment for life.” Of course, Section 282(1), (e) of the Penal Code is to the effect that: “A man is said to commit rape when, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances… (e) with or without her consent, when she is under fourteen years of age or of unsound mind.” Counsel had submitted that, Appellant having been convicted for raping the 10 year old girl, the trial Court had no discretion to exercise in the matter and should have imposed the life jail prescribed by the law on the Appellant.

He relied on the case of Muazu Vs State (supra) and Lawrence Vs FRN (2018) LPELR – 44510 CA. I see merit in this Cross-Appeal, even as the Cross-Respondent’s Counsel, conceded. The trial Court had no room to exercise any discretion in the circumstance, other than impose the mandatory sentence, stated by the law – Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, which gives life imprisonment for one who rapes or has carnal knowledge of a girl below 14 years of age or of unsound mind.

See the case of Lucky Vs State (2016) LPELR – 40541 (SC), where it was held: “Once the Court convicts an accused person for offence of rape, as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.”

I therefore allow the Cross-Appeal and set aside the sentence of 21 years imprisonment, imposed by the trial Court on Appellant, and in its place, impose the mandatory provision of the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, that is, life imprisonment. Appellant shall therefore serve life imprisonment for raping the 10 year old girl – PW4. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Ita Mbaba, JCA and I am in complete agreement with the reasoning and conclusions reached.

The Respondent/Cross-Appellant’s Cross-Appeal challenged the sentence of the term of imprisonment awarded by the trial Court on the ground that by the Provision of Penal Code (Miscellaneous Amendment) Law No. 9 of 2014 of Jigawa State, Section 283 of the Penal Code was amended and replaced with the following: “Notwithstanding the provisions of any other law to the contrary, but subject to Section 285 B, whoever commits rape shall be punished for life or for a term of not less than ten years and where the rape committed falls under paragraph (e) of Section 285(1), shall be punished with imprisonment for life.” ​It can be seen that the above provision created two different types of sentences of a term of not less than 10 years and also life imprisonment.

However, where the offence committed falls under paragraph (e) of Section 282 or on the other hand where the prosecutrix is under 14 years at the time of the commission of the offence, then the convict shall be punished for life imprisonment. There are the two limbs regarding the sentence of a convict for the offence of rape. The first limb may admit an exercise of discretion by a Court, whereas if the prosecutrix is under the age of 14 years, the second limb becomes activated and the mandatory penalty is life imprisonment. This is so because of the terminology used in the above provision.

Though, there are instances, when, depending on the terminology used in prescribing the punishment for an offence, a trial Court possesses some discretion in determining the sentence to impose on a convicted person, and this is especially so where a statute provides a maximum sentence, as opposed to a mandatory one for an offence. See Nigerian Army Vs Iyela (2008) 18 NWLR (Pt 1118) 115; Tanko Vs State (2009) 4 NWLR (Pt 1131) 430 and Amoshima Vs State (2011) 4 NWLR (Pt 1268) 530.

The penalty imposed by the section where the offence is committed against a girl below the age of 14 years is life imprisonment and from the wordings of the provision, it is a mandatory sentence as opposed to the maximum sentence for conviction on a rape of a woman. In view of the fact that the penalty for rape of a minor under 14 years is life imprisonment, the Court has no option than to impose the penalty once a conviction for rape is had. The reason of my discourse here, is that I noticed the attitudes and reluctance of Courts in the state to impose the mandatory penalty after conviction.

It cannot be an oversight but deliberate act with due respect and that is not helping the course of justice. The Court cannot by their act be amending the provision of Section 283 of the Penal code (as amended) by imposing a penalty different from the penalty imposed by the section. This type of attitude has been deprecated by the Supreme Court in Lucky Vs State (2016) LPELR-40541 AT 39 where Ngwuta, JSC (of blessed memory) held thus:

“The sentence imposed by the trial Court is not only a contradiction in terms of the Court’s stated intention to reduce jurisdiction of the offences of rape and defilement, but a contemptuous and contumacious departure or derogation from, as well as a violation of the provisions of Section 358 of the Criminal Code (supra) under which the appellant was convicted… Once the Court convicts an accused person for the offence of rape as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.” See Bashir Vs Kano State (2016) LPELR-41561; Muazu Vs State (2018) LPELR-46768 and State Vs Ali (2020) LPELR-50039.

It is therefore mandatory for the trial Court to pass the sentence in accordance with the law under which it convicted the accused person. It is for the above and fuller reasons advanced in the lead judgment of my learned brother, I too dismiss the appeal and allow the Cross-Appeal. I also abide by all of the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ita G. Mbaba, JCA in this appeal. I am in total agreement with my learned brother that the appeal is unmeritorious. The appeal is also allowed by me. I abide by the consequential orders therein.

Judgment

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned as 4th defendant along with 5 other defendants before the High Court of Ogun State in a five count Charge for the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

At the end of the trial, the Appellant was convicted of conspiracy to commit armed robbery and armed robbery as charged in counts 1, 2 and 3 by the trial Court and sentenced to death by hanging. The judgment of the trial Court delivered on 24th August, 2020 is at pages 85–133 of the Record of Appeal. Dissatisfied with the said judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on 11th September, 2020. The Notice of Appeal is at pages 136–137 of the Record of Appeal.

However, the extant Notice of Appeal is the Amended Notice of Appeal filed on 30th March, 2021 and deemed properly filed by this Court on 2nd of November, 2021. The Record of Appeal was duly transmitted to this Court on the 27th of October, 2020. The Appellant’s Brief of Argument which was filed on the 30th of March, 2021 was similarly deemed properly filed on the 2nd of November, 2021. ​The record of this Court shows that the Respondent who was served with the Appellant’s Brief of Argument since the 1st of April, 2021 did not file any Brief of Argument in response to the appeal.

Again, on the 20th of January, 2022 when the appeal came up for hearing, the Respondent who was duly served with a hard copy of hearing notice on the 11th of January, 2022, through the Office of the Hon. Attorney-General of Ogun State was absent.

The learned Counsel for the Appellant, who had earlier filed an application under the old Court of Appeal Rules, 2016 praying the Court to hear the appeal on the Appellant’s Brief alone, withdrew the application and urged the Court to invoke its powers under the new Court of Appeal Rules, 2021 and proceed to hear the appeal on the Appellant’s Brief alone. Thereupon, this Court invoked Order 19, Rule 10(3) of the new Court of Appeal Rules, 2021 and proceeded to hear the appeal on the Appellant’s Brief of Argument alone. In the Appellant’s Brief of Argument adopted by R. U.

Ezeani Esq, the following four issues were distilled for determination: 1. Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? (Ground 14) 2. Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? (Grounds 2, 6 & 16) 3. Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged? (Grounds 1, 3, 4, 5, 9, 10, 11, 12, 15 & 17) 4.

Was the alibi raised by the Appellant investigated or considered by the learned trial Judge? (Grounds 7, 8 & 13). Since there is no Respondent’s brief, I shall decide the appeal based on the above four issues raised by the Appellant.

ISSUE ONE: Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? ​SUBMISSIONS OF THE APPELLANT ON ISSUE 1: Learned Counsel for the Appellant had submitted that Count 1 of the Information charged the Appellant with the offence of conspiracy to commit armed robbery punishable under S. 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act. He argued that the Act did not define the offence of conspiracy but the Appellant was convicted nevertheless.

He submitted that the only provision of the Act that refers to or mentions conspiracy is Section 6(b) of the Robbery & Firearms Act. He further stated that the ingredients of the offence are thus unknown and that the Constitution prohibits conviction for an offence not defined in a written law. He cited Section 36(12) of the 1999 Constitution as amended.

He stated that the failure to define conspiracy or ‘to conspire’ may be contrasted with the treatment of the offence of armed robbery which is well and clearly defined in the said Act under Sections 1 and 11 of the Robbery and Firearms (Special Provisions) Act. In concluding the arguments on this issue, Counsel relied on the case of HARUNA v THE STATE (1972) 8–9 SC 174 at 200–201, wherein the definition of conspiracy under the English common law was adopted.

He contended that since Section 36(12) of the Constitution forbids the trial of any person for an offence not defined in a written law and Section 1(1), (3) of the same Constitution makes null and void any law which is contrary to the Constitution, this Court should hold the provision purporting to create the offence of conspiracy to commit armed robbery as void and set aside the conviction of the Appellant and acquit him of the said offence. He relied on AOKO v FAGBEMI (1961) All NLR 400. He urged the Court to resolve this issue in favour of the Appellant.

RESOLUTION OF ISSUE 1: The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN).

Section 36(12) of the CFRN relied upon by the Appellant provides: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that: “It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality.

It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).” ​In essence, what Section 36(12) of CFRN stipulates is that an offence is only an offence if it is so provided in a written law and its penalty also so prescribed, and no one shall be convicted of an offence which is not provided for and its penalty not prescribed in a written law.

By the established judicial authorities, the requirement for the legal provision of an offence in a written law before a person can be tried and convicted for it, will be generally satisfied where the act or omission which constitutes the offence is made an offence and a penalty for its commission or omission is provided in a written law. It is however pertinent to point out that ordinary English words are used in stating the nomenclature of the act or omission which is made an offence.

For instance, the word “conspiracy” is actually a noun for the verb “conspire” which means to agree to do something or forbear from doing something. It is, in essence, an agreement to undertake a course of action or to refrain from acting. Thus, in criminal law jurisprudence, it can only mean an agreement to commit a crime (whether by act or by omission).

In STATE v YUSUF & ANOR (2006) LPELR-11802(CA), this Court, per Ngwuta, JCA (as he then was) had observed that even as the offence of conspiracy had been provided for in the Criminal Code, neither the Criminal Code nor the Criminal Procedure Law, has defined conspiracy, and that in the case of MAJEKODUNMI v R (1952) 14 WACA 64, the West African Court of Appeal had to apply the definition of conspiracy made by Willes, J. in Mulcahy v.

R (1868) L.R. 3 H.L. 306 at 317, thus: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable.

When two agree to carry it into effect, the very plot is an act in itself … punishable if for a criminal object or for the use of criminal means.” ​Although the Criminal Code has only criminalized conspiracy in Section 516 but has failed to define same, the Penal Code has in Section 96(1) provided that “when two or more individuals agree to commit or cause to be committed (a) an unlawful act, or (b) a lawful act through an unlawful means; such an arrangement is referred to as a criminal conspiracy.

Thus, contrary to the assertion of the learned Counsel for the Appellant in paragraph 4.6 of the Appellant’s Brief of Argument that there is no definition of conspiracy in any written law in Nigeria, the word “criminal conspiracy” has been defined in the Penal Code Law as shown above.

Now, in KAZA v THE STATE (2008) LPELR-1683(SC), the Supreme Court, per Tobi, JSC had while considering the definition of conspiracy, referred to Black’s Law Dictionary and held as follows: Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.

See Black’s Law Dictionary (Sixth edition) page 309. This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved. While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act.

While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds.

The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.” In essence, the offence of conspiracy in our criminal jurisprudence has come to be legally defined as an agreement by two or more persons to do an unlawful act, or a lawful act by unlawful means: ADEPOJU v STATE (2018) LPELR-44355(SC), per Eko, JSC at pages 7–8, para. E; SMART v STATE (2016) LPELR-40827(SC), per 27–28, para. F; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Peter-Odili, JSC at pages 28–29, para.

G; and WISDOM & ANOR v STATE (2013) LPELR-21451(CA), per Dongban-Mensem, JCA (as he then was, now PCA), at pages 20–21, paras. C. On the specific offence of conspiracy to commit armed robbery for which the Appellant was convicted, the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria has provided in Sections 1–5 the offences and penalties for robbery, attempted robbery, illegal possession of firearms, sheltering and treating armed robber and receiving property obtained by means of any of the offences created under the Act.

The Act then proceeds to provide in Section 6(a), (b) and (c), the offences and punishment for aiding, abetting or procuring the commission of any of those offences; conspiring to commit any of those offences; or supplying, procuring or providing any person with firearms for use in committing any of those offences.

Specifically, paragraph (b) of Section 6 states that: Any person who – (a) … (b) conspires with any person to commit such an offence; or (c) … whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

It is therefore clearly discernible from the above provision and the judicial authorities cited supra, that the offence of conspiracy to commit armed robbery has been duly provided for in Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004. As I said earlier, all that is required to satisfy the stipulation in Section 36(12) of the Constitution which is relied upon by the Appellant is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The literal definition of the nomenclature of the act or omission which was made an offence may not necessarily be provided in the law, and that failure, in my considered view, does not make or render the offence created under the law inconsistent with the provision of Section 36(12) of the Constitution. ​Given the trite legal position on the definition of conspiracy as contained in numerous judicial decisions of the appellate Courts, some of which I have cited above, I find the contention of the Appellant under this issue grossly misconceived; one which did not take cognizance of the state of the law relating to the offence of conspiracy.

I therefore, have no hesitation in resolving this issue against the Appellant. It is hereby so resolved. ISSUE 2: Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? SUBMISSIONS OF THE APPELLANT ON ISSUE 2: On this issue, learned Counsel for the Appellant submitted that the purported confessional statement made by the Appellant in Exhibit G1 is absolutely inadmissible.

Relying on the cases of ADELANI v STATE (2018) 5 NWLR (Pt. 1611) SC 26; and POPOOLA v STATE (2018) 10 NWLR (Pt. 1628) SC 485, where it was held that when an extra judicial statement is obtained with the aid of an interpreter, he must subscribe his name and signature on the statement and must testify at the trial before the statement can be admitted in evidence. He also cited Section 17(3) & (4) of the Administration of Criminal Justice Act, 2015 (ACJA), to the effect that the interpreter must write his name and sign the statement.

He pointed out that Exhibit G1, the Appellant’s statement was made in Yoruba and recorded in English, but the interpreter did not write his name and sign same as required. Counsel submitted that Sections 1(2) and 3 of ACJA enjoin strict compliance with its provisions. He further argued that going by the answer PW1 gave during cross-examination, he did not append his name or sign the statement. He added that the fact that I.P.O. was written on it as referring to PW1, does not aid the Respondent.

He submitted that by virtue of Sections 5, 129 & 130 of Evidence Act 2011, evidence is not allowed in a criminal trial to explain the meaning of an abbreviation in a document. He pointed out that the interpreter did not testify at the trial and as such Exhibit G1, the purported confessional statement of the Appellant is not admissible. He argued that being absolutely inadmissible hearsay evidence, it is immaterial that the Appellant’s Counsel at the trial did not object to the documents being tendered, since such evidence is absolutely prohibited by statute.

He relied on POPOOLA v STATE (supra). ​Learned Counsel submitted that the Appellant and the other co-accused persons have denied making the statements which raised the questions of fact as to whether each of them had made the statements in Exhibits G1, D, E & F. He submitted that the Respondent was bound to prove that Exhibit G1 was made by Appellant. He relied on Section 93(1) of the Evidence Act, 2011 and Section 18 of the Interpretation Act, 2004.

The Respondent was bound to establish beyond reasonable doubt, that the mark or thumb impression on Exhibit G1 purported to be that of the Appellant, was indeed his. However, the Respondent (prosecution) failed to prove that the thumb print on Exhibit G1 was made by the Appellant other than rely on the viva voce testimony of PW1 which is unreliable. He highlighted other facts that make Exhibit G1 unreliable and not credible.

These are; (1) As unsigned extrajudicial statement, Exhibit G1 is worthless. (2) The learned trial Judge relied on evidence of co-accused to find Exhibit G1 credible. (3) Exhibit G1 is inconsistent with other facts ascertained and proved. (4) It was not proved that the Appellant had opportunity to commit the crime charged. RESOLUTION OF ISSUE 2: This issue challenges the admission and reliance by the trial Court of Exhibits E, F and G1 on the ground that the statements were not signed.

With regard to the said Exhibits E, F & G1, it is pertinent to observe that before the trial Court, Exhibits E and E1; F and F1; and G1 and G2 were confessional statements made by the 2nd, 3rd and 4th Defendants (who is the Appellant herein), respectively, which were tendered by the Prosecution and admitted by the trial Court. Specifically, Exhibit E is the confessional statement of the 2nd Defendant (Festus Edegwa), while Exhibit E1 is an attestation for the said confessional statement in Exhibit E.

Similarly, Exhibit F is the confessional statement of the 3rd Defendant (Owolabi Idowu), while Exhibit F1 is its attestation.

As for the 4th Defendant who is the Appellant herein, he made two statements, first at the Ogijo Police Station which was admitted as Exhibit G, and second, which is the confessional statement he made at the Special Anti-Robbery Squad (SARS), Ogun State, which was admitted as Exhibit G1, while its attestation is Exhibit G2. ​The Record of Appeal shows at page 37 that when these confessional statements of the 2nd, 3rd and 4th Defendants as well as their respective attestations were tendered by the Prosecution through PW1 (Cpl.

Jamiu Salawudeen), the learned Counsel for the 2nd, 3rd and 4th Defendants did not object to the admissibility of the confessional statements. They only indicated that the 2nd, 3rd and 4th Defendants have denied making the said statements. The 4th Defendant only admitted making the non-confessional statement in Exhibit G which he made at Ojigo Police Station.

It is therefore clear from the printed record that at the point of the tendering the confessional statements in Exhibits E, F and G1 as well as their respective attestations in E1, F1 and G2, the learned Counsel for the 2nd, 3rd and 4th Defendants never raised any objection as to the admissibility of the said statements, other than denying that the said Defendants have made the statements. However, as rightly observed by the learned trial Judge at pages 117–118 of the record, the fact that a defendant has denied making a confessional statement does not render same inadmissible.

See: HARUNA v A.G. FEDERATION (2012) LPELR-7821(SC), per Galadima, JSC at page 16, para. A; IBRAHIM BATURE v THE STATE (1994) LPELR-760(SC), per Onu, JSC at pages 20–21, para. D; OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 22–23, para. F; and C.O.P. v ALOZIE (2017) LPELR-41983(SC), per Nweze, JSC at page 19, para. A. I am conscious of the fact that the Appellant has made the contention that the statements should not have been admitted and relied upon because according to him, they are not signed.

As it relates to the admissibility of the documents, I have already pointed out that the 2nd and 3rd Defendants and the 4th Defendant (Appellant) raised no objection to the admissibility of the said confessional statements tendered and admitted as Exhibits E & E1, F & F1 and G1 and G2 by the trial Court.

Hence, they made no protest that the said statements were not signed and there was no pronouncement or decision of the trial Court on that issue. ​ Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E.

Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence. This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that: “Let me first take the issue of signing a document. In Ojo v.

Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v. Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed.

It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.” See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A.

The question then is whether the said confessional statements of the 2nd, 3rd and 4th Defendants admitted by the trial Court are unsigned and therefore inadmissible in law. As earlier shown above, the confessional statements admitted as Exhibits E, F and G1 were actually admitted together with their attestations which were admitted as Exhibits E1, F1 and G2, respectively.

A look at the confessional statements in Exhibits E, F and G1 shows as follows: Exhibit E: Exhibit E, which is the confessional statement of the 2nd Defendant Festus Edegwa, was recorded in English language and it was actually signed by the 2nd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 5th June, 2017 and stated to be taken between 3:30 pm to 5:20 pm.

Exhibit E1: However, Exhibit E1 which is titled ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, shows that the 2nd Defendant has endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, read over to him and that he signed same. After the 2nd Defendant signed same, the attestation was then endorsed by Cpl. Jamiu Salaudeen as the Interpreter and dated the 5th of June, 2017. Exhibit F: Exhibit F, is the confessional statement of the 3rd Defendant Owolabi Idowu.

It was recorded in English language and translated to the 3rd Defendant in Yoruba language. The statement was also signed by the 3rd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 12th June, 2017.

Exhibit F1: However, in Exhibit F1 which is the ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, it shows that the 3rd Defendant has also endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the 3rd Defendant signed the attestation, it was then endorsed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated.

Exhibit G1: Exhibit G1, which is the confessional statement of the 4th Defendant Idowu Mathew, who is the Appellant herein, shows that the Appellant was cautioned in Yoruba language and his statement was recorded in English language and interpreted to him in Yoruba language. The statement was thumb-printed by the Appellant both at the cautionary column and at the end of the statement and dated 4th April, 2017. At the column for endorsement by the recorder/intepreter of the statement the letters I.P.O. were written and dated 4th April, 2017.

Exhibit G2: In Exhibit G2 however, which is titled: ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, that the Appellant (4th Defendant) has endorsed (thumb-printed) that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the Appellant (4th Defendant) signed same, the attestation was then endorsed/signed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated the 4th of April, 2017.

As stated earlier, the record of proceedings of the trial Court contained at page 37 of the printed record of this appeal shows that the confessional statements of the 2nd, 3rd and the Appellant (who is the 4th Defendants) which were admitted as Exhibits E, F and G1, were tendered with their respective attestation forms for confessional statements (Exhibits E1, F1 and G2), which, as also shown above, were duly signed/endorsed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant) and duly signed by PW1, Cpl. Jamiu Salaudeen.

While giving his evidence and tendering these confessional statements, PW1 had stated that he was the I.P.O. who investigated the case and recorded the said confessional statements of the 2nd, 3rd and 4th Defendants and had executed each of the attestation forms together with the said Defendants. ​From the forgoing therefore, it is evident that the argument of the learned Counsel for the Appellant that the confessional statements of the 2nd, 3rd and 4th Defendants in Exhibits E, F and G1 were not signed by the recorder/interpreter is incorrect, in that PW1, the Investigating Police Officer, Cpl.

Jamiu Salawudeen who recorded/interpreted those statements had not only duly signed the Confessional Statement Attestation Forms tendered with those statements they were also duly signed by the 2nd, 3rd and 4th Defendants, and he had given evidence in Court as to how he recorded the said statements of the 2nd, 3rd and 4th Defendants.

Interestingly, and not surprisingly, the learned Counsel for the Appellant has obscured the fact that the each of those confessional statements in Exhibits E, F and G1 was tendered with its Confessional Statement Attestation Form duly signed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant), respectively and duly signed/endorsed by PW1, Cpl. Jamiu Salaudeen, as the recorder/interpreter. It is therefore clearly evident that contrary to the contention of the Appellant, the confessional statements in Exhibits E, F and G1 were duly signed.

I so find and hold. ​Since it is evident from Exhibits E, E1, F, F1 and G1 and G2 that the confessional statements of the 2nd and 3rd Defendants and the 4th Defendant (Appellant) were duly signed, I hold that the said statements (including Exhibit G1, the Appellant’s confessional statement) were properly admitted and acted upon by the trial Court. I thus resolve issue 2 against the Appellant. ISSUE 3: Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged?

SUBMISSIONS OF THE APPELLANT ON ISSUE 3: It was submitted on behalf of the Appellant that the Appellant did not adopt Exhibits D, E & F, contrary to what the learned trial Judge held. It was pointed out that the learned trial Judge had held that the Appellant adopted the incriminating facts stated against him by his co-accused in their purported statements in Exhibits D, E & F. But the learned Judge failed to realize that the matter of adoption of evidence of co-accused by the Appellant was a matter exclusively governed by the Evidence Act.

It was further argued that by virtue of Sections 29(4) & 199 of the Evidence Act, 2011, the Court should not have considered the evidence of co-accused against the Appellant unless the confession was made in his presence and he adopted it by words or conduct, while the latter Section allows incriminating evidence of an accomplice to be considered against an accused person; it provides that a person tried jointly with the accused, i.e. his co-accused must not be considered as an accomplice for the purposes of the Section.

It was further submitted that the Appellant is not guilty as found by the trial Judge for the following reasons: (a) the items tendered in evidence as stolen items were not proved to belong to the alleged victims of the armed robbery, i.e. PW2 and PW3; (b) there are material contradictions in the evidence of Prosecution witnesses and their evidence was unreliable; and (c) the learned trial Judge misdirected himself on the evidence. It was argued that there were contradictions in the testimonies of PW1 and between the testimonies of PW2 and PW3.

It was similarly argued that the evidence and extrajudicial statement of PW4 were also contradictory and the learned trial Judge believed and relied solely on the testimony of PW1. Reference was made to page 118, lines 17–18 and 25–27 of the Record of Appeal. As for PW2 and PW3, it was argued that the totality of PW2’s evidence showed that he knew the Appellant prior to the armed robbery and yet could not identify the Appellant as one of the armed robbers, while PW3 identified the Appellant as one of the robbers.

And while PW4 testified that PW2 was there when Sanni and the Appellant were arrested and that Sanni told the Police it was one Uche who sold the phone to him and that the Appellant got arrested at Uche’s house, PW2 and PW3 stated that the Appellant is neither Uche nor the one who sold the phone to Sanni, and that the house where the Appellant was arrested was not the Appellant’s house but Uche’s. He further argued that the above contradictions are material contradictions which relate to the ingredients of the offences charged.

He cited ORISA v THE STATE (2018) 11 NWLR (Pt. 163) SC. 453, where the Court held that where a witness made an extra-judicial statement to the police which is inconsistent on a material point with his testimony in Court, the testimony is to be regarded as unreliable while the extra judicial statement is not evidence on which a Court can act. RESOLUTION OF ISSUE 3: It is settled law that a confessional statement of an accused person is only evidence against him. It cannot be evidence against other accused person(s).

In other words, the confessional statement of an accused person implicating another accused person is only deemed to be relevant for the person who made it. It cannot be used as evidence against that other accused person unless he adopts it. See: Section 29(4) of the Evidence Act, 2011 and the cases of GBADAMOSI & ANOR v STATE (1992) LPELR-1313(SC), per Ogundare, JSC at page 29, para. D; IBRAHIM v STATE (2014) LPELR-23291(CA), per Galinje, JCA at pages 26–27, para. D; EMMANUEL v STATE (2015) LPELR-41676(CA), per Gumel, JCA at page 33 para.

C; and AHMED v KANO STATE (2017) LPELR-43224(CA), per Daniel-Kalio, JCA at pages 14–15, para. C. ​At page 119 of the printed Record of Appeal, the learned trial Judge started by restating this trite position when he held that: “It is the evergreen position of the law that a confessional statement made by one accused person is only evidence against him and not constitute evidence against a co-accused except he adopted it.

See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, See aslo YUSUF & ANOR VS STATE (2019) LPELR-46945 SC.” However, after restating the above trite principle of law as stated in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, the learned trial Judge proceeded to hold as follows: “In this instant case I wish to bring out a distinction which the facts in this case reveal which contain a variant on the facts from the decisions cited above.

While the 1st, 2nd and 4th Defendants in Exhibit E, G1 and F gave evidence incriminating each other as part of those who robbed the PW2 and PW3 while armed with offensive weapon as charged they all now including the 3rd Defendant in each of those statements credited to them confessed each to being participis criminis in committing the armed robbery on PW2 and PW3 thus in this case their participation in the robbery in those statements credited to them as stated by their other co-accused as they themselves confessed in their statements to the police as committing the armed robbery charged.

Thus in this case, as it were it is not only a matter of giving incriminating facts against B and C but B and C also confessing to commit the offences they are incriminated of being a part of.

Thus I find that those statements Exhibit E, F and G1 if proved against each of them in (sic) good evidence against each of the 2nd, 3rd and 4th Defendants who are charged on counts 2 and 3 of the Amended Charged (sic).” There is no doubt that the above holding of the learned trial Judge which attempts to use the incriminating evidence contained in the confessional statements of each of the accused persons against their co-accused, runs counter to the trite principle in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, which he had earlier cited.

The point must be made that the import of this trite principle of law is such that even if there are a hundred accused persons in a joint trial and each of them makes a confessional statement incriminating the others, such incriminating evidence cannot be used against those others unless each of them adopts same. A confession is therefore, only relevant evidence for the accused person who made it and same will be assessed independent of whatever incriminating evidence may exist against him in the confessions of other co-accused persons.

As rightly observed by the learned Counsel for the Appellant, before incriminating evidence in the confessions of the other accused persons can be used against the Appellant it must have been made in the presence of the Appellant and the Appellant must have adopted it. Section 29(4) of the Evidence Act, 2011 is very explicit on this.

The Section expressly provides: Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct. (underlining mine for emphasis). ​In this case, there was no evidence led before the trial Court that each of the 2nd, 3rd and 4th Defendants made the confessional statements in Exhibits E, F and G1, respectively in the presence of one another and that each of them adopted the incriminating evidence against them contained in the confessional statements of their co-defendants.

In the absence of such evidence, the attempt by the learned trial Judge to use the incriminating evidence in the confessional statement of each of the Defendants as corroborating evidence of the confessional statement of the other Defendants clearly runs counter to the established legal principle expressly provided in Section 29(4) of the Evidence Act, 2011 and reiterated in GBADAMOSI & ANOR v STATE (supra); IBRAHIM v STATE (supra); as well as OZAKI & ANOR VS STATE (supra); and YUSUF & ANOR VS STATE (supra), referred to by the learned trial Judge.

His holding is therefore clearly perverse and I so hold.

The issue then is whether apart from the incriminating evidence in the other confessional statements which the learned trial Judge wrongly regarded as corroborating the Appellant’s confessional statement in Exhibit G1, there are other evidence upon which the trial Court could find the Appellant guilty as charged. ​The essential argument of the Appellant is that since the Appellant had denied making the confessional statement in Exhibit G1, the learned trial Judge failed to resolve whether the Appellant actually made the statement before applying the rule relating to weight as stated in OGUNDIPE v QUEEN (supra), and thus had occasioned miscarriage of justice.

It is settled law that when a confessional statement which is admitted in evidence is retracted as was done by the Appellant in this case, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it.

In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: R v SKYES (1913) 1 Cr. App. R. 233; ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para.

A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40 – 41, para. G; AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A; and OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 24–25, para. E.

A look at the Record of Appeal shows that apart from the finding of the trial Court that the confessional statements credited to the 2nd, 3rd and 4th Defendants have corroborated each other which I have found to be perverse to the established principle of law, the learned trial Judge had indeed considered how the evidence of the prosecution witnesses had corroborated the confessional statements of the Defendants, including Exhibit G1 credited to the Appellant.

Specifically, the learned trial Judge held at pages 121–123 of the Record as follows: “A look at the contents of the confessional statements credited to the 2nd, 3rd and 4th Defendants Exhibit E, F and G1 reveal certain facts which were also the highlights of the evidence of the PW2 and PW3. The 3rd Defendant in Exhibit F stated that the house where they i.e. himself and other robbers robbed is at Eyita Zone III and they stole his Lexus 330 Jeep. The PW2 and PW3 testified unequivocally that PW3’s Lexus Jeep was stolen on the night of the incident of the armed robbery on them.

PW1 testified that the Lexus Jeep was traced to Cross River State only to discover one George a car dealer had sold it in Cameroon. In fact, George is at large; his brother was charged before the Magistrate Court over the matter. PW1s evidence was also not shaken under cross-examination as to how he arrested the 2nd, 3rd and 4th Defendants. His evidence was not shaken that it was a girlfriend of the 2nd Defendant who assisted in getting him arrested.

The evidence of PW1 was not also contradicted that PW1 got 2nd Defendant arrested when his phone number was tracked and his girlfriend’s number was gotten… The 4th Defendant in Exhibit G denied committing the armed robbery charge however in Exhibit G1 he gave the number of persons who went to rob PW3 as six and they went to rob in PW3’s house with a gun. The PW2 and PW3 also led evidence the number of robbers who came to rob them as five or six. The PW2 and PW3 also led evidence the robbery was carried out with a gun, this the 2nd Defendant has confirmed.

Learned Counsel for the 4th Defendant had suggested that 4th Defendant’s statement in Exhibit G was exculpatory, hence Exhibit G1 credited to him which is a confessional statement is suspect as to the 4th Defendant’s confession of the armed robbery. I wish to state that the facts in Exhibit G1 seem to tally with PW2 and PW3’s testimony as to how many people robbed PW3 and the fact that the robbers were armed.

I find that the evidence of PW1, PW2 and PW3 serve as corroboration for Exhibits E, F and G1.” It is therefore clear from the above holding of the learned trial Judge that he had duly evaluated the confession of the Appellant in Exhibit G1 and found the evidence of PW2 and PW3 to have corroborated same. Thus contrary to the submission of the Appellant under this issue, the conviction of the Appellant was not solely based on the trial Court’s finding that the confessions of the 2nd, 3rd and 4th Defendants corroborate each other.

It is consequent upon this, that I resolve this issue against the Appellant and hold that, even as the trial Court’s finding that the Appellant had adopted the confessional statements of his co-accused was perverse, it was not the sole reason upon which the Appellant was found guilty of the offences charged, as his confessional statement in Exhibit G1 was found to have been credible, having been corroborated by other evidence of the Prosecution witnesses. ISSUE 4: Was the alibi raised by the Appellant investigated or considered by the learned trial Judge?

SUBMISSIONS OF THE APPELLANT ON ISSUE 4: The Appellant began by stating that the Court of Appeal has the duty to examine the grounds for the conclusions and inferences of the trial Court. He cited AGBANYI v THE STATE (1995) 1 NWLR (Pt. 369) 1 at 22 B–G to back up the above point.

In the course of the learned trial Judge’s judgment, he held that: “All of the above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the Armed Robbery Charge, E. g Exhibit G1 and the evidence of PW 1” the Appellant stated that there was no basis for the learned trial Judge to have found the Appellant to be an untruthful witness; as there was nothing contradictory of Appellant’s oral testimony (where he did not deny knowing Uche) from Exhibit G. Both are reconcilable.

In Exhibit G as well, he did not deny knowing Uche”. He continued by stating that Appellant’s alibi was not investigated by the police or considered by the learned trial Judge. In Exhibit G, the Appellant stated that he did not partake in the armed robbery as he was at home on the fateful day. This was made immediately after he was arrested by PW4 at the Divisional Police Station, Ogijo. The arrests of the Appellant by PW4 and carting away property or conducting search on the Appellant’s house are not ways of investigating alibi.

PW4 did not testify that he made any enquires from anyone about the Appellant’s where about on the night of the robbery. Also, when the case was transferred to Federal SARS, they also failed to investigate the alibi. He went further to state that the learned trial Judge did not also consider the alibi as he dismissed the defence in one sentence as “balderdash or baloney and pure nonsense”.

He cited ESANGBEDO v THE STATE (1989) 4 NWLR (Pt. 113) SC 57 to back-up the fact that learned trial Judge had a duty to test that the defence of alibi against the evidence led by the prosecution and make a finding one way or the other. He stated that the effect of the failure of the learned trial Judge to test the defence is that he did not resolve all reasonable doubts in the Appellant’s favour. OKONKWO v THE STATE (1998) 4 NWLR (Pt. 544) 142 CA.

He finally concluded that this Honorable Court is respectfully urged to allow this appeal and set aside the conviction and sentence against the Appellant. RESOLUTION OF ISSUE 4: The essential contention of the Appellant under this issue is that the alibi raised by the Appellant in his Exhibit G that he was at home and did not participate in the robbery was never investigated or considered by the trial Court.

It is settled law that for a defence of alibi to be successfully raised, it must be raised at the earliest opportunity when the defendant is confronted with the commission of the crime, in order to afford the Police the opportunity of investigating and debunking same is they could: DAWAI v STATE (2017) LPELR-43835(SC), per Okoro, JSC at pages 15–16, para. C; ADEYEMI v STATE (2017) LPELR-42584(SC), per Peter-Odili, JSC at page 16, para. A; EBENEHI & ANOR v STATE (2009) LPELR-986(SC), per Ogebe, JSC at page 13, para. A; and MOHAMMED v STATE (2015) LPELR-24397(SC), per Nweze, JSC at page 46, para.

D. In the instant case, the argument of the Appellant is that he had stated in his first statement admitted as Exhibit G that he was at home and the Police did not investigate same and the learned trial Judge never considered same. In his statement made at the Ojigo Police Station on the 1st of April, 2017, the Appellant stated inter alia that: “I know one Uche at Sawmill Ojigo through his younger brother Joseph that is during scrap business at Camalo. I don’t know where Uche is living. I also know one Okafor a friend of Uche.

I know how to get Okafor and I believe if we can get Okafor to get Uche it will be very easy. On the 25/26-03/2017 I was at my house behind Sawmill Ojigo. I did not aware (sic) that Uche and his friend went and rob (sic) at Giyta Zone IV. I did not followed (sic) Uche and his friend to any robbery operation because I am not an armed robber. I never rob (sic) in my life. That is all about my statement now.” ​ In the case before the trial Court, the Prosecution presented PW1 (Cpl. Jamiu Salawudeen) and PW4 (Sgt.

Michael Julius) who investigated the case at the Special Anti-Robbery Squad (SARS), Magbon, Abeokuta and at Ojigo Police Station respectively. Going through their testimonies, PW1 had stated at page 42 of the Record that he never visited the 4th Defendant’s (Appellant’s) house.

But PW1 who investigated the matter at the Ojigo Police Station stated at pages 52–53 of the Record that when the complainants (PW2 and PW3) who had earlier reported that they were robbed, came back to inform him that they have seen one of the handsets stolen from them at a Ojigo Sawmill where it was being charged, he led a team to the place where they arrested one Sanni who stated that he bought the handset from one man called “Yellow” and led them to the 4th Defendant (Appellant) whom he said is also called “Yellow”.

PW4 also stated that after arresting the Appellant at his house, he executed a search warrant in the Appellant’s house and recovered one Plasma TV with remote control. On cross-examination, PW4 reiterated that the said Sanni had stated that the Appellant was also known as “Yellow”.

Even as there is no indication from the evidence of the police officers (PW1 and PW4) who investigated the matter that they have investigated the Appellant’s assertion that he was at his house on the 25-26/03/2017, the settled law is that even if the Prosecution has failed to investigate same, the burden is on the Appellant who asserted the alibi to substantiate same with credible evidence. In NNAMDI OSUAGWU v THE STATE (2013) LPELR-19823(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this settled position when he held at page 22, para.

D–D, that: “It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.” Also, in ATTAH v THE STATE (2010) LPELR-597(SC), the Apex Court, per Adekeye, JSC, held at pages 33–36, para. F, that: “The onus of establishing alibi, being a matter within the personal knowledge of an accused person, lies on him.

That it is not enough for the accused person to say to the Court that he was at a particular place away from the scene of this crime. That he has to prove his assertion. That even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi. In effect, it does not automatically mean that failure of the police to investigate will result in failure of the prosecution’s case.

The onus is on the accused person to establish the plea of alibi raised by him on the balance of probabilities.” In the instant appeal, the Appellant’s defence is at pages 64–66 of the printed Record of Appeal. In his testimony before the trial Court, the Appellant had stated that while he was in his Shop on the 30/03/2017 a Toyota Camry vehicle parked in front of his shop and three men came out and asked him if he knew Uche because they were looking for him and they were told he lived in the area. He said he told them that he was new in the area and had just started trading in the area.

He said he referred them to a woman who sells near his shop who told them that Uche was one of the men who issued tickets to traders in the area. He said the three men suddenly grabbed him and told him he was lying when he said he did not know Uche. He stated that he was slapped and beaten by the three men who handcuffed him and took him to the police station. He said at the Police Station he made a statement at Ojigo Police Station which he identified as Exhibit G. He said he was later transferred to SARS Office Magbon Abeokuta.

He denied knowing PW1 or volunteering any statement at SARS Office at Magbon, Abeokuta, claiming that one Mr. Gboye was the officer who attended to him at the Magbon SARS Office. He also denied knowing any of the co-Defendants. In essence, the Appellant led no evidence to establish his claim that he was in his house on the 25-26/03/2017 as he asserted in Exhibit G. He failed to discharge the burden on him to establish the alibi he raised on the balance of probabilities as required of him.

It is instructive that the learned trial Judge had duly appraised the Appellant’s defence both as it relates to his statements in Exhibit G and G1 and also as to his evidence in open Court, and at page 124 of the Record of Appeal, the learned trial Judge held that: “I wish to state at this stage that the 4th Defendant is not a witness of truth, as in his evidence in Court he stated he know (sic) Uche only as a ticket officer but in Exhibit G, which he claimed he made he stated that he knew Uche and even Uche’s younger brother.

I reiterate that learned Counsel though submitting that Exhibit G exculpates him but Exhibit G also in my view reveals that he has contradicted himself as to knowledge of Uche who is one of the persons at large who sold PW2’s phone to the Hausa man who went to charge the phone i.e. G-Tide phone yet again it is the evidence of PW1 that 4th Defendant was arrested when they went to look for the said Uche. The 4th Defendant also in Exhibit G1 confirmed it was Uche who introduced him to robbery.

The above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the armed robbery charge e.g. Exhibit G1 and the evidence of PW1.” ​ It is trite that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G.

OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. An appellate Court will therefore not interfere with such a finding of fact unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding is perverse: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E.

In other words, it is not the function of an appellate Court to retry the case on the evidence in the printed record and set aside the decision of the trial Court in order to substitute its own views. As long as the trial Court had properly appraised and evaluated the evidence before it, an appellate Court will not interfere. See:IGAGO v STATE (1999) LPELR-1442(SC), per Karibi-Whyte, JSC at page 27, para. E.

The party who complains against a finding of fact by a trial Court must therefore, show in what way the finding is wrong or perverse: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D; and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B.

In the instant appeal, it is evident to me from the finding of the trial Court that it duly appraised the evidence before it and in the face of such evidence which is on the printed record, the Appellant’s mere and unsubstantiated assertion in Exhibit G that he was at his house on the 25-26/03/2017 was not fatal to the Prosecution’s case. The Appellant has therefore failed to show how the finding of the trial Court was perverse or had occasioned any miscarriage of justice. I therefore resolve this issue against the Appellant.

On the whole, the four issues in this appeal have been resolved against the Appellant, thus signposting that the appeal is devoid of merit. I therefore dismiss this appeal for being unmeritorious. The judgment of the trial Court, the High Court of Ogun State sitting at Sagamu, delivered on the 24th of August, 2020 in Suit No. HCS/47C/2018 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and the same should be dismissed. I wish to add a few comments for the purpose of emphasis and in affirmative support of the said lead judgment.

The Appellant argued that conspiracy is not an offence that was defined by an Act, therefore, it is unlawful to convict the Appellant when the offence is not defined under any written law as provided in Section 36(12) of the 1999 Constitution.

It is trite that 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 and the offence of conspiracy has a unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed. See NDOZIE V. STATE (2016) LPELR-26067(SC), OSAREREN V. FRN (2018) LPELR-43839(SC). ERIM V. THE STATE (1994) 5 NWLR (PT. 345) 522 AT 524 and OSONDU V. F.R.N. (2000) 12 NWLR (PT. 682) 483 AT 501-502.

And this definition has been the accepted position of law in our criminal jurisprudence that a Court can draw support where an accused is charged for the offence of Conspiracy. Contrary to the argument of the Appellant, it is clear from the provisions of various laws that the offence of Conspiracy was defined, criminalized and adequately provided in satisfaction of the provision of Section 36(12) of the Constitution. See Section 516 of the Criminal Code, Section 96(1) of the Penal Code and Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004.

And again, there are plethora of judicial authorities that defined Conspiracy which is legally accepted and the Courts can rely on same, see the cases of IBOJI V. STATE (2016) LPELR-40009(SC), HASSAN V. STATE (2016) LPELR-42554(SC) and OMOTOLA & ORS V. STATE (2009) LPELR-2663(SC). Consequent upon the above and the more elaborate reasons advanced in the lead judgment. I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed by me.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA.

One of the issues thrown up by this appeal is whether the offence of conspiracy is codified in line with the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.” The foregoing provision is to the effect that a person shall not be convicted of an offence unless such offence is specifically or expressly provided for by a statute or legislation.

This accords with the provision of Section 36(6)(a) of the 1999 Constitution which provides that a person who is charged with a criminal offence shall be informed in detail of the nature of the offence. This much was pronounced upon by the Supreme Court in GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)1 AT 22, PARAGRAPH A, where the Court per Fabiyi, JSC held as follows: “Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides.

Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court.” Also, in ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30 AT 62, PARAGRAPHS A-B, Ngwuta, JSC held as follows: “In order to constitute an offence, criminality of its disobedience and punishment for same must be contained in the order disobeyed.” Furthermore, in TAFIDA VS.

FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)129 AT 147, PARAGRAPHS G-H, the Supreme Court, per Aka’ahs, JSC held as follows: “The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.” ​What this means is that an offence in respect of which sanction is provided must be expressly created by a statute.

The offence of conspiracy is expressly created by Section 6(b) of the Armed Robbery which provides that: “Any person who- (b) conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be proceeded against and punished accordingly under this Act.” I therefore completely agree with my learned brother when he held that all that is required to satisfy Section 36(12) of the Constitution is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The submissions made for the Appellant under issue No. 1 has no basis in law and it is hereby discountenanced. ​Premised on the foregoing and the fuller reasons contained in the lead judgment I also dismiss the appeal and affirm the decision of the trial Court.

Judgment

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In the judgment of the Adamawa State High Court, (hereafter referred to as the lower Court) delivered on 25/2/21 by Abdul-Azeez Waziri, J., the Appellant was convicted and sentenced to death for conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, (LFN) 2004. The Appellant was charged and tried alone while the two (2) others were at large.

At the trial, the prosecution called three (3) witnesses, PW1 – PW3 in proof of its case and tendered two (2), Exhibits “A1” & “A2” respectively. In his defence, the Appellant testified as the DW1 and called four (4) witnesses who testified as DW2 – DW5. At the close of the trial, the trial Court delivered judgment, convicted and sentenced the Appellant to death by hanging. Dissatisfied with the decision the Appellant appealed to this Court.

The background facts are that the Appellant on or about the 26th day of December, 2015 at about 21:30 hours at Tingno, in Lamurde Local Government Area of Adamawa State, with four (4) others agreed to do an illegal act, to wit: rob with offensive weapons such as guns, and knives and did rob Alhaji Samaila Yahya and Alhaji Sani Yahya of the sum of about N1,000,000.00 cash, recharged cards valued at about N1,000,000.00 and a laptop valued at N70,000 while so armed in pursuance of the said agreement.

Upon arraignment, the Appellant had the two count charge read, interpreted and explained to him in Hausa language. The Appellant understood and pleaded not guilty. The Prosecution called three (3) witnesses i.e Alh. Samiala Yahya, Daniya Yahya and Sgt. Usman Sanda who testified as PW1, PW2, and PW3 respectively and tendered Exhibits “A1” and “A2’ the Extra- judicial cautionary statement of the Appellant was admitted in evidence as Exhibits after a trial within trial was conducted. The prosecution thereafter closed its case.

The Appellant testified as DW1 and called four (4) other persons who also testified as DW2 – DW5 respectively and thereafter closed his case. In the judgment of the trial Court, the Appellant was convicted and sentenced to death by hanging.

​The Appellant formulated a sole issue for the determination of the appeal.

“Whether the trial Court was not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy, and convicted and sentenced the Appellant to death? (This issue has been distilled from Grounds 1 – 8 of the Notice of Appeal) The Respondent on its part also formulated a sole issue for the determination of the appeal as follows: – “Was the learned trial judge not right to have convicted and sentenced the appellant based on the evidence adduced before him, having the prosecution (sic) proved all the essential ingredients of the offences charged? (This issue is distilled from grounds 1 – 8 of the Appellant’s grounds of appeal) ​In arguing the appeal, the learned counsel to the Appellant A.

G. Anafi, Esq., adopted and relied on his brief of argument filed on 26/10/2021 and deemed properly filed and served on 2/2/2022 as his argument in this appeal; in urging us to allow the appeal, set aside the conviction and sentence by the trial Court and discharge the Appellant. In arguing his sole issue, the learned counsel submitted that the trial Court was wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offences of armed robbery and conspiracy to commit armed and convicted and sentenced the Appellant to death.

See page 163 of the printed records of appeal. It was submitted also that the evidence led by the Respondent and relied upon by the trial Court did not establish beyond reasonable doubt that the Appellant committed the offences of armed robbery and conspiracy. It was made out that an accused person standing trial is presumed innocent until proved guilty and the prosecution has the ultimate burden of proving the guilt of an accused person in a criminal trial. The standard required to discharge this burden is proof beyond reasonable doubt.

See SECTION 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED); SECTION 135 OF THE EVIDENCE ACT, 2011; STATE V. ONYEUKWU (2004) ALL FWLR (PT. 221) 1388, 1425; and IGABELE V. STATE (2004) 15 NWLR (PT. 896) 314, 344. ​It was further submitted that there are three (3) methods of proving the guilt of an accused person. These are by a confessional statement of an accused person voluntarily made; by circumstantial evidence, and by direct evidence of eyewitnesses. See FAMUYIWA V.

THE STATE (2018) 5 NWLR (PT. 1613) 515 AT 534 C ALSO REPORTED AT (2017) LPELR – 43836 (SC), IGABELE V. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR V. THE STATE (2014) LPELR – 23064 (SC), EMEKA V. THE STATE (2001) 32 WRN 37, 59; and OKUDO V. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236D. The learned counsel to the Appellant submitted that the Respondent failed to lead any cogent and compelling evidence in support of the Information filed before the Trial Court. We were referred to the essential elements of the offence of armed robbery. See ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO V.

STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO V. STATE (2014) 12 NWLR (PT. 1424) 613, ADEKOYA V. STATE (SUPRA) and IKARIA V. STATE (2014) 1 NWLR (PT. 1389) 638. Further, that PW1 – PW3 failed to link the robbery incident to the Appellant. It was contended that the three (3) essential elements or ingredients for the offence of conspiracy to commit armed robbery must co-exist and where one of them is absent the charge against the accused person cannot be said to have been proved. See USUFU V. THE STATE (2007) 3 NWLR (PT. 1020) 94 AT 113 – 114 H -1.

It was made out that, in the absence of any direct evidence, where the same set of facts are relied upon, if the essential elements of armed robbery are not established, a charge of conspiracy to commit armed robbery will fail automatically. See SALAWU V. THE STATE (2010) LPELR – 9106 (CA) and ARIBIGBOLA V. THE STATE (2010) LPELR – 9164 (CA). It was submitted also that a person cannot be convicted for conspiracy because one person cannot conspire with himself to commit a crime. The trial Court wrongly relied on Exhibits A1-A2 in convicting the Appellant for conspiracy and armed robbery.

See pages 153 – 154 of the printed records of Appeal. It was contended that the trial Court rightly found in the judgment that the Appellant resiled from Exhibits A1-A2 and that the law enjoins the trial Court to seek legally admissible independent corroboration before relying on the retracted confessions but, was wrong when it held otherwise. See, page 156 of the printed records of appeal.

It was contended further that it is an elementary principle of law that once an accused person denies making a confessional statement, it constitutes a retraction of such confession. Once a confessional statement is retracted, it remains admissible, nonetheless, such admissibility goes to the weight or probative value of evidence to be attached to such a confession. See ONAFOWOKAN V. STATE (1986) 2 NWLR (PT. 23) 496, BASIL AKPA V. THE STATE (2008) LPELR – 368 (SC), OCHE V. THE STATE (2006) LPELR – 11634 (CA), QUEEN V. ITULE (1961) 1 ALL NLR 462, ASANYA V.

STATE (1991) 3 NWLR (PT. 180) 422 and ONAFOWOKAN V. STATE (SUPRA). It was submitted that a Court of law can conveniently convict an accused person based on a confessional statement that is positive, direct and unequivocal. However, where an accused person retracts his confessional statement, such statement requires an independent corroboration which is distinct from and does not derive from the confessional statement itself. See OKOH V. THE STATE (2014) LPELR-22589 (SC), 27E – 28A, IFEDAYO V. STATE (2018) LPELR – 44374 (SC) 32 – 33, AZABADA V.

STATE (2014) LPELR – 23017 (SC) 14G – 15D and STATE V. MUHAMMED MASIGA (TSOLO) (2017) LPELR – 43474 (SC) 14D – 15C. It was submitted also that the trial Court should have sought legally admissible corroboration independent of Exhibits A1-A2 before convicting the Appellant and failure of the trial Court to seek an independent corroboration of Exhibits A1-A2 renders the same with little or no probative value. It was submitted further that Exhibits A1-A2, an alleged confession of the Appellant, was tendered in evidence by PW3 instead of Sgt.

Samaila Audu who recorded the statement, at page 103 of the printed records of appeal. See OLALEKAN V. STATE (2001) LPELR – 2561 (SC). It was made out that, the testimony of PW2 should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2 because it did not establish or link the alleged robbery to the Appellant and same is hearsay which is inadmissible. See KASA V. STATE (1994) LPELR – 1671 (SC) and IJIOFFOR V. THE STATE (2001) 9 NWLR (PT. 718) 371.

Further that the testimony of PW3 is irrelevant and lacks corroborative value because he did not investigate the case against the Appellant, but that one Sergeant Samaila Audu did and that it should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2. See page 103 of the printed records of appeal.

It was submitted that the PW1 testified that the alleged robbery occurred at about 8:30 p.m and that he never knew the Appellant or the alleged robbers before the alleged robbery and that he could not have clearly identified the Appellant which created a doubt in the Respondent’s case. It was made out that an identification parade is not necessary in all cases but necessary where the accused was not arrested at the scene, where he denies taking part in the crime and the victim did not know the accused before the commission of the crime. See JAMES UFOR V.

STATE (2016) LPELR-40126(CA) and OKIEMUTE V. STATE (2016) LPELR – 40639 (SC). It was submitted that, considering the time of the alleged robbery incident and the other circumstances surrounding the said incident, the Appellant should have been properly identified. See also OKOH V. THE STATE (2008) LPELR – 8352 (CA), IN MUSTAPHA V. STATE (2008) WRN (VOL. 2) 76 AT 83, MARTINS V. STATE (1997) 1 NWLR (PT. 481) 355 AT 370 PARAGRAPHS B-G, GHOHOR V. STATE (2013) ALL FWLR (PT. 709) 1061 AND NWANKWO V. THE STATE (2017) LPELR – 42756 (CA).

It was made out that, having impugned the testimony of PW1 – PW3, as well as Exhibits A1 & A2, there is no other legally admissible evidence on record capable of supporting Exhibits A1-A2. See OMEGA BANK NIGERIA PLC V. O.B.C. LTD. (2005) 1 SC 150. It was submitted that this Court has power to expunge the inadmissible evidence from the record. See IFARAMOYE V. THE STATE (2017) LPELR – 42031 (SC) and ALADE v. OLUBADE (1976) 2 FNR 10 at 13.

It was contended that the independent corroboration required must be sourced from legally admissible evidence available before the Court and that the Court cannot consider pieces of evidence which are not legally admissible to make findings of fact. This makes Exhibits A1-A2 stand as a lone evidence against the Appellant, Exhibits A1-A2 cannot corroborate each other. See IMEPURUNGU V. THE STATE (2019) LPELR – 47047 (CA), MOHAMMED V. THE STATE (2019) LPELR – 47045 (CA), R V. SYKES (1913) 8 CAR APPEAL REPORT 233 and AKPAN V. STATE ​ (1992) 6 NWLR (PT. 248) 439.

See also pages 156 – 157 of the printed records of appeal. It was contended that PW3 did not testify that Exhibits A1-A2 was made in the presence of the Appellant’s lawyer or his relatives which makes Exhibits A1-A2 doubtful, ingenuine and unreliable. See OWHORUKE V. COP (2015) LPELR – 24820 (SC). It was submitted that there is a material contradiction in the case presented by the Respondent which should have been resolved in the Appellant’s favour.

The law is settled that the appellate Court and the parties are bound by the record of appeal as compiled, transmitted and certified by the appellate Court. See MAGAJI V. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) AND AGBO V. FRN (2013) LPELR – 22870 (CA). It was made out that there are material contradictions in the testimony of the witnesses of the Respondent which create some doubt, that the accused person, is entitled to benefit there from. See pages 92, 93 and 103 of the printed records of appeal. See also POPOOLA V. STATE (2013) LPELR – 21443 (CA) 12C – G, JIMMY V.

THE STATE (2013) LPELR – 20333 (SC) and AGBO V. THE STATE (2006) LPELR – 242 (SC). It was made out that the trial Court was wrong when it held that Appellant has graphically stated in Exhibits “A1- A2” how he was invited by one Ruben from the uncontroverted evidence of PW1 and PW2 and other co-accused persons killed and at large acted in concert and that the appellant was not standing trial for murder and alone which in error and should be set aside. See pages 159 – 160 of the printed records of appeal.

It was submitted that no legally admissible evidence was led before the Trial Court that established beyond reasonable doubt the guilt of the Appellant in relation to the offence of armed robbery. It was also submitted that in the absence of any direct evidence, where the same set of facts are relied upon and where the essential elements of armed robbery are not established, a charge conspiracy to commit that robbery will fail automatically.

The Appellant’s counsel submitted further that the trial Court erred in law when it convicted the Appellant for conspiracy on count 1 which is an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. There must be two or more persons. See STATE V. YUSUF (2007) ALL FWLR (PT. 377) 1001 AT 1011 B – D, AGUGUA V. STATE (2017) 10 NWLR (PT. 1573) 254 AT 277G, SULE V. THE STATE (2009) 17 NWLR (PT. 1169) 33 AT 63 E-F, OGUGU V. STATE (1990) 2 NWLR (PT. 134) 539 AT 553 C–D, YAKUBU V. STATE (2014) LPELR – 22401 (SC) and YUSUF V. STATE (2012) LPELR – 7878 (CA).

It was submitted that the Respondent did not lead any evidence of common criminal intention formed between the Appellant and any other person to rob PW1. See OKEKE V. STATE (1999) 2 NWLR (PT. 590) 247. It was submitted further that none of PW1, PW2, PW3 and Exhibits A1-A2 established that the Appellant ever met and formed a common criminal intention with anyone for the prosecution of any unlawful purpose or to rob PW1. See ALARAPE V. THE STATE (2001) LPELR – 412 (SC). It was contended that, it is conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.

See BAKARE V. THE STATE (1987) 1 NWLR (PT. 52) 579; AND WUAM V. AKO (1999) 5 NWLR (PT. 601) 162. It was submitted further that where there is a doubt based on reason arising from evidence of the Respondent, doubt which a reasonable person might entertain, and which is distinct from fanciful or imaginary doubt should have resolved in favour of the Appellant. See UCHE V. STATE (2015) LPELR – 24693 (SC) AT 22-23 G – C, JUA V. STATE (2010) 4 NWLR (PT. 1184) 217 AT 243 AND JIBRIL V. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 AT 383.

It was submitted that the Respondent woefully failed to discharge the burden placed on it to establish the guilt of the Appellant on the allegations of offences of conspiracy and armed robbery. See ADEYEYE V. STATE (1968) NMLR 48 and OLUWATOYIN ABOKOKUYANRO V. THE STATE (2016) LPELR-40107 (SC), IDEMUDIA V. STATE (1999) 7 NWLR (PT. 610) 202 AT 215, ESANGBEDO V. STATE (1989) 4 NWLR (PT. 113) 57, SECTION 135(1) OF THE EVIDENCE ACT 2011, NWOSU V. STATE (1998) 8 NWLR (PT. 562) 433 AT 444 and AIGBADION V. STATE (2000) 7 NWLR (P.T 666) AT 704.

It was made out that the failure of the Respondent to link the Appellant to the robbery of PW1 with any legally admissible evidence, which is a vital element of the offence of robbery with which the Appellant was convicted for, created doubts in the case of the Respondent at the trial Court. The trial Court was in error to have resolved the doubts in favour of the Respondent instead of the Appellant. See SALE V. THE STATE (2016) 3 NWLR (PT. 1499) 392 AT 423 D – E AND 424 B – C.

Lastly, it was made out that it is settled law that any wrongful admission of, and reliance on, evidence will not constitute a ground for reversing a decision unless the party complaining can show as well that without such evidence, the decision complained of would have been otherwise. See BASSEY V. EKANEM (2001) 1 NWLR (PT. 694) 360 AT 378 F-G. Had the trial Court not admitted and placed much weight on the testimonies of PW1 and PW2 as well as Exhibits A1-A2, it would not have held that the Appellant was guilty of the offences with which he was charged.

That those inadmissible pieces of evidence seem to be the sole evidence that influenced the judgment of the Trial Court. See pages 152 – 163 of the printed records of appeal. In response, the learned counsel to the Respondent Z. Y. Usman, Esq., Senior State Counsel, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 19/11/2021, deemed properly filed and served on 2/2/2022 in urging us to dismiss and affirm the judgment of the trial Court.

The Learned Senior State Counsel argued his appeal seriatim and submitted that the above issue formulated for determination by this Honourable Court, ought to be answered in the affirmative. It was submitted also that it is a constitutional requirement that, the prosecution must displace the presumption of innocence against the defendant as rightly pointed out by learned appellant counsel, this fundamental principle is displace once the prosecution prove its case beyond reasonable doubt, and not necessarily beyond all shadow of any doubt.

See FEKOLOMOH V STATE (2021) EJSC (VOL.165) PG. 82 PARAS B-D AT 107; BAKARE V STATE (1987) 3 SC 1, IORTIM V STATE (1997) 2 NWLR (PT. 490) 711, OKERE V STATE (2001) 2 NWLR (PT.697) 397 and EMMANUEL IKE VS. THE STATE (2011) 200 LRCN 143 AT 149 R. 9. See pages 152 – 153 of the printed record of appeal. It was submitted that from the totality of evidence available to the trial Court, that led to this appeal all the above three elements as far-reaching alluded above were intact.

It was made out that despite the prosecution witnesses whom the trial Court believed their testimony made the requirement of law to secure the conviction of the Appellant. See FEKOLOMOH V STATE (Supra) PARAS E-G AT 107; PER SAULAWA, ILORI V STATE (1980) 8-11 SC 18, EMEKA V STATE (2001) 14 NWLR (PT 734) 668, GODWIN IGABELE II VS THE STATE (2007) 2 NCC 125 R. 6, OGUNO V. STATE (2013)15 NWLR (PT. 13761)1, NIGERIAN NAVY V LAMBERT (2007)18 NWLR (PT.1066) 300 and EMEKA V. THE STATE (2001)14 NWLR (PT. 734)666.

It was submitted further that the contains of Exhibits A1 & A2 are cogent and compelling which were tendered and admitted in evidence after a mini trial was ordered and successfully conducted, same was fully corroborated by the evidence of PW1 & PW2 wherein it clearly linked the contributory factor of the Appellant. See pages 154-157 of the printed record of appeal.

It was contended that assuming but not conceding that Exhibits A1 and A2 needed an independent corroboration, the said confessional statement was not only corroborated but was also tested through trial within trial to see if there was anything outside the confessional statement to ascertain if truly same was made by the Appellant.

It was made out that even if the Appellant was convicted based on his extra-judicial cautionary statement alone after trial within trial the appellant was rightly convicted on the strength of his cautionary statement Exhibit A1 & A2 which at all material time its stating or suggesting that he committed the offences with which he was charged while armed with offensive weapons. See EDHIGERE VS THE STATE (1996) NWLR (PT 464) 1 AT P.10 PARAS B- C and BASIL AKPA VS THE STATE (2008) 163 LRCN 186 AT 192 R.9 at 203 JJ 208 A.

It was submitted also that the confessional statement doesn’t need any independent evidence to corroborate the confessional statement of the Appellant to squire his conviction as corroboration in this case may only be desirable and not mandatory. See AGU vs STATE (2017)10 N.W.L.R. PT 1573 PG 180 PARAS C- F Per M.D, EGBOGHONOME vs STATE (1993)7 N.W.L.R. (PT 309) 383, KIM vs STATE (1992) 4 N.W.L.R. (PT 233) 17, NNAMDI OSUAGWU vs STATE (2013) LPELR-19823 (SC) and KINGSLEY JOE ISONG vs STATE (2016) LPELR – 40609 (SC) and YUSUF V. STATE & ADESAKIN V.

STATE (2020) EJSC (VOL.135) PG. 154 PARAS D- E AT 169. It was submitted that the mere fact that the Appellant in his testimony as DW1 resile from making the statement in an open Court, has nothing to do with involuntariness or whatsoever and therefore the admissibility of the statement and the resolution of the Court in convicting him on the strength of his confessional statement. See TANKO VS THE STATE (2008) 16 NWLR (PT.1114) P.597 AT 604 PARAS B-E AT 627 and BASIL AKPA VS THE STATE (Supra) R.18. See also pages 83 – 85 of the printed record of appeal.

It was made out that, having become evidence, the Appellant can no longer say it is a worthless document during his appeal and to fault the trial Court as to why he was convicted on the strength of his voluntary confessional statement. See SHURUMO VS THE STATE (2001) 196 LRCN 199 R. 1. Also commenting on the use of confessional statement to prove the guilt of an accused person, the Supreme Court also stated it in the case STEPHEN OMOGA VS THE STATE (1997) 7 SCNJ 518 AT 529.

It was made out that the Respondent at the lower Court was able to lead credible and convincing evidence in establishing the ingredient of the offence of armed robbery against the appellant. See STATE vs EKANEM (2017) 4 NWLR (PT. 1554) PG. 85 AT 105 PARAS G-H. It was contended that it was obvious that the Respondent has led evidence at the lower Court to show that there was a robbery(s), the robbery was armed robbery and the Appellant was one of those who took part in the robbery.

It was contended further that based on the evidence of PW1, PW2 and Exhibits A1 and A2 above which is so glaring and left no doubts. See page 150 of the printed records of appeal. See also page 93 of the printed record of appeal and we were also referred to the cases of STATE V. IBRAHIM (2021) EJSC (VOL. 164) PG 132 PARAS H-C AT 154, OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360, ABIODUN V. STATE (2013) 9 NWLR (PT. 14358) 138, SUBERU VS STATE (2010) 8 NWLR (PT. 1197) AT 586 and ATTAH VS STATE (2010) 10 NWLR (PT. 1201) AT 190.

It was made out that the Court should discountenance with the submission of the Appellant at paras 4.1 to 4.5, on the grounds that the Respondent did not lead cogent and compelling evidence in proving the essential elements of the offence of armed robbery and rather hold that all the essential ingredients of the offence of armed robbery are intact and same has been discharged. Lastly, it was submitted that on issue of robbery, it is settled law that where a defendant is properly identified at the scene of crime as in the instance case. The Court can convict on same.

It was made out by the Respondent on what its need to prove or secure conviction on the offence of conspiracy to commit armed robbery against the Appellant are the ingredients of the offence. See OKOH V THE STATE (2014) 8 NWLR (PT 1410) 502 AT 523 3.24. It was submitted that the ingredients were established beyond reasonable doubt at the trial Court, and the Court aptly relied on and convicted the Appellant. It was also made out that the Appellant in Exhibits ‘‘A1 & A2’’ categorically stated the way and manner in which he participated in the said armed robbery.

See pages 83- 85 of the printed records of appeal. ​ It was submitted that Exhibits “A1 and A2” was admitted in evidence after trial within trial was conducted, the testimonies of PW1 and PW2, which in-turn the Court is allowed by law to convict him on same. See pages 157 – 162 of the printed record of appeal. It was contended the Respondent had proved the offence of conspiracy to commit armed robbery against the Appellant. See pages 157 to 162 of the printed record of appeal.

It was submitted that there was more than enough evidence which suggested that the offence of conspiracy was proved against the Appellant and the appellant was not the only one that participated in the commission of the crime. See pages 161- 162 of the printed record of appeal. It was submitted that there is material contradiction in the evidence of PW1, PW2 and PW3, it is not true and that evidence of PW1 and PW2 is firm and uncontradicted both in their evidence in chief and under cross-examination. See page 92 of the printed record of appeal.

It was submitted that the Appellant’s counsel in his submission at paras 4.33, that the trial Court was wrong to have mention the ingredients of murder in the consideration of an offence of conspiracy. It was submitted that, this submission was misconceived as such did not born from the printed record of appeal before the Court. It was made out that the learned Appellant’s counsel makes heavy weather on the trial Court admitting Exhibits “A1 and A2” through PW3 who was not the recorder of the statement that the argument is misleading.

See Sections 39, 40 – 50 of the Evidence Act 2011, a confessional statement can be tendered through a non-maker and it is admissible in evidence and can validly be acted on. See MICHAEL OLOYE V. THE STATE (2018) LPELR-44775 (SC) and JOHN V. STATE (2011) 18 NWLR (PT. 1278) 353 SC. See, also pages 98-102 and 103- 104 of the printed record of appeal. I have examined the sole issues as formulated by the respective parties for the determination of the appeal. They are similar but, differently worded.

I would reformulate the issue for the determination of the appeal thus: Whether from the circumstances of this case and the evidence adduced at the trial Court, the Court was right to have convicted and sentenced the appellant for the offences of conspiracy and armed robbery for which he stood trial? In criminal trials, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt.

The learned counsel to the parties agreed that where there is an allegation of commission of a crime, the prosecution is expected to prove the commission of the offence beyond reasonable doubt. The term proof beyond reasonable doubt does not mean and is never interpreted to mean proof beyond all shadow of doubt. See EZEANI VS. FRN (2019) LPELR – 46800 (SC) P. 23, PARAS. A – C, his Lordship Okoro, JSC explained it thus: “The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt.

It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170, AKINLOLU VS. THE STATE (2015) LPELR – 25986 (SC), OSENI VS. THE STATE (2012) LPELR – 7833 (SC), MILLER VS. MINISTER OF PENSIONS (1974) 2 ER P. 372.” See also STATE VS. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAS. G – E and AMEH VS. STATE (2018) LPELR – 44463 (SC) PP. 22 – 23, PARAS. E – A.

On the meaning of “proof beyond reasonable doubt” the Apex Court also held in NWATURUOCHA VS. THE STATE (2011) LPELR – 8119 (SC) P. 25, PARAS. C – D, (2011) 3 SCNJ P. 148; (2011) 6 NWLR (PT. 1242) 170), His Lordship Fabiyi, JSC explained it thus: “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.” See also OSUAGWU VS. STATE (2013) LPELR – 19823 (SC) P. 25, PARAS.

D – E, ADEKOYA VS. STATE (2017) LPELR – 41564 (SC) PP. 19 – 21, PARA. C, AYINDE VS. STATE (2019) LPELR – 47835 (SC) P. 16, PARAS. C – F and OFORDIKE VS. STATE (2019) LPELR – 46411 (SC) PP. 8 – 9, PARAS. C – B. To discharge the burden on the prosecution, it could be done by various ways, through: 1. Eye witness account of the crime, 2. Confessional statement and 3. Circumstantial evidence which irresistibly linked the accused person to the alleged crime.

The Appellant was charged and convicted for the offence of Criminal Conspiracy to commit Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R II Laws of the Federation 2004 (hereafter referred to as the Act), Robbery while armed with offensive weapons contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation 2004.

To succeed in a charge of Armed Robbery, it has been firmly established by a plethora of authorities that in order to secure conviction every single element or ingredients of the offence must be proved by the prosecution beyond reasonable doubt. Armed Robbery simply means robbery plus violence threatened or used. Before there can be robbery something must be stolen and it is the duty of the prosecution to prove the offence beyond reasonable doubt.

The prosecution must prove that the accused person stole something capable of being stolen and at the time of stealing, the accused threatened to use violence or used violence immediately before or after the time of stealing. The violence would be either on a person or on property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

To establish armed robbery as it was made out by the parties, the prosecution must prove beyond reasonable doubt that there was a robbery or series of robberies and that the robbers were armed and the accused was the armed robber or one of the armed robbers. See F.R.N VS. YARO (2012) SCN 223 AT 236 – 237, OKANLAWON VS. STATE (2015) 3 SCN 359 and ISIAKA VS. STATE (2013) NCQR 1158. Going by the testimony PW1, stated thus:- “…On the 26/12/2015 at about 8:30pm I and my junior brother by name Alhaji Sani were coming from the shop where we sell handsets, recharge cards/provisions.

We met four persons two on each side and they stopped us. Three of the persons were armed with guns while the 4th person was armed with a knife. The accused person herein was one of the persons referred to here. They collected recharge cards totaling One Million Naira, raw cash totaling about seventy Thousand Naira realized from the sales of handsets/recharged cards and ‘provisions.

Also taken away from me is a laptop valued at N70,000.00 the accused person in spite of taking away the afforested items still insisted we should take them to my elder brother’s house the accused person fired a shot in the house, and all of us in the house lied down. My elder brother came out after hearing the shot and gunshot and accosted the accused person and we all stood up and arrested the three persons were taken to the police station at Tinkno, the two accused were lynched by the villagers at Police Station but the accused survived.

From there, he was taken to Lamurde Divisional Police Headquarters we couldn’t recover our stole items but only two guns and one knife was found on the accused.” See page 92 of the printed record of appeal. PW2 on his part stated thus:- “…on the 26/12/2015, I left my junior brothers in the shop and went back to the house.

I then opened my Radio and was listing to B.B.C Hausa service at 8:40pm then I heard a gunshot inside the house so I came out and I met the accused person standing with a gun so I grabbed him and we fell down together and the rifle fell down in the process and they are about 3 of them and it was dark then.

We then arrested the three of them and took them to the police out at Tinkno. Two out of the suspect were lynched at the police station and it is only the Accused person that survived….” (See page 93 of the record of appeal) The narration thus far by the PW1 and PW2 shows that there was a robbery which is superficially damning against the Appellant.

There is no contention as to whether there was a robbery and a careful examination of the case at the trial Court reveals the fact that armed robbery occurred, and the Appellant was among the Robbers armed that collected the properties of the victims which indeed was established beyond reasonable doubt, mainly by the oral testimony of the said PW1 and PW2.

I shall also reproduce the testimony of the Appellant in Exhibits “A1 and A2” which read thus:- “… I can remember last year in the month of December that is 2014 one Danjuma of Tinno Village via Cham district he used to sale herbal medicine at Cham, one day I went to buy some medicine from him we became friends and he collected my phone number which I also collected his own and we are communicating from there he called me one day and ask me to meet with him at one Village Gundili via Tinno district Lamured L.G.A Adamawa State which I agree.

On reaching there the said Danjuma called me a side and inform me that he is a Armed Robber and he want me to join him and his team.

I accepted because I am afraid of him and I don’t want him to know, after some month when I was at home one Ruben M. of the same address called on the phone and asked me to come to Tinno district because everyone is there except myself on reaching to Tinno, I meet the following – (1) Ruben M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos .M. of various address e all conspire an herd at the river side behind one Primary School, around 20:00hrs Danjima been the leader of the team went and brought three rifles, he gave one to Dan-fulani, one to Emos .M. and he also gave the remaining on to Ruben .M.

Ali was holding knife and they assign me to be the one that will hold money and properties when we succeeded from there Ruben .M. 21 told us that we are going to Robben some boys that has shop and there selling hand set at the markets immediately when the boys reached to were the rest of my team are hiding we got them arrested and took them to here house we ask the boys to lay down flat and any one of them try to move we will shoot him Dan-fulani .M. and Ali .M. when directly in to the main building which myself and Emos .M. who was holding rifle were Guarding two boy that were ask to lay down, after some few minute someone grab me from the back and start beating me, Emos .M. and Dan-fulani were also arrested at the scene and we wear beating by the mob which led to the died of Emos .M. instantly myself and Dan- Fulani .M. we were taken to the police station and the said Danfulani sustained high degrees of injuries which lead to his dead also at the police station while Ali .M. and Ruben took to the hills and escaped, I was taken to the hospital by the police and after my statement was obtained but I refused to confess and at the station I spent three days at the station before the case was transferred to C.I.I.D that what I have to say for now.” (See pages 83- 85 of the printed record of appeal).

By the above statement of the Appellant, it clearly suggested that the Appellant actively participated in committing the offence of armed robbery. It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR – 43603 (SC) P. 14, PARAGRAPH A-E.

His Lordship Sanusi, JSC clearly stated the position of the law thus: “A Confessional Statement simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended.

It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See ALABI V. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI V. STATE (2015) 6 – 7 SC (PT. 1) 83, OSETOLA AND ANOR VS. STATE (2012) 6 SCNJ 321, NWACHUKWU VS. THE STATE (2002) SCNJ 230, DOGO V. THE STATE (2013)2-3 SC (PT.

III) 75 at 92 – 94.” The Respondent has strenuously contended before the Court that the Appellant confessed to the alleged offences in his extra-judicial statements Exhibits “A1 & A2”. The Appellant denied making Exhibits “A1 & A2”. In law, the denial may not help him as he can be convicted on the statement which he retracted. The law allows it. However, in law can the Appellant be convicted on the basis of Exhibits “A1 and A2” alone? In IMEPURUNGU VS.

THE STATE (2019) LPELR -47047 (CA), I restated the position of the law briefly as follows: “In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra-judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement, the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say.” See also AZABADA VS. STATE (2014) LPELR – 23017 (SC), STATE VS.

MUHAMMED MASIGA (TSOLO) 2017 LPELR – 43474 (SC).” The testimony of the PW1 and PW2 was sufficient corroboration of the Exhibits “A1 and A2”. In UDO VS. THE STATE (2018) LPELR – 43707 (SC) at P. 22, PARAS. A – B, his Lordship Rhodes – Vivour, JSC held that: “Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw.

It is almost impossible to dislodge such evidence.” The law is that the evidence of an eye witness is one of the best evidence to sustain a conviction of an accused person, an on the spot account of what an eye witness (PW1 & PW2) saw at the scene of the alleged offence, it is sufficient to sustain a conviction. See SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73, AKINMOJU VS STATE (2000) 6 NWLR (PT. 662) 608 and AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171.

The PW1 and PW2 gave a clear and detailed account of what they saw at the scene. ​ The Appellant testified as DW1 and stated the fact he was invited by one Dauda for iron bending work and on reaching there he was arrested by the men and taken to State CID where he was tortured and unconscious and while on admission at the hospital, a paper was given to him by one of the IPO’s to sign else medication would not be given or administered on him which he did signed before he was arraigned at the trial Court.

Four (4) others testified at DW2 – DW5 give their testimony about the character of the Appellant. See pages 121 – 122 of the printed records of appeal. The statement of the Appellant to the police, Exhibits A1 and A2 is clear and leaves no room for doubt that he was one of the gang members. The confession of an accused person is usually the best evidence, coming from the horse’s mouth so as to say in a criminal trial.

An admission of having committed the offence is the best evidence in a trial and it plays a major role in the determination of the guilt of the accused person and the Court can rightly convict on the confession if it comes to a conclusion that the confession is voluntary. The testimony of the Appellant and his witnesses are afterthought and I according discountenanced. In the present case, the learned trial Judge after the trial within trial did hold that Exhibits A1 and A2 were voluntarily made, therefore the issue of the voluntariness does not arise here.

I would add on the effect of a confession of the truth. In TIRIMISIYU ADEBAYO VS. THE STATE (2014) LPELR – 22988 (SC) PP. 46 – 47, PARAS. E – B, His Lordship Ariwoola, JSC explained it thus: “On the confession of an accused person, this Court had held that the: “evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See REP. VS.

CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC 63 at 68, JIMOH YESUFU VS. THE STATE (1976) 6 SC 167.” INUSA SAIDU VS. THE STATE (1982) 4 SC 41 at 58 – 59. In OGOALA VS. THE STATE (1991), this Court per Olatawura, JSC (of blessed memory) stated that “a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused.” See OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 25 SC and OBOT VS. STATE (2014) LPELR – 23130 (CA).

On the offence of conspiracy, it is trite that the offence of conspiracy could be inferred since it is virtually impossible to prove criminal acts of the accused person by direct evidence done in pursuance of a criminal purpose in common in agreement with one another. The Appellant was charged with criminal conspiracy pursuant to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act (supra). Conspiracy generally has been variously defined by the Apex Court. In STATE VS.

SALAWU (2011) LPELR – 8252 (SC) PP. 38 – 39, PARAS E – A, (also reported in (2011) 18 NWLR PT. 1279 P. 580) His Lordship Muhammad, JSC defined it thus: “The general definition assigned to the word “conspiracy,” in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition.

In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines “conspiracy” as follows: “(1) when two or more persons agree to do or cause to be done – (a) An illegal act; or (b) An act which is not illegal by illegal means.” See also KAYODE VS. STATE (2016) LPELR – 40028 (SC) P. 32, PARAS. A – B, IRENE NGUMA VS. ATTORNEY – GENERAL, IMO STATE (2014) LPELR – 22252 (SC) PP. 31 – 32, PARAS F – A; (2014) 7 NWLR (PT. 1405) P. 115, GABRIEL OGOGOVIE VS.

THE STATE (2016) LPELR -40501 (SC) P. 25, PARAS. A – C, OBIAKOR & ANOR VS. STATE (2002) LPELR – 2168 (SC) P. 13, PARAS. C – F and OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 29 – 30, PARAS. F – E. The trial Court was satisfied with the contents of Exhibits A1 & A2, the Appellant’s confessional statement, where he gave a graphic account of how he was introduce through a phone call and the role he played in actualizing their plan and robbed PW1 and PW2.

It could be rightly inferred that the Appellant and (1) Ruben .M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos conspired to rob their victim PW1 and PW2. I agree with the submission of the learned counsel to the Respondent that the prosecution led cogent and compelling evidence to show that the Appellant acted in concert with others to rob their victims. The pieces of evidence and those of PW1 and PW2 remained uncontroverted by the Appellant. No doubt, the Appellant and others acted as one, with a common purpose and in agreement to commit armed robbery.

The trial Court was right to have held that the prosecution established the offence of criminal conspiracy against the Appellant. It was also contended by the learned counsel to the Appellant that the trial Court mentioned “Killed” (culpable homicide) while determining the offence of conspiracy, it is an oversight because both parties knows the offences for which the accused is standing trial which offences are armed robbery and conspiracy. The Appellant’s counsel challenged the appellant’s conviction and sentence on the basis that there was no identification parade.

The question at this juncture is: When does the issue of identification arise? Identification parade is only necessary in the following circumstances: 1. Where the victim/witness did not know the accused before and the first acquaintance with him is during the commission of the offence. 2. Where the victim (witness) was confronted by the defendant for a very short time; and 3. Where the victim (witness) due to time and circumstance might not have had the opportunity of observing the features of the accused. See IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455.

The issue of identification therefore would only arise where the identity of the person that committed an offence is unknown. In OCHIBA VS. STATE (2010) LPELR – 9002 (CA) P. 13, PARAS. A – B, his Lordship Rhodes-Vivour, JCA (as he then was) simply put the position of the law thus: … It is only when the identity of the accused person (appellant) is really in issue that an identification parade becomes necessary. ALABI VS. STATE 1993 7 NWLR PT. 307, P. 511, ORIMOLOYE VS. STATE 1984 10 SC P. 138, ANYANWU VS. STATE 1986 5 NWLR PT. 43 P. 612.” See also FATAI VS. STATE (2013) LPELR – 20182 (SC).

An identification parade is necessary where the arrest of the accused person is based on suspicion as opposed to where the accused person is apprehended on the spot, as happened in the present case. I am at one with the submission of the learned State Counsel, that the Appellant was one of the robbers arrested at the scene of crime that robbed the victims on the fateful day considering the evidence of the PW1 and PW2. The learned counsel to the Appellant did not controvert these pieces of evidence.

The Appellant voluntarily confessed to the crime, an identification parade was unnecessary in this case, the Appellant having been caught at the scene committing the offence. The Appellant was fixed at the scene of crime. In OLAOYE VS. STATE (2018) LPELR – 43601 (SC). In respect of the appellant’s confessional statement shelving the need for an identification parade the Apex Court held that: “…the appellant had identified himself when in his confessional statement Exhibit ‘H’, he had fixed himself at the scene of the crime on the day of the incidence.

The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.” See also IBRAHIM VS. STATE (1991) LPELR – 1404 (SC) PP. 11 – 12, PARAS. F – C. A careful look at the testimony of the PW3 he stated that: “… I work with the State CID Yola D8 section. Yes I now the defendant. On the 30th day of November, 2015, I was in my office when a case of criminal conspiracy and armed robbery was transferred from Lamurde Police Station to the State C. I. D. Yola for discreet investigation. I then records the statement of the one the victim one Samaila Yahya.

PW1 Sgt. Samaila Audu recorded that statement of the defendant herein in my present. Sgt. Samaila Audu has been transferred to Edo State Police Command as at 2016…” Under cross-examination, it was stated thus:- “I was around when the statement was taken and it was the IPO Sgt. Ismaila Audu that recorded the Defendant’s statement. The statement of the defendant was taken in English language. I am aware that the defendant does not understand English language. It is true that it is the IPO who records the statement…. Five of us were on the team.

Detective Usman Zubairu, Detective Ismaila Audu, the IPO, Detective Usman Sanda, Detective Abdul Abdulhamid and Detective Ahmed all also interviewed the defendant.” ​ From the above, it is pertinent to consider or rather observe the testimony of PW1 and PW2, the robbery took place at night at about 8:30pm to 8:40pm and the PW1 stated that there was no moonlight and under cross-examination that he only saw the accused for the first time.

The PW1 continued that the robbers collected their properties and immediately insisted they took them to the house of PW2 with all that they collected from the robbery and at the house, the PW2 stated that (the Appellant) and two others were arrested. It was also stated by the PW2 under cross-examination also that he did not recognize the accused at the scene. See pages 92 – 94 of the printed records of appeal. It is trite that where it has been severally held that weapon(s) used for robbery must not be tendered to secure the conviction of an accused because weapons can be easily discarded.

See SARIRU VS. THE STATE (2019) LPELR – 4686 (CA), JAMES SIMON VS. TH STATE (2017) LPELR -41988 (SC), AWOSIKA VS. THE STATE (2018) LPELR – 44351 (SC) PP. 42-43, PARAS D-G and in my judgment in OKOH VS. THE STATE (2008) LPELR – 8352 (CA). The minor discrepancies as made out by the learned counsel to the Appellant on the prosecution’s case are not material contradictions, which cannot affect the credibility of the prosecution witnesses. See EDUENOH VS. STATE (2019) LPELR – 48345 (CA) AND AKPA VS. STATE (2007) 2 NWLR (1019) 500 AT 528 PARAS D – G.

No doubt the offences of Criminal Conspiracy and Armed Robbery were proved against the Appellant beyond reasonable doubt. I cannot fault the judgment of the trial Court. In the final analysis, the appeal is dismissed for lacking in merit. The Judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in advance the draft copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court. I adopt the lead judgment as mine with nothing further to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Chidi Nwaoma Uwa, JCA. I entirely agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.

Judgment

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment) : This is an appeal brought by the Appellant to challenge the correctness of the judgment of Hon. Justice L. M. Boufini of the High Court of Bayelsa State, Yenagoa Judicial Division in Suit No. YHC/167C/2016 delivered on 9th October, 2018, wherein the Appellant, Joshua Miracle, was found guilty of conspiracy to commit armed robbery and armed robbery, and consequently sentenced to death by hanging. The jurisdiction of this Court was invoked when the Appellant filed his Notice of Appeal on 5th November, 2018.

It contains five grounds with detailed particulars. The Appellant’s brief which was settled by O. A. Nelson, Esq. was dated and filed on 25th January, 2019, whereas, the Respondent’s brief was settled by its learned counsel, E.T. Boatman, Esq. and was filed on 22nd May, 2020. The Appellant’s Reply brief on the other hand, was filed on 30th June, 2020.

THE BRIEF FACTS OF THE APPEAL: ​The Appellant was charged before the lower Court by an Information filed on 26th September, 2016 on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and Section 1 (2) (a) of the Armed Robbery & Firearms (Special Provisions) Act, Cap R11, LFN, 2004. The Respondent as the Prosecution at trial called three witnesses and tendered EXHIBITS A, A1, and B also an ID which is a bond containing recharge cards released to the complainants by the police.

It was the summary of the Prosecution’s case at trial, that on the 11th July, 2016, the Appellant in company of two others now at large namely, Daniel and Tino, armed with a shotgun and a dagger knife, successfully robbed PW1 in front of his shop of a bag containing recharge cards of various denominations worth two million, one hundred naira only and physical cash of two hundred and twenty-three thousand naira only, and fled.

That upon boarding commercial tricycle (keke-napep) going to Opolo, they were intercepted at Otiotio junction, by men of the Operation Doo Akpor, who conducted a search on their persons and belongings found in their possession. In the process of the said search, Daniel and Tino fled the scene and the Appellant was detained. ​The next day, PW3 in company of the Appellant visited the scene of the robbery, and was properly identified by PW1 as one of the armed robbers who carried out the attack on him the previous day. A search warrant was executed and his private residence searched by PW3.

However, PW3 recorded the Appellant’s confessional statement under caution, wherein he admitted to the crimes. ​On the other hand, the Appellant’s case can be summarized thus: The Appellant is a welder apprentice, and that on 11th July, 2016, at about 7pm after he had closed from his place of work, he was going to his house in the company of his colleague named Daniel Rufus at Tombia, and a van containing some unknown people blocked his vehicle and whisked him away to Door Akpor, and then to SARS. While there, they were informed that there was a robbery.

During the investigation, the officers took him to his dad’s house to search the place, in search of what he did not know anything of. He did not make any statement at SARS, but was forced to sign an already written statement. At the proceedings during the trial, when the Respondent sought to tender EXHIBIT B, learned Counsel to the Appellant objected to its admissibility, stating that the Appellant was forced to sign EXHIBIT B, he was however overruled by the lower Court.

ISSUES FOR DETERMINATION: Learned Appellant’s Counsel in his brief of argument, formulated and canvassed two issues for determination to wit: i. Whether the trial Court was right to have relied on involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery? (Grounds 1, 2, and 3). ii.

Whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court? (Grounds 4 and 5). ​On the other hand, Counsel to Respondent formulated two issues for the determination of this appeal. i.

Whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made? ii. Whether the learned trial Judge was wrong in admitting the extra-judicial statement of the defendant without conducting a trial within trial?

SUBMISSIONS OF COUNSEL: On the first issue raised and argued by the Appellant’s counsel, he submitted that the learned trial Judge overlooked the evidence as shown before it and seemingly imported totally different evidence, as it were, into the proceedings. He submitted further, that there is nowhere in the entire proceedings of the Court that the Appellant admitted making and signing the alleged confessional statement, EXHIBIT B, without being coerced.

He noted instructively, that the learned trial Judge erred in omitting or ignoring the relevant averments of PW2 on this point at page 64 of the records of appeal. ​He vehemently submitted that the admission in evidence of the alleged confessional statement of the accused person as EXHIBIT B even when an objection to its admissibility on the ground that it was not voluntarily made by the Appellant was raised timeously by the Appellant’s Counsel, tantamount to affront to justice. In reliance of his proposition, he cited the decisions in OLAYINKA v.

STATE (2007) 9 NWLR (PART 1040) P. 561 AT Pp. 577 paras. C-E; paras. E-F; STATE v GWANGWAN (2015) ALL FWLR (PART 801) p. 1470 at pp. 1500-1501 paras D-H, paras A-B.

He submitted that by the unequivocal and combined intendment of the case laws and statutory provisions mentioned above is that the alleged confessional statements in EXHIBIT B is an inadmissible document and having been wrongly admitted was liable to be expunged from the record. ​It was contended that the learned trial Judge heavily relied on the alleged confessional statement of the Appellant to convict and sentence him for the offence of armed robbery and conspiracy to commit armed robbery even though the Appellant challenged the voluntariness of the alleged confessional statement, the learned trial Judge failed to conduct a trial within trial in order to test its veracity according to the law. ​He further submitted that the evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from its record.

He urged upon this Court to expunge EXHIBIT B the legally inadmissible alleged confessional statement of the Appellant and all the findings thereof made by the lower Court which were heavily relied on by the trial Judge to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery. He further urged this Court to resolve issue one in favour of the Appellant and overturn the decision of the lower Court, discharge and acquit the Appellant.

On the second issue, it is the submission of Appellant’s Counsel that even though the alleged confessional statement of the Appellant was properly admitted in evidence, that because an accused person’s extra-judicial statement is evidence of the fact that it was made but being an extra-judicial statement, it is not evidence of the truth of its contents. In reliance the Appellant’s learned counsel cited of STATE v.

OBOBOLO (2018) 4 NWLR (PT. 1615) P. 428, PARA G; 429, PARA A. ​He went further in his submissions to argue that the prosecution did not prove beyond reasonable doubt all the ingredients of the offence of armed robbery and conspiracy to commit armed robbery as contemplated by the law, yet the learned trial Judge convicted the Appellant by relying solely on the inadmissible admitted alleged confessional statement of the Appellant to convict and sentence the Appellant.

He submitted again, that the law does not impose an obligation on the Appellant to absolve himself of guilt, but rather it imposes an obligation on the prosecution to prove the guilt of the Appellant beyond reasonable doubt, and that to do this, the prosecution must prove the ingredients of the offence(s) charged as required by law and to the satisfaction of the Court. He reiterated the position of the law as enunciated by the Supreme Court in its decision in the case of EHIMEN ESENE v. STATE (2017) LPELR-41912 (SC).

The Appellant’s counsel further argued that the learned trial Judge, did not properly evaluate all the evidence canvassed by the prosecution witnesses before arriving at his decision to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery and argued that the prosecution has an obligation to place all available relevant evidence before the trial Court, and that where there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. He cited the decision in IBRAHIM v.

STATE (2015) ALL FWLR (PT. 779) P. 1149 AT pp. 1175 paras. D-E, G-H in support of his proposition. Learned Appellant’s Counsel again submitted in relation to the provision of Section 4 of the Police Act. Cap. P19 LFN 2004 that the in the absence of the report of police investigation report reduced the case to that of a civil nature where it is always the words of the parties against the other.

He argued that although the police investigation report is not binding, in a criminal trial, but it is of great value to the Court in the evaluation of the prosecution’s case before it arrives at a decision on the guilt or innocence of the accused person and also find that the without such evidence of police investigation report, it would be doubtful if such charge could be filed against the accused persons. He cited the case of ONONUJA v. STATE (supra) AT page 1226 paras E-H; 1227 paras A-E in support of his proposition.

It was further contended that the reliance on the uncorroborated ipse dixit of PW1, the inadmissible alleged confessional statement of the Appellant, failure to call PW1’s girlfriend and failure to call any of the police officers from operation Dooakpor, ought to have been applied to cast doubt on the guilt of the Appellant in the mind of the Court below. He again submitted that the fulcrum of the apex Court’s decision in the case of OLAYINKA v. STATE (supra) at p.575. Paras.

D-F, is that once the prosecution evince that the alleged weapons used in committing an alleged armed robbery is recovered, it behooves on the prosecution to tender same. He contended that the refusal of the prosecution to tender the alleged recovered weapons used by the Appellant in the alleged armed robbery as stated in the proof of evidence speaks volume, to wit, that there were no weapons recovered from the Appellant and that the alleged allegation was a trumped-up charge by PW1, being the only eye witness of the alleged armed robbery.

It was further argued that the evidence of the Appellant was never contradicted and/or rebutted by the prosecution during cross examination. He added that it is trite law that facts not disputed are taken as admitted and/or established, as they need no further proof. In further reliance on this statement of law, the Appellant’s learned counsel cited again the decisions in EHIMEN ESENE v. THE STATE (supra) Pp. 23-24 paras F-A Pp. 40-41; OLAKUNLE v. STATE (2018) 6 NWLR (PT. 1614) p.91 AT pp 110 para. B.

He finally submitted that from the foregoing, that in all ramifications, the prosecution has not proved any of the ingredients of armed robbery against the Appellant which must be proved beyond reasonable doubt in order to ground a conviction against the Appellant.

In their response to the arguments canvassed by the Appellant in his brief of argument, the Respondent argued the two issues already formulated in the Respondent’s Brief of argument. ​In arguing his first issue on whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made, Respondent learned Counsel submitted that it is the position of the law, that the moment the proof tendered by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the perpetrator of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by law.

In support of this proposition, he cited ADELEKE v STATE (2014) ALL FWLR (PT. 722) PG. 1655 AT PG. 1673, PARAS B-D. The Respondent’s learned counsel argued that the law has abundantly provided that in proving the guilt of an accused, the prosecution can do so by any these methods: (a) direct evidence (b) circumstantial evidence (c) confessional evidence and submitted that proof of at least one of these is sufficient to secure a conviction. He cited the decision in FRN v.

BARMINAS (2017) ALL FWLR (PART 882) PG. 1256 AT PG. 1277, PARA A-B and then contended that the trial Judge was right in convicting the Appellant for the offences upon which he was charged, seeing that neither of the prosecution witnesses nor exhibits A, A1, B or B1 was impeached during cross-examination and adding that the position of the law remains that unchallenged or uncontradicted evidence is the safest to rely on.

He further submitted that contrary to the arguments of Appellant’s Counsel, he argued that the Court did not rely solely on EXHIBIT B to ground the conviction, but rather, on the combined evidence of the prosecution witnesses is corroborative enough to convict the Appellant. In reliance of this proposition, the Respondent’s counsel cited the cases of YAHAYA v. STATE (2016) LPELR-40254 (CA) (P49, PARAS A-C).

The Respondent’s Counsel urged this Court to discountenance the arguments of Appellant’s Counsel in paragraphs 5.7-5.13 on the ground that they are not issues emanating from the judgment of the trial Court being complained against. He added that an appeal is not a ground for rearguing the case of the Appellant, rather what an Appellant’s Counsel can do is to provide authorities to convince the appellate Court that the trial Court erred in law to have arrived at the decision appealed against. In reliance, he cited the decision in OREDOYIN v.

AROWOLO (1989) 4 NWLR (PT. 114) 172; TARHEME ABE & ANOR v. GABRIEL DAMAWA & ANOR (2011) LPELR-5007 (CA). He further submitted, that the trial Court was right to have convicted the Appellant for the offence of conspiracy, as from the evidence available to the lower Court there was clearly the ingredients of conspiracy therein.

On the second issue, he submitted that by virtue of the implication of Section 29(1) and (2) of the Evidence Act, 2011, where an objection is raised as touching the voluntariness or otherwise of a confessional statement, the law requires the Court to conduct a trial within trial in order to test the voluntariness or otherwise of the extra judicial statement.

He however contended, that the law did not foreclose the trial Court from inquiring from taking a look at the statement to see whether there is need for trial within trial or not. ​He further submitted that an objection as to the admissibility of a confessional statement is not an outright condition for trial within trial, as a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled. He cited the decision in DARE JIMOH v. STATE (2014) LPELR-22464 (SC).

He submitted that the trial Judge was right in admitting the extra-judicial statement of the Appellant as exhibit, this he reasoned also because as he observed, the Appellant when inquired by the learned trial Judge admitted making the statement. He further argued that it was the duty of the Appellant and not his Counsel to raise the issue of involuntariness of a confessional statement and in support of this proposition, the Respondent’s counsel relied on FRN v. BABALOLA (2015) ALL FWLR (PART 785) 227 AT 247, PARAS. D-E.

In his conclusion, he urged this Court to discountenance the submissions of the Appellant, dismiss the appeal and to uphold the verdict and the sentence imposed by the lower Court.

The Appellant’s Counsel in his Appellant’s Reply brief, made some rebuttals to the Respondent’s brief and submitted that the burden of proof in a criminal trial remains on the prosecution throughout and does not shift, as the burden is only discharged by leading cogent and credible evidence to establish all the essential elements of the charge against the defendant. ​In support of statement of law, he cited the decisions in the cases of JATO v. STATE (2019) 8 NWLR (1674) 317 at Pp. 325-326, paras. F-A; EHIMEN ESENE v STATE (2017) LPELR- 41912 (SC).

He submitted further, that the prosecution at the trial hearing, did not prove the offence of armed robbery against the Appellant beyond reasonable doubt, as the only evidence that tends to link the Appellant to the alleged offense is the uncorroborated ipse dixit of PW1. On why the Appellant failed to cross-examine PW2 at trial, he submitted further that the evidence of PW2 was a mere hearsay and thus was inadmissible in law and cannot be used as corroboration to the ipse dixit of PW1.

He argued, that the statement of PW2 as contended by the prosecution, cannot be corroborative evidence because it is not a fresh and independent statement, rather it is a repeat of what he was told by PW1. In reliance he cited the decisions in ITODO v. STATE (2020) 1 NWLR (PART 1704) 1 AT Pp. 29-30 paras. H-G; P.40, paras A-H and STATE v.

YAHAYA (2019) 13 NWLR (PART 1690) P. 397 AT p. 428-429 paras H-B. ​He further argued that even though the Appellant’s Counsel dutifully objected to the admissibility of the alleged confessional statement on the ground that it was not voluntarily made, the trial Judge overruled this objection on the pretext that the trial Judge inquired from the Appellant on the same issue, and he received an answer in the affirmative.

He contended that the personal knowledge of a Judge cannot take the place of evidence in matters placed before him, and that it does not lie with a trial Court to help out the prosecution to buttress its case against an accused person. In support of this proposition, he cited the decision in OBI v. ATTORNEY GENERAL, IMO STATE (2016) 3 NWLR (PART 1500) P.11 paras E; F-G. He equally countered Respondent’s Counsel’s contention that it was Appellant’s Counsel and not the Appellant that objected to the admissibility of the alleged confessional statement, by citing the case of EKWURUEKWU v.

STATE (2020) 4 NWLR (PART 1713) P. 114 AT P. 134 paras D-F, wherein the Supreme Court opined that it is the duty of the learned Counsel to raise an objection to confessional statement that was being tendered on the ground that the statement was not voluntary and that trial within trial would then become necessary in order to determine voluntariness or otherwise of the making of the statement.

In sum, he urged upon this Court, to accede to the reliefs sought by the Appellant in allowing this appeal, and overturning the conviction and sentencing of the Appellant and discharge and acquit the Appellant. RESOLUTION OF ISSUES: Having taken quality time to study the two issues respectively formulated and canvassed by both parties in their respective briefs of argument, and having seen that they are substantially the same, I will therefore advisedly adopt the two issues raised by the Appellant for the due and just determination of this appeal.

The first issue can be gleaned, perhaps extrapolated from the first three grounds of appeal, and bothers on whether the trial Court was right to have relied on the involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery. ​It is trite law that where an objection is raised in a criminal proceeding against the admissibility of an alleged confessional statement, the trial Judge ought to immediately conduct a trial within trial, in order to properly determine the voluntariness or otherwise of the making of the confessional statement.

See the provision of SECTION 29(1)–(3) of the EVIDENCE ACT, 2011. ​In the instant case, the Appellant’s Counsel having objected to the admissibility of the EXHIBIT B, the alleged confessional statement made by the Appellant in the course of investigation, but was summarily overruled by the trial Judge, and same was admitted as an exhibit. The trial Judge in page 51 of the records gave his reasons for the admittance of EXHIBIT B, the alleged confessional statement, despite the objection of the Appellant’s Counsel.

In his own words, he stated thus: “…On the 2/2/2017 when PWs sought to tender the extra judicial statement of the accused person, the defense Counsel raised an objection on the grounds that the statement was not voluntarily made, the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.” In explaining the rationale for his decision, the learned trial Judge recorded why he admitted EXHIBIT B, the learned Counsel to the Respondent, referred this Court to the case of DARE JIMOH v.

STATE (2014) LPELR-22464 (SC), wherein the apex Court opined accordingly: “a trial is said to be necessary when the voluntariness of the making of the confessional statement by an accused person is in issue or raised by an accused person is in issue or raised by an accused person. In other words, where the accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary.

However, when the trial Court is satisfied that the statement was voluntarily made, the Court is entitled to admit it as an exhibit in evidence before the Court,” ​Learned Counsel to the Respondent contended further that by virtue of the word “HOWEVER” in the above dictum, it is an indication that an objection for the admissibility of a statement is not an outright condition for trial within trial, for a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled.

This submission of learned Counsel to the Respondent has in my view, pushed forward one question to answer and it is “why did the trial Judge overrule the objection of the Appellant’s Counsel?” Graciously, the answer to this germane question has already been answered above, when the trial Judge said “…the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.” ​This reason given by the learned trial Judge, further led this Court to dig into the records as it’s the only guide for the events that transpired in the proceedings in the trial Court.

By the record of proceedings, particularly at page 51, there is no where contained therein where the trial Judge made any inquiry to the Appellant and he answered the trial Judge in the affirmative. From the records before us, such an interaction was not borne out of the record of the proceedings in relation to Exhibit B that was used and relied upon by the trial Judge. No place in the entire length and breadth of the records does that particular interaction or conversation featured between the Court and the Appellant whilst standing trial.

How the learned trial Judge came about such a “finding” of fact still remains an unresolved puzzle. It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the record of appeal as compiled and transmitted to it and therefore, cannot go outside the contents of the record of appeal to decide on issues in contention in the appeal between the parties before it. See the decisions in GLOBAL FLEET OIL & GAS LTD v. ALLEN (2021) LPELR-54583(CA); AGBEOTU v. BRISIBE (2005) 10 NWLR (Pt. 932).

This Court is indeed bound by the records of appeal, as it was not physically present during the trial at lower Court, and thus can at best only rely on the records as compiled and transmitted to it. This Court cannot go outside the records to import facts, or alleged interactions between the learned trial Judge and the Appellant, when they do not exist in the record.

It will also be wrong for this Court to rely on statements made by the trial Judge that happens to be within the confines of his personal knowledge alone, and which he seeks by some cloistered method to add to the body of evidence before him. See the case of OBI v. ATTORNEY GENERAL, IMO STATE (2016) (supra). My noble Lords, given the circumstances of the obvious and wrongful omission by the learned trial Judge to conduct a trial within trial when same is required by law, the apex Court has most recently made a pronouncement in its decision in the case of STATE v.

SADIQ(2021) LPELR-56660(SC), thus: “… His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement. Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case.

The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.” Following this judicial statement, this Court also most recently held in the case of MOHAMMED v. KANO STATE (2021) LPELR-54801(CA) that: “Failure to conduct the trial-within-trial, when necessary, renders the statement inadmissible, and if wrongfully admitted, should be expunged from the record or discontented. It should be un-relied upon. See also EHOT v. STATE (1993) 4 NWLR (PT 290) 644 AT 673 C, OGU v.

C.O.P (2018) 8 NWLR (pt 1620) 134”. ​It should naturally follow that only lawful and proper order for this Court to give after resolving this issue against the Respondent in favour of the Appellant, will be to expunge completely from the records, EXHIBIT B as a product of unlawful extraction of a confessional statement from the Appellant contrary to the provision of the Evidence Act, supra and the Constitution as a fundamental right from self incrimination pursuant to Section 36(11) of the Constitution, 1999 As Amended, and the alleged confessional statement was in utter violation of the Appellant’s right to fair trial as the trial Judge erred in law by refusing to test the veracity of the voluntariness of the contents of exhibit B without conducting a trial within trial and acted in my view, without jurisdiction to assume that the statement was made voluntarily as the trial within trial was meant to unearth the factual circumstances under which the confession was allegedly made by the Appellant.

I so hold. The second issue raised by the Appellant flows from the fourth and the fifth grounds of appeal, and it bothers on whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court?

As EXHIBIT B, the alleged confessional statement of the Appellant has been expunged from the records, it will be curious to see if the other pieces of evidence placed before the learned trial Judge were enough to ground a conviction of conspiracy and armed robbery against the Appellant. The law is clear and well established on the ingredients that must be proved to be able to sustain a conviction of armed robbery, they are as follows: a) That there was a robbery b) That the robbery was carried out with the use of offensive weapons c) That the accused person participated in the robbery.

It is imperative to say that all the above requirements must be consecutively proved beyond reasonable doubt before a conviction can be sustained based on the indictments in the Information filed. See the decision in the case of EHIMEN ESE v. STATE (2017). ​From the evidence given by PW1 who happened to be the only eye witness fielded by the prosecution, he brought the following facts: i. The PW1 was not alone at the time of the robbery, but rather was in the presence of his girlfriend. ii.

The Appellant was the member of the gang of 3 robbers that pointed a gun at him, the other robbers wielding knives. iii. That the Appellant has been a frequent visitor of the recharge card shop, where he used to come and see one Tega Moses who was PW1 sales girl and allegedly the Appellant’s girlfriend. iv. That PW1 and the Appellant have been previously well acquainted before the day of the robbery. v.

That the PW1 only knew that the Appellant was among the alleged armed robbers in the morning when the accused person was brought by the police; despite PW1 allegedly flashing him torch light during the alleged robbery. vi.

Finally that the said Tega Moses made a statement to the police and that the said statement was in the case file and that he also prepared a police investigation report which was also in the case file. ​It is trite in law, that the prosecution has a solemn obligation as a minister in the temple of justice to the trial Court to place all available relevant evidence and witnesses before the trial Court in order to aid in the resolution of any vital point that such a witness or evidence may help resolve or settle.

In sum, the prosecution must not withhold vital evidence or witnesses whose testimonies may lead the Court to a just determination of the vital issues in contention. See the case of IBRAHIM v. STATE (2015) ALL FWLR (PT. 779) P. 1149 at PP. 1175 paras D-E, G-H. It is disturbing to think that the prosecution conveniently omitted to call Tega Moses who was supposed to be a key witness, neither did they deem it fit to tender her extra judicial statement made to the police before this Court, more over seeing that she was allegedly the informant of the Appellant.

It is equally disturbing that the prosecution failed to call the second eye witness, one Mercy, the girlfriend of PW1 who according to the evidence of PW1, was present at the time of the alleged robbery. Neither did the prosecution deem it fit to tender in evidence, the police investigation report in accordance with SECTION 4 of the POLICE ACT. CAP. P19 LFN 2004. ​It is only natural and logical for this Court to presume that any evidence which could have been tendered but was not produced for whatever reason, would if produced, be unfavourable to the person who withholds it.

See SECTION 167 of the EVIDENCE ACT, 2011, and the decision in ONONUJA v STATE (supra). The suppression of the aforementioned pieces of evidence is bound to naturally cast doubts on the mind of this Court on the guilt of the Appellant. I see no reason why Mercy, the girlfriend of PW1 a fellow eye witness, whose account could have helped facilitate the determination of the Appellant’s guilt will be left out, neither do I understand the suspicious suppression of vital and relevant evidence by the prosecution in this case.

This Court is now weary of accepting hook, line and sinker, the scanty and largely unconvincing evidence produced by the prosecution in criminal matters such as in the instant case and beside this, is the fact that no evidence has irrefutably confirmed the existence of the three ingredients of armed robbery all linked to the Appellant.

As simply as it would have been to tender the recovered weapons used in the alleged armed robbery, the prosecution also failed to do this. ​With these overwhelming lapses on the part of the Respondent, one can only imagine and surmise from two opposite spectrums, the one being that the prosecution was grossly negligent in the prosecution of this case, or the other being that indeed the evidence not produced were deliberately suppressed because they either did not exist or they would have led to proving the innocence of the Appellant.

Furthermore, it is abundantly evident, that the prosecution relied very heavily on EXHIBIT B, the alleged confessional statement of the Appellant, which has now been expunged from the records. It is clear to see that without EXHIBIT B, the alleged confessional statement of the Appellant, the case of the prosecution against the Appellant is shallow and weak and is grossly insufficient to ground a conviction. As we know, in serious offences carrying the death penalty, a high degree of proof is necessary to secure conviction.

The law is also trite that in a criminal trial, if the totality of the evidence causes the Judge to entertain any scintilla of doubt, then the benefit of such doubt must be resolved in favour of the accused person by virtue of the constitutional presumption of innocence vide Section 36 (5) of the Constitution, 1999 as amended. It will be fatal to the course of justice for this Court to fall into the same error as the lower Court as I am compelled to resolve issue two in favour of the Appellant.

Having dispassionately, perhaps painstakingly dealt with the issues formulated and canvassed above, it is clear that the Respondents have failed to prove the guilt of the Appellant beyond reasonable doubt, as a consequence of the overwhelming lapses and loopholes in their case against the Appellant. ​In addition, the deliberate suppression of evidence by the prosecution, the failure of the trial Judge to conduct a trial-within-trial following the objection raised by Appellant’s Counsel to the admissibility of the alleged confessional statement, and the failure of the prosecution to prove to this Court that the ingredients of armed robbery are present in this case, makes it judicially risky for this Court to uphold the conviction of and sentence imposed by the lower Court.

The prosecution has failed to successfully discharge the burden of proof that is legally placed on it in criminal trials, as it’s elementary and almost axiomatic by our adversarial mode of jurisprudence that he who asserts must prove and in a criminal trial, beyond reasonable doubt as is the case in criminal trials. There was yet a reasonable doubt in the mind of this Court. I hereby overturn the conviction and sentencing of the Appellant by the lower Court and discharge and acquit the Appellant.

Consequently, the Appellant having been discharged and acquitted, shall be released forthwith in the place he has been held by reason of the judgment of the lower Court, High Court of Bayelsa State sitting in Yenagoa delivered by Hon. Justice L.M. Boufini on 9th October, 2018 which is hereby set aside. The appeal succeeds.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: My very brother, Gabriel Omoniyi Kolawole, J.C.A., graciously allowed me to read in the draft, the judgment just delivered by him. I agree with his reasoning, conclusion and Orders made therein. I wish to add that the law is sewed that in a criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt, and a general burden to rebut the presumption of innocence constitutionally guaranteed to the citizen.

The burden on the prosecution is only discharged when the essential ingredients of offence charged have been established and accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. Attorney-General of Bendel State (1986) 2 NWLR (Pt. 24) 648.

The verdict of guilt on a suspect can only be sustained upon evidence which establishes beyond reasonable doubt the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Fore (2000) 15 NWLR (Pt 692) 868 at 880-881. In this appeal, the lower Court admitted the extra-judicial statement of the Appellant in evidence, as exhibit B, despite protestations to its voluntariness and admissibility, by Appellant’s counsel, at the trial.

It was imperative that a trial-within-trial should have been conducted before the document was admitted in evidence. We have to be reminded that a trial Court has the duty to consider all defence possible or available to an accused person or an Appellant in a criminal case, even though such defences may appear stupid, improbable or ungrounded.

The defences which the Court has the duty to consider on behalf of the accused person or an Appellant are defences that appear or are contained in the evidence in the record of proceedings of the Court even if the accused person did not specifically raise them. See Annabi v. State (2008) 13 NWLR (Pt. 1103) 179 at 200. Having wrongfully admitted and acted on the extra-judicial statement, the action of the lower Court cannot be allowed to stand. Evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record.

Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. Furthermore, an appellate Court faced with such situation has a duty to intervene. See Agbaje V. Adigun (1993) 1 NWLR (Pt. 269) 261. Furthermore, when a finding of fact is based on inadmissible evidence (Oral or documentary) the finding is perverse and an appellate Court has a duty to interfere with the finding of fact and set it aside. See State v.

Emine (1992) 7 NWLR (Pt. 256) 658 and Asanya v. State (1991) 3 NWLR (Pt. 180) 422.

​The name of a vital witness also came up at the trial. The prosecutor failed to call or account for that witness or person. The fact that the prosecution failed to call a vital eyewitness should have been followed by the lawful consequence of such abstinence. In the case of Oduah v. FRN (2020) 12 NWLR (Pt. 1737) 16 at 32-33, the Court put out education about what should follow, where a vital witness is not called at a criminal trial, by the prosecution.

While it is true that the prosecution is not obliged to call all listed witnesses or to call a host of witnesses to get a conviction, where, however, there is a vital witness whose evidence is very crucial and important to the case of the prosecution in the proof of the guilt of the accused person, such a witness must be called; and failure to so call him would be fatal to the proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced, it would work against the prosecution and favour the accused person.

Where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that witness been called, his evidence would have been unfavourable to party who called him. See Onah v. State (1985) 3 NWLR (Pt. 12) 236. In sum, I agree that the appeal has merit. This appeal is allowed. The judgment of the High Court of Bayelsa State, under the hand of Justice L. M. Boufini, dated 01/10/2018, is hereby set aside. The conviction and sentence of the Appellant is hereby set aside.

The Appellant is discharged and acquitted. The Appellant shall be released from his current place of detention, immediately.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the privilege of reading in its draft form, the lead judgment just delivered by my learned brother, Gabriel O. Kolawole JCA where he allow the instant appeal for being meritorious and set aside the decision of the lower Court. I agree with him and have nothing to add. The Appellant is discharged and acquitted.

Judgment

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment) : The Appellant was arraigned before the High Court of Justice, Kaduna on a charge dated the 7th day of December, 2012.

The Appellant was arraigned along with two others at large on a two count charge reproduced hereunder: COUNT ONE That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and Kenneth (Alias Bayo) (at large) on or about the 10th day of March, 2018 at Manchok in Kaura Local Government Area of Kaduna State agreed and armed yourselves with guns to go and rob residents of Ungwan Hausawa Manchok and in the process you shot and killed one Abubakar Garba Dankera which act you did in pursuance of the said agreement and thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special provisions) Act Cap R11, Laws of Federation of Nigeria.

COUNT TWO ​That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty-three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera.

You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a) & (b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004. The Appellant pleaded not guilty to the charge. The Prosecution opened its case, calling PW1, the IPO to testify as to the circumstances that gave rise to the case. PW1 testified that he was on duty on the 22nd day of September, 2018 and that the Appellant was arrested by the Civilian J.T.F. (vigilante group) and brought to his station.

PW1 testified that he was informed that on the 19th day of September, 2018, the Appellant was arrested and made a confessional statement that he was among those that attacked one Balarabe Ibrahim Danjuma of Hausawa Manchok. That on the 10th day March, 2018, there was an attack and the Appellant and his friends all conspired and entered into Balarabe’s neighbour house and one Abubakar Garba Dankira came out to ascertain the situation and was shot dead. It was said that the Appellant informed them that he was ready to change, thus, the reason for the confession.

The statement was recorded after the Appellant was cautioned and he signed. ​ Even though the Appellant denied making the statement, the statement was admitted in evidence and marked as Exhibit A. The Prosecution also sought to tender the photograph of the man alleged to have been shot by the Appellant and the two co-accused said to be at large. It was admitted and marked as Exhibit B. The Prosecution called PW2, a petty trader who testified that he saw the Appellant in front of the Chief of Moro’a palace when he was brought there by the Civilian J.T.F. (vigilante group).

PW2 testified that on the 10th day of March, 2018 at about 1 pm, he heard gunshots and was informed that one Abubakar Dan Kira had been shot in the stomach. PW2 identified the said Abubakar as the person contained in Exhibit B. He further testified that he was told that on the 22nd day of September, 2018, he was informed that one of those arrested by the local vigilante group confessed to the killing of Abubakar. The Prosecution witnesses were cross-examined by the Appellant’s counsel and they closed their case. The Defence opened its case and called the Appellant as their sole witness.

The witness testified on his behalf that on the 10th day of March, 2018, he went to his farm as he was a farmer. The witness testified that some people came to meet him on the farm and arrested him. That he was put in a vehicle and taken to Mariri and kept in a private room. Then he was asked if he knew Chechet Celestine and another person and he said he knew them as they all lived in the same neighbourhood. He was asked where he got the guns from and he denied ever having a gun.

The Appellant further testified that he was beaten seriously and forced to repeat that he and his friends killed Abubakar and he was recorded. He said he was then taken to the Kaura Police Station and was detained for three weeks. He said he was later given a document to sign and he refused to sign. He claimed to have been beaten seriously. He said he still refused and maintained that he never wrote or thumb printed Exhibit A. Appellant was cross-examined and the matter was adjourned for adoption of final written addresses and then judgment.

While delivering its judgment on the 28th day of August 2019, the trial Court held that by the contents of Exhibit A, it was clear that it was the Appellant that made the said confessional statement and it was made voluntarily and that mere denial of ever making it is of no moment. The learned trial judge held that the evidence placed before the Court was so clear and unambiguous and that the Appellant can be safely convicted on it. The Appellant was convicted on the two count charge and was accordingly sentenced to death by hanging.

Unhappy and appalled with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 25th day of November, 2021, with four grounds of appeal. The Appellant filed his brief of argument which was deemed properly filed and served on the 20th day of January, 2022 and settled by Nnaemeka Otagburuagu Esq.

In the said brief a sole issue for determination was distilled as follows: Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery? (Formulated from Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal) The Appellant has argued that the trial Court failed woefully in establishing the guilt of the Appellant beyond reasonable doubt before going ahead to convict him.

It was further argued that it is settled law that the onus in criminal cases is beyond reasonable doubt and it lies on the prosecution and not the accused to prove his innocence. Reference was made to the cases of HARUNA JATO VS. STATE (2019) 8 NWLR (PT. 1674) and AKPAN BASSEY VS. THE STATE (2019) LPELR – 46910. The Appellant further submitted that the three ingredients to establish the offence of armed robbery must be proved beyond reasonable doubt before the Appellant could have been convicted. Reference was made to the case of OJO VS.

FRN (2008) 11 NWLR (PT. 1099) PAGE 467 @ PAGES 511 – 512. ​ It is the argument of the Appellant’s counsel that the evidence of the prosecution witnesses and the confessional statement marked as Exhibit A fell short of the established ingredients and as such cannot sustain a conviction against the Appellant. It was further stated that the testimonies of PW1 and PW2 were mere hearsay evidence as there was no evidence to corroborate same. It was further argued that the testimony of PW2 had no relationship to the charge as he did not testify as an eye witness.

The Appellant’s counsel also submitted that the testimony of PW1 was fraught with a lot of inconsistencies which made it incapable for being the basis for the Appellant’s conviction as the trial Court cannot pick and choose what to rely on. Reference was made to the case of OSADIM VS. TAIWO (2009) LPELR – 8209 (CA) and NWORU VS. STATE (2018) LPELR – 44640 CA. The Appellant’s counsel submitted that the trial Court failed to evaluate the evidence before coming to a conclusion and thus the failure occasioned a miscarriage of justice. The case of OKEKE VS.

OKEKE (2019) 17 NWLR (PT 1701 PAGE 267 AT 292 PARAS A – B was cited in support. ​ Also, the Appellant’s counsel raised the issue that there was no evidence on record debunking the Appellant’s evidence that he never participated in the armed robbery incident as his evidence was not even considered at all or evaluated by the trial Court. The Appellant further submitted that the trial Court relied on the retracted confessional statement and failed to evaluate the voluntariness of the confessional statement.

It was argued that the Court was bound to evaluate all evidence available to the Appellant for his defence. Reliance was placed on the case of MAFA VS. STATE (2013) 3 NWLR (PT. 1342) PAGE 607 AT PAGE 623. The Appellant’s counsel also stated that the judgment of the trial Court was not based on logical thinking, deducible from facts or admissible evidence before it. The case of STATE VS. ISIAKA (2013) 11 NWLR (PT. 1364) PAGE 162 AT PAGES 188 – 189 was cited in support.

The Appellant’s counsel submitted that with regard to the offence of conspiracy, the Respondent failed to prove the ingredients of the offence of conspiracy and armed robbery against the Appellant. Counsel referred to the cases of ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) PAGE 74 AT PAGE 127 and OFORDIKE VS. STATE (2019) LPELR – 46411. It was argued that there was nothing from the testimonies of PW1 and PW2 showing any meeting of minds between the Appellant and the other co-accused that were at large. It was then submitted that the Court cannot base its decision on speculations.

The case of ONUOHA VS. STATE (2002) 1 NWLR (PT. 748) PAGE 406 was cited in support. It was further submitted that the decision of the trial Court is against the weight of evidence adduced at the trial as far as the Appellant is concerned, as the evidence is not overwhelming to have led to the trial Court convicting the Appellant.

The learned Appellant’s counsel drew the attention of this Court to the fact that before the robbery incident and until he was arrested, PW1 and PW2 had never seen the Appellant and so, there ought to have been an identification parade so as to properly identify the Appellant since he was arrested several months after the crime was committed. Reference was placed on the case of KEKONG VS. THE STATE (2017) LPELR – 42343 SC. Finally, the Appellant’s counsel submitted that the Respondent failed to call the vital witness which is the victim in proof of its case as it was fatal to its case.

The case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) 663. This Court was urged to allow this appeal and acquit the Appellant. ​ The Respondent on their own part filed their brief of argument which was deemed on the 31st day of May, 2022 and settled by Dr. M. T. Adekilekun Esq.

In the said brief a lone issue for determination was distilled as follows: Whether having regard to the facts and circumstances of this case and the evidence adduced at the trial, the prosecution/respondent has not proved the guilt of the Appellant beyond reasonable doubt to have justified the verdict of guilt made against the Appellant. (Distilled from Grounds 1 – 4 of the Notice of appeal) The learned Respondent’s counsel submitted that the guilt of an accused person can be proved by the confessional statement of an accused person, evidence of an eye witness and circumstantial evidence.

Counsel cited the case of AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) PAGE 619 AT 645 PARAS F – G in support. The Respondent’s counsel submitted that the Appellant was convicted of armed robbery and conspiracy and that the trial Court relied on Exhibit A and B. It was argued that the Appellant was convicted of conspiracy based on his confessional statement as conspiracy is usually a matter of inference from surrounding facts and circumstances. The case of IKECHUKWU OKOH VS. THE STATE (2014) LPELR – 225 PAGE 89 was cited in support.

It was also submitted that the Appellant had admitted under cross-examination that he knew the two co-accused persons who were at large. The learned Respondent’s counsel went ahead to submit that the fact that the other two suspects are on the run strongly suggested that a crime was committed by them. On the offence of armed robbery, the Respondent’s counsel argued that the Appellant was convicted of this offence based on Exhibit A, the confessional statement which was recorded in line with the provisions of Section 28 and 29 of the Evidence Act.

It was further submitted that an accused person can be convicted solely on a confessional statement without corroboration. The case of CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 AT 232 – 233 was cited in support. The Respondent’s counsel further submitted that the evidence of PW2 corroborated the confessional statement and that there were no inconsistencies therein at all, and that the trial Court evaluated the evidence adduced before the trial Court before convicting the accused person.

This Court was urged to affirm the decision of the trial Court and hold that the Respondent proved the case against the Appellant beyond reasonable doubt. RESOLUTION OF ISSUES Having read and digested the respective briefs filed by learned counsel for the parties herein, I shall now proceed to determine the appeal and in doing so I shall adopt the issue for determination formulated by the Appellant so as to thoroughly dispose of any point raised in this appeal.

The said issue is again reproduced hereunder as follows: Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery? The trial Court convicted the Appellant of the offence of conspiracy and armed robbery. This instant appeal is based on the Appellant’s dissatisfaction with his conviction at the Court below. Did the prosecution prove the ingredients of conspiracy and armed robbery to secure a conviction against the Appellant?

In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. ​The burden remains on the prosecution and does not shift.

Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.

The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the Court must be an unbiased umpire and must not descend into the arena of conflict. In the case of OJO VS.

STATE (2018) 15 NWLR (PT. 1643) PAGE 527 AT 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are: “(a) through a voluntary confessional statement of the accused person; and/or (b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or (c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.” In the case of JATO VS.

THE STATE (2019) 8 NWLR (PT. 1674) PAGE 326 PARAS E – F, it was held by the Supreme Court per Kekere-Ekun, JSC that in a charge of armed robbery, the prosecution must prove the following essential ingredients: (a) That there was a robbery or series of robberies. (b) That each robbery was an armed robbery; and (c) That the accused person was the robber or one of those who participated in the armed robbery. In the case of MARTIN EGBUFOR VS.

THE STATE (2019) 5 NWLR (PT. 1665) 260 AT 277 PARA D, it was held by the Supreme Court that where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the Appellant’s guilt beyond reasonable doubt. ​ The prosecution in this case tendered the confessional statement of the accused person and it was admitted in evidence and marked as Exhibit A.

I have read through the judgment of the trial Court and I shall quote a part of it as contained on page 38 of the Record of Appeal: “Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law.

By the said abscondiment (sic) by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere, somehow and I so hold.” From the judgment quoted hereinabove, it is clear that the Appellant was convicted solely on the contents of the Exhibit A, his confessional statement. In the case of SULE VS.

STATE (2018) 10 NWLR (PT. 1628) PAGE 564 PARAS D – G, it was held that: “Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness.

A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.” When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the Accused has willing offered himself to be slaughtered.

A direct, voluntary and unequivocal confessional statement is solid evidence that can be used to convict an accused person. In the instant case, the Appellant was convicted solely and only on the strength of the confessional statement. The question that must be answered is: was the confessional statement strong, direct, positive, unequivocal and free from doubt, capable of securing a conviction against the Appellant? In the case of SULE VS.

STATE (SUPRA), it was held that: “The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person.

It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved.

In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.” I have read the confessional statement which is Exhibit A and it is stated here by the Appellant or at least let us assume it is the Appellant that he alongside three other men carried out a robbery operation at Durumi, Abuja. Also, it was stated that they stole the sum of N50,000 and killed three persons there.

He further stated that he alongside Chechet alias Celestine and Kenneth alias Bayo went for another robbery operation and the sum of #80,000 was stolen from a shop of which he was given the sum of N25,000 as his share. He stated that no provisions were stolen from the shop.

I have read the charge upon which the Appellant was brought before the trial Court and count two states: “That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera.

You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a)&(b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.” ​ First and foremost, how did the Respondent arrive at these figures? Assuming the confessional statement is true, the Appellant here confessed to stealing a total sum of N130,000 from two separate robberies i.e. N80,000 in the first robbery and N50,000 in the second one. How then did the Respondent come about the total figure of N1,943,000 as the sum of money stolen and N700,000 as value of goods stolen?

Who gave the Respondent the figures? Who is the shop owner? Where is the shop owner? What kind of goods were stolen? What is the specific number of goods stolen that amounted to the value of N700,000? I am taken aback at how the Respondent exaggerated the figures contained in the charge and lazily failed to prove it. What do they take the Courts for? A place where you can just hike prices and value of goods without any evidence to prove same so as to tighten a heavier stone around the neck of the accused so that he can drown?

Why did the prosecution not call the shop owner or whoever gave them the figures of the money stolen and value of goods stolen as he or she would have been a vital witness in proof of the crime? In the case of UZIM VS. STATE (2019) 14 NWLR (PT. 1693) PAGE 419 AT 441 PARA D – E, the Supreme Court per Augie, JSC described who a vital witness is: “A vital witness is a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. ONAH V STATE (1985) 3 NWLR PART 12 PAGE 236 SC.

It is well settled that the prosecution is entitled to call only the witnesses that it considers relevant to its case. In effect, it is for the prosecution to determine the direction of its case and which witness to call to prove its case and once it discharges that burden on it to prove its case beyond reasonable doubt it does not matter.” Furthermore, it was held in the case of UZIM VS. STATE (SUPRA), that: “The prosecution has a duty to prosecute the accused within the ambit of the law.

To that end, the law grants it the discretion to call any number of witnesses or adduce any particular evidence to prove its case beyond reasonable doubt.” Simply put, no one can dictate the specific witnesses the prosecution must call in proof of its case. It is totally within their discretion. However, where the prosecution claims to have gathered information from a source or a person and they lazily dump the information before the Court without trying to prove same at all, then it can be safe to say that they have failed to call a vital witness.

The shop owner or whoever is in a position to state the goods stolen or the money stolen would have been a vital witness for the prosecution to nail the coffin over the Appellant. The learned Appellant’s counsel has argued in his brief of argument that the testimony of PW1 and PW2 were hearsay evidence. I have read through the testimony of PW1 and he testified clearly that: “On 22-09-18, I was on duty at about 1pm the civilian J.T.F. (alias Yam Bula) attached to Mariri, Lere L.G.C. arrested and brought to our police station the defendant.

That via information on 19-09-18 at about 4pm, they arrested the defendant who made a confessional statement before them that he was one among those that attacked one…” The Appellant’s counsel has argued that the testimonies of PW1 and PW2 amount to hearsay and thus they should be disregarded. PW1 is the Investigating Police officer and he clearly testified about all he discovered during the course of his investigation of the case. He recorded statements from PW2 and the Appellant. In the case of OBOT VS.

STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that: “… it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating police officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police officer obtains statements from accused persons and witnesses alike. He thereafter testifies in Court giving a synopsis of what he did during the investigation.

He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police officer is not by any standard hearsay.

He gives an account of what he has done in the process of his investigations.” The testimony of PW1 cannot be said to be hearsay evidence since his job as the Investigating Police Officer is to give direct evidence of his findings even if he garnered such information from another person.

However, I cannot help but wonder why the person referred to as J.T.F. Civilian (alias Yam Bula) was not called as a witness by the prosecution. PW2 had also stated in his testimony contained on page 29 of the Record of Appeal that: “I am a petty trader. I saw defendant once in front of the Chief of Moroa’s palace when he was brought there by the Civilian J.T.F (Vigilante group). I do not know why the vigilante group brought the defendant there If the J.T.F.

Civilian (aka Yam Bula) is so well known by PW1 and PW2, why was he not called as a material and vital witness to help the prosecution’s case against the Appellant? Apparently, he was the one that arrested the Appellant and he would have been able to shed more light as to the circumstances that led to the arrest of the Appellant and possibly help in establishing the guilt of the Appellant. In the Court of Appeal case of AJOKITI VS. STATE (2018) LPELR – 45234 (CA) (PP. 21 – 24, PARAS.

C – B) it was held thus: “The law is well settled that the prosecution has an uphill task of proving the guilt of the Appellant beyond reasonable doubt. The failure of the prosecution to call Cpl Ojo, the only eye witness who saw and arrested the Appellant with the stolen vehicle was certainly vital to the case for the prosecution as it was tantamount to withholding evidence, which provokes the presumption of law that such evidence that could be but not produced, would if produced have been unfavourable to the prosecution.

It is pertinent that the only witness that could have given direct and admissible evidence in respect of the allegation levied against the Appellant was, for reasons best known to the Respondent, not called to testify and tender the controversial confessional statement in Court.

One wonders why the prosecution fails to call such critical eye witness like Sgt Ojo who arrested the Appellant and also recorded the alleged confessional statement of the Appellant before transferring him to Benin City and who later came to Benin to investigate the case by visiting the scene of crime and the home of the Appellant. However, the prosecution decided to call PW1 and 2 who were merely informed about the incidence by Sgt Ojo, his critical stance notwithstanding.

It is pertinent that the evidence of P.W1 and 2 who were merely told that the Appellant was arrested in possession of jeep and some ammunition was hearsay in so far as it seeks to prove the truth of that information. Sgt Ojo should have testified and his testimony be subjected to the rigours of cross-examination as an eye witness and also being the person who not only arrested the Appellant in possession of the recently stolen jeep but also recorded the alleged controversial confessional statement made by the Appellant that led to his conviction and sentence, the subject of the instant appeal.

The absence of the evidence of this critical witness renders the evidence adduced on behalf of the prosecution fall short of proof beyond reasonable doubt as required by law. See ADEREMI OMOTAYO v. THE STATE (2012) LPELR – 9358 (CA). The presumption of law arising from such failure to call this important witness is that his evidence would have been unfavourable to the prosecution’s case. The point that needs be emphasised is that the presumption under Section 149(d) of the Evidence Act applies against the prosecution because it amounted to withholding of critical evidence.

The principle operates where a party has in fact withheld any particular piece of evidence and failed call any direct evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See Bello v. Kassim (1969) NSCC 228 at 233.

The fact that the Respondent called PW1 and 2 whose evidence was based on what Sgt Ojo told them instead of calling Sgt Ojo himself, which clearly amounted to withholding evidence and thereby provokes the presumption of the law against the Respondent that if called such evidence would have been unfavourable to the Respondent. It further renders the evidence against the Appellant fall short of the standard of proof in criminal cases, which is beyond reasonable doubt.” The case giving rise to this appeal is almost on all fours with this case cited hereinabove. Why was the Appellant arrested?

What led to his arrest? What made J.T.F. Civilian (aka Yam Bula) and his vigilante group to arrest the Appellant? Where is the recorded confessional statement? Is it the same statement as with the content of Exhibit A? I believe that all these grey areas of ambiguity would have been settled if the prosecution had called J.T.F. Civilian (aka Yam Bula) as a witness. ​ I still do not know the importance of Exhibit B in this instant case. Why did the prosecution tender the picture of a deceased person who they claim is one Abubakar when the Appellant is not standing trial for murder?

Even if they argue they tendered Exhibit B to prove that the said Abubakar died during the robbery attack carried out by the Appellant and his co-accused, I do not see how they successfully established it. I do not know what the prosecution was trying to establish by calling PW2 to testify as a witness. From the testimony of PW2, he only identified Exhibit B as the picture of the Abubakar alleged to have been killed during the robbery attack. PW2 did not know the Appellant. He was not at the scene of the robbery. He was informed about everything he knows about the case.

If this was a murder case against the Appellant, I will know that the reason PW2 was called as a witness was to establish the first ingredient in proving murder which is that there is a deceased person. But in this instant case, the testimony of PW2 and Exhibit B did not establish any of the ingredients of armed robbery and conspiracy. Looking at the judgment of the learned trial judge, I do not know and I cannot see the evidence he relied on in convicting the Appellant of count 2 of the charge.

The learned trial judge clearly stated at page 39 of the Record of Appeal that he relied on the exhibits in reaching this finding. The two exhibits before the Court were the confessional statement and the picture of a deceased person called Abubakar. Which of the ingredients of the offence of armed robbery did the prosecution prove? Did they prove that there was a robbery or series of robberies? Did they prove that each robbery was an armed robbery and that the accused person was the robber or one of those who participated in the armed robbery?

The prosecution had relied on the confessional statement wherein it was alleged to have been stated by the Appellant that he took part in a robbery operation at Durumi, Abuja where three people were killed. Is there any evidence before this Court to prove that indeed a robbery operation took place at Durumi, Abuja? Did the prosecution ascertain that indeed there was a robbery at Durumi, Abuja and the Appellant participated in it? Was the trial Court right in convicting the Appellant solely on the confessional statement? In the case of MUSA VS.

STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F; 318 PARAS F – G, it was held per Eko, JSC that: “Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions.

That is: (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statement of fact made in it true as far as can be tested? (d) Is the confession possible? (e) Is it consistent with other facts which have been proved?” In the case of ONYENYE VS.

THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 AT 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained under duress and those merely retracted as follows: (1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non- recognizable legal ways, there would be need for a trial within trial. (2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.” Reading through page 30 of the Record of Appeal where the defence of the Appellant is contained, which I reproduce hereunder as follows: “My hands were then tied behind me and my body hung on a plank above my head.

I was then beaten with sticks and machetes till I became unconscious before I was released. Water was poured on me and I regained consciousness. They threatened to kill me that whatever they said I should say it. While the knife was still placed on my neck, they asked me to say that it was myself, Celestine and Kenneth that killed Abubakar. As I repeated what they said, they brought their phone and recorded what I said. That is all I know here. I do not know those people that came and arrested me. I was then brought to Kuara Police Station and handed over to the Police.

At Kaura the police asked whether the allegation was true and I denied it. I was then sent to police cell. For 2 to 3 weeks nobody said anything to me. After that I was released with a directive that I should sign a certain document, but I refused. The police then took a stick and started hitting me at my joints, both hands and legs. I still refused and I was brought to Kafanchan Police headquarter, I was taken to Court.

I did not write Exhibit A and neither thumbprinted same… I am not the marker of Exhibit A.” From the above statement made by the Appellant, it is clear that he did not retract the confessional statement by merely denying ever making same. The Appellant stated that he did not voluntarily thumbprint the said confessional statement as he was detained and severely beaten. The trial judge had stated that he was “fully convinced that it is a voluntary confession here” (page 38 of the Record of Appeal).

How did the trial Court reach such a decision without conducting the trial within trial which is a duty and obligation placed on him by the law when the issue of involuntariness in making a confessional statement is raised? In the case of OFORDIKE VS.

STATE (2019) 5 NWLR (PT. 1666) PAGE 395 AT PAGE 424 PARAS H – C, it was held per Nweze, JSC that: “in this sort of situation, the trial Court is under obligation to conduct a trial within trial (also known as voire diew or mini trial) to determine the veracity or otherwise of the claim… the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable.

The cases on this point are legion; they are countless. OGUDO V THE STATE (2011) 12 SC PART 1 PAGE 71, THE STATE V RABIU (2013) 8 NWLR PART 1357 PAGE 585.” The law placed a duty on the trial Court to conduct a trial within trial when the issue of involuntariness is raised with regard to confessional statements. In this case, this is not a matter of resiling, denying or retracting the confessional statement as held by the learned trial judge and as argued by the Respondent in their brief of argument.

The Appellant had stated clearly that he was beaten, never made the statement and neither did he thumbprint same. I therefore hold that the learned trial judge failed to discharge the responsibility and obligation placed on him by the law to order a trial within trial to eliminate the issue of involuntariness.

Also, the learned trial judge failed to test the veracity of the confessional statement as stated in the case of MUSA VS. STATE (SUPRA). The said robbery that took place in Durumi Abuja was never verified and no weapon was ever recovered from the Appellant. The learned Appellant’s counsel has raised the point that there ought to be an identification parade since there is an issue regarding the identity of the Appellant since he was not arrested at the scene of the crime but was arrested several months after the crime was committed. In the case of OKOSI VS.

STATE (1989) 1 NWLR (PT. 100) PAGE 642 AT PAGE 657 PARAS F – G, the Supreme Court held that: “The object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and be seen to be fair, so that it will not be seen that the attention is directed to the suspected person instead of equally to all person paraded.” In the case of SEUN VS.

STATE (2019) NWLR (PT. 1673) 144 AT PAGE 156 PARA D – F, Supreme Court held that identification parade is not necessary where the victim or witness recognizes the offender or accused person as one of those who robbed him as the matter was still fresh in his mind. In the case giving rise to this appeal, there is no single witness that could ascertain that they were at the scene of the robberies neither did any eye witness place the Appellant or someone that could possibly be him at the scene of the crime.

I do not think that the issue of identification parade is relevant and necessary in the instant case since nobody saw anybody at the said robbery/robberies. In the case of OLADEJO VS. STATE (2018) 11 NWLR PART 1630 PAGE 238 @ 246 PARAS F-G, it was held per Galinje, JSC that: “Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence.

A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act by unlawful means… To constitute an offence of conspiracy, the prosecution must prove: (1) That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. (2) Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement. (3) That each of the accused individually participated in the conspiracy.” Did the prosecution prove the ingredients of conspiracy against the Appellant?

I have read through the records of appeal. The Supreme Court gave an apt description of the offence of conspiracy in the case of ADESINA KAYODE VS. THE STATE (2016) LPELR – 40028 (SC) P. 47, PARAS. A – F, where Ariwoola, JSC held: “Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them. See Folorunsho Alufohai Vs. The State (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt. 765) 198.

In order to secure conviction on a count of conspiracy, the prosecution must establish the elements of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy. However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offense. See generally, the cases of OMOTOLA & ORS VS. THE STATE (2009) 78 NWLR (PT. 1139) 148; (2009) 2 – 3 SC 7 and OBIAKOR VS.

STATE (2002) 10 NWLR (PT. 774 – 776) 612 AT 625. In AMACHREE VS. NIGERIAN NAVY (2003) 3 NWLR (PT. 807) 256, the Court held the view that it was improper for the prosecution to rely on the evidence in proof of the commission of the substantive offence by an accused person and others to infer conspiracy. At any rate, an offence of conspiracy can be committed where persons have acted either by agreement or in concert. Therefore, bare agreement to commit an offence is sufficient and the actual commission of the offence is not necessary.

In this case, I cannot see any iota of evidence led by the prosecution to show that there was a conspiracy to commit the offence of conspiracy to commit robbery between the Appellant and the two people alleged to be at large. There is no witness and no testimony on record that even show that the Appellant and the two persons at large even committed a robbery together or had a special relationship together prior to the robbery. In the testimony of the Appellant during his defence, he said that: “they asked me what connected me with those two people.

I said I knew them because I had been seeing them in our area.” Did the prosecution establish that a relationship exist between the Appellant and the two at large? I cannot see anything in proof of that. It is totally wrong of the prosecution to rely on the evidence they led to prove the substantive offence of armed robbery to also prove the offence of conspiracy.

I could not help but consider the portion of the trial Court’s judgment contained on page 38 of the Record of Appeal where the learned trial judge held that: “Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law.

By the said abscondment by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere somehow and I so hold.” This is sheer speculation and this is an act that is forbidden in our Courts. There is no evidence linking the Appellant and these two persons at large. There is no evidence to show that efforts were even made to apprehend these two persons claimed to be at large because at least, it was J.T.F.

Civilian (aka Yam Bula) that arrested the Appellant and the IPO, PW1 never made mention of trying to track down this two persons claimed to be at large. Since there is no evidence led to prove the offence of conspiracy, the learned trial judge has no power in law to fill the lacuna in the prosecution’s case with speculations and suspicions. In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held that: “it is not part of the assignment of any Court to speculate. It must avoid it.” In the recent case of IKEMEFUNA & ORS VS.

ILONDIOR & ORS (2018) LPELR – 44840, it was held that: “The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.” See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65. Even if the learned trial judge arrived at this conclusion based on circumstantial evidence, it still had to meet up with the requirement of the law.

The law is trite that where the evidence on ground is mainly circumstantial, the surrounding circumstances have to be examined together for the inference to be arrived at that the Accused/Appellant committed the offences charged. Where such evidence is found to be positive compelling and with mathematical precision and point to the guilt of an accused person, the prosecution had discharge the onus of proof on it. See generally, the cases of SUNDAY UDOR VS. STATE (2014) LPELR – 23064 (SC); (2014) LCER – 27897 (SC), OGIDI & ORS VS. STATE (2005) LPELR – 2303 (SC) Pp. 10 – 11, PARAS. F – B.

The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the prosecution has proven its case beyond reasonable doubt, but if there is doubt whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person. See the cases of IBEH VS. STATE 1997 LPELR – 1389 (SC) and ABBEY VS. STATE (2013) LPELR – 20732 (CA).

In the circumstance, I am of the firm belief and opinion that the Prosecution failed woefully in proving the offences for which the Appellant was charged before the trial Court beyond reasonable doubt. This appeal is therefore allowed and the conviction of the trial Court is hereby quashed. The Appellant is hereby discharged and acquitted and he shall be released from prison custody forthwith.

AMINA AUDI WAMBAI, J.C.A.: I agree.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Jigawa State High Court in Charge No. JUD/20C/2000, delivered on 30th August, 2004 by Hon. Justice Tijani Abdullahi, wherein the learned trial Judge convicted the Appellant, together with other accused persons, for offence of Criminal Conspiracy and Armed Robbery, and sentenced him (with the others) to death by hanging.

At the lower Court, Appellant (as 4th Accused person) was charged, with 8 other accused persons, as follows: FIRST HEAD OF CHARGE: ​”That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act to wit: mounting a road block with logs of wood, attacking one Abdullahi Daiyabu Sara and one Dr.

Umar Hamman and robbing them of the sum of Thirty thousand, six hundred Naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in-their vehicle with Registration No.

AA 159 GRM and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No.9 of 1991.” 2ND HEAD OF CHARGE: “That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours- at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act, to wit: robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No.

XC 191 GME, the sum of thirty-nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No. 9 of 1991.” 3RD HEAD OF CHARGE: “That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery by blocking the road with logs of wood among yourselves with sticks, a dane gun and matchets and other dangerous weapons and attacking and robbing one Abdullahi Daiyabu Sara and one Dr.

Umar Hamman of the sum of Thirty thousand, six hundred Naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in their vehicle with Registration No.

A.A. 150 GRM and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended to Decree No. 9 or 1991.” 4TH HEAD OF CHARGE: “That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No.

XC 191 GME, the sum of Thirty-nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No .9 of 1991.” (See Pages 57 and 58 of the Records) After hearing the case and considering the evidence and the addresses of Counsel, the trial Court held, as follows: “In the light of the foregoing, I hold, without any hesitation, that all the accused persons, having confessed the commission of the offence can be convicted, their retraction notwithstanding.

It is pertinent at this stage to pause and state that, apart from the confessional statements of the accused persons, there is the evidence of PW1 and PW6. PW1 gave a graphic details of how he and his friend were robbed. The evidence of PW1 that he was able to see and identify those who robbed them, because the full light of the headlamps of his car was on, is further confirmed or corroborated by the evidence of PW6, DSP Asuquo who led the team of Policemen who went to the scene of the offence. Both the two witnesses strike me as truthful witnesses and I believe their testimonies.

In the final analysis and in the light of the totality of the evidence adduced by the prosecution, I make the following findings of facts: (1) That on 31st day of August, 1998, the accused persons met at Gadar Maiwa Market and the purpose of their meeting was to arrange where they would go and mount a road block so as to rob people of their belongings. (2) That the meeting at Gadar Maiwa where the accused agreed among themselves to commit the offence of armed robbery had the following people in attendance:- (1) Ahmadu Oga; (2) Ahmadu Miya; (3) Dahiru Kiyawa;

(4) Mohammed Adamu (alias Baba Duppukel); (5) Ya’u Sale (alias Doctor); (6) Adamu Mohammed; (7) Musa Sale (8) Mamman Rabi’u (alias Doctor) (9) Abdullahi Mohammed Dagaje; (10) Mamuda;

(11) Sule and (12) Ahmadu. (3) That in furtherance of their agreement, the accused persons went to Birnin Kudu – Kano High Way at a Village called Dagaje and mounted a road block. (4) That the vehicle in which PW1 and his friend were inside came to the road block mounted by the accused persons and could not pass through it. (5) That the vehicle of PW1 stopped at the said road block and that some of the accused persons rushed to the said vehicle and demanded (sic) money from PW1 and his friend. (6) That when PW1 stopped at the roadblock he put the full light of his car on in order to see clearly what was the position of the place. (7) That through the beam light of his car he saw a lot of people ranging from 15 to 20 dressed in tattered rags holding dangerous weapons such as guns, daggers and sticks. (8) That PW1 was brought out of the car by some of the accused persons and was also slapped. (9) That when he was dragging not to come out of the car 2nd accused fired a shot at the windscreen of his car. (10) That the 3rd accused struck him with a dagger on the head and he (PW1) sustained injuries on the head. (11) That the accused persons forcibly took away the sum of N30,000.00 from him in N50, denomination.

They also took away N600 and £1,500 pounds sterling. (12) The accused also robbed PW1, his friend and other victims of the robbery, their clothings including two sets of big gowns and three sets of Kaptans, a pair of shoes and about four or five caps. (13) That when the accused persons were robbing their victims, policemen in a pick up came and fired some shots in the air and the accused persons took to their heels. (14) That as the victims were trying to make statement at B/Kudu Police station, the first accused who was arrested with the brief case of one of the victims whilst trying to board a vehicle at Kwanar Babaldu was brought to the Police Station. (15) That it was the 1st accused who led the police to the places where the other accused persons were arrested, except the 9th accused person who was arrested some months later. (16) I therefore find as a fact that the prosecution has proved all the ingredients of the four heads of charge against all the accused persons.

I therefore find all the accused persons guilty as charged and convict them accordingly. (See Pages 78 to 80 of the Records of Appeal). Dissatisfied with that decision, Appellant filed this appeal, as per the Amended Notice of Appeal, dated 4/4/2021, which formulated 4 grounds of appeal. Appellant filed his brief arguments on 15/12/21 which was deemed duly filed on 20/9/2022 – the date this Appeal was heard.

He donated three issues for the determination of the appeal, as follows: (a) Whether the prosecution has proved its case beyond reasonable doubt based on the contradictory testimonies of PW1, PW3 and PW6 and whether these contradictions contained in the testimonies of PW1, PW2 and PW3 were not sufficient to raise reasonable doubt in the mind of the trial Court to warrant acquittal. (Ground 2) (b) Whether the trial Court in relying on Exhibits 14 & 15 (1D1 & 1D2) being purported confessional statements of Appellant in the course of the proceeding and the record of the Court, demonstrated and strictly apply (sic) legal test required by law regarding conviction based on confessional statement, and whether adequately considered all the defence (sic) raised by the Appellant in his defence. (Ground 1) (c) Whether the prosecution by credible evidence discharged burden of proof on it to warrant a conviction. (Ground 3) The Respondent filed its brief on 13/4/2022 (which was also deemed duly filed on 20/9/2022).

Respondent distilled a sole issue for determination, namely: “Whether the lower Court was right to have convicted and sentenced the Appellant based on the confessional statement of the Appellant, together with the evidence of PW1, PW3 and PW6.” Arguing the appeal, learned Counsel for the Appellant, Baba Shehu Ahmad, Esq., on issue 1, said there were contradictions in the evidence of PW1, PW3 and PW6 and same were sufficient to raise reasonable doubt to warrant the acquittal of the Appellant.

Counsel relied on the case of Dagayya Vs State (2006) NWLR (Pt.980) 637 for the meaning and effect of contradictory evidence. On the evidence of PW1, Counsel referred us to Page 14 of the Records, where Counsel quoted PW1, as saying: “The 4th accused, I did not see him at the scene of the incident.

There were other people by the roadside, but could not catch a glimpse of the 4th accused person…” On the other hand, Counsel said the PW6 said, under cross-examination: “The Ex-Chairman was able to identify all the accused persons… I based my opinion on their statements and identifications by the Ex-Chairman as well as driver of the long lorry conduct.” (Page 28 of the Records of Appeal). Counsel said there was no re-examination on that cross-examination to reconcile the testimonies of PW1 and PW6.

Counsel also relied on the case of Attah Vs State (2010) LPELR 597 (SC), Agbo Vs State (2006) 6 NWLR (Pt.977) 564 and Dagayya Vs State (supra), on the effect of contradictions in evidence in a criminal trial. On issue 2, Counsel said the trial Court was wrong to rely on the Exhibits 14 and 15 (confessional statements) to convict Appellant. Counsel also listed the ingredients of offence of conspiracy and of armed robbery and submitted that the Prosecution did not establish the same, as required by law.

Counsel relied on the case of Aituma Vs State (2006) 10 NWLR (Pt.989) 468, Sunday Vs State (2021) ALL FWLR (Pt.1095) 2435, (among other cases). Counsel said that the Exhibits 14 and 15 were extracted by torture and so were not voluntary; that Appellant had denied the contents as being true.

He relied on the case of Simeon Vs State (2018) 13 NWLR (Pt.1635) 148, where my Lord Kekere-Ekun, JSC, said: “It is however the practice of the Court not to act on a confessional statement without first testing the truth of the statement by seeking any other evidence, be it slight, that make it probable that confessional (statement) is true.” Counsel said the Court must look for corroborative evidence to support the confessional statement.

He relied on Akpan Vs State (1990) 7 NWLR (Pt.160) 101, Obosi Vs State (1965) NWLR 1999, Bature Vs State (1994) 1 NWLR (Pt.320) 267, Ofordike Vs State (2019) LPELR – 46411 (SC), C.O.P. Vs Alozie (2017) LPELR – 41983 (SC). Counsel argued that the trial Court had a duty to consider all the defences raised by the Appellant, and urged us to do so, relying on Uluebeka Vs State (2000) LPELR – 3354; Umani Vs State (1988) NWLR (Pt.70) 274; Garba Vs State (2007) LPELR – 1308; Olayinka Vs State (2007) LPELR – 2580; Edibo Vs State (2007) LPELR – 1012 (SC); Gabriel Vs State (1989) 5 NWLR (Pt.122).

He added that even if the defence was weak, foolish or contradictory, the Court was still duty bound to consider the same – Oladipo Vs State (1993) LPELR – 2549, Shalla Vs State (2007) LPELR – 3034. Counsel further said that the totality of the evidence led could not be used to convict Appellant, because his guilt was not certain, as it was not proved beyond reasonable doubt. He relied on Ogu Vs C.O.P. (2018) ALL FWLR (Pt.928) 31.

He argued that the trial Court did not properly evaluate the evidence and that it made perverse findings; Counsel said that same should be interfered with by the Court and reversed. He relied on Oyedeji Vs Akinyele (2002) 3 NWLR (Pt.755) 616, State Vs Ajie (2000) 11 NWLR (Pt.678) 449. On issue 3, Counsel said the Prosecution did not discharge the burden of proof to warrant Appellant’s conviction. He relied on Section 135(1) (2) of the Evidence Act, 2011, on the standard of proof. He asserted again that the conspiracy was not proved and that critical witnesses were not called.

He relied on Adamu Vs State (2019) LPELR – 46902 SC; Amachree Vs Nigerian Army (2003) 3 NWLR (Pt.807). Counsel added that the refusal or failure to call the said critical eye witness(es) amounted to withholding of evidence, and urged us to invoke Section 167(d) of the Evidence Act, 2011, against the Respondent. Counsel urged us to resolve the issues for the Appellant and to allow the appeal.

The Respondent’s Counsel, Aisha Ado Abdullahi (Miss.), arguing their lone issue, submitted that the lower Court was right in convicting the Appellant on all the four counts of the charge, relying on the confessional statement he made and testimonies of PW1, PW3 and PW6. She relied on the case ofOfordike Vs State (2019) 5 NWLR (Pt.1666) 395 at 399 – 402, on the effect of confessional statement and what constitutes a confessional statement.

Counsel referred us to what Appellant said at the trial-within-trial to admit the said confessional statement; that, under examination in chief, he (Appellant) said: “What is in the statement is not true. The statement was not read to me.

Bala Umar held my finger and thumb printed it on the statement.” And under cross-examination: “It was the first day that we were taken to Dutse CID that my statement was recorded.” (See Page 33 of the Records) Counsel said that the above showed that Appellant was no longer objecting to the statement he made on grounds of involuntariness, but that he retracted the statement; Counsel said that by the case of Ofordike Vs State (Supra) the statement can still be admitted once it is based on the issue of not making the statement.

Thus, Counsel said the trial Court was right to admit the statement after the trial-within-trial and to rely on it for the conviction of the Appellant. She referred us to the ruling of the trial Court in admitting the said statement, when it said: “I have no doubt in my mind that the accused were cautioned before their statements were recorded.

They were not only cautioned but voluntarily made their statements…” (Page 36 of the Records) Counsel said that even without the said confessional statement, the lower Court still had sufficient evidence to convict the accused persons that the testimonies of PW1, PW3 and PW6 were strong on the Issue and the same were not contradictory as alleged by the Appellant’s Counsel. ​ Counsel said there was no contradiction as PW1, who did not identify Appellant, later did so, when invited to the Police Station as investigation progressed.

Counsel further argued that not all the person’s arrested were tried as some were discharged at the Police Station in the course of investigation; that PW6 had said that those that owned up the charge were the ones taken into custody and later tried; she added that, by law, only material contraction in evidence can affect the decision of the lower Court. On the burden of proof, Counsel said that the Prosecution proved the charge, beyond reasonable doubt; that the ingredients of the offence were established.

She relied on the case of Sunday Vs State (2021) ALL FWLR (Pt.1095) 2435 at 2450 for the ingredients of armed robbery, namely: (a) That there was, indeed, a robbery or series of robberies; (b) That the robbers were armed with dangerous weapons; and (c) That the accused person was the robber or one of them. Counsel said that the above elements of the offence were established in this case, and urged us to dismiss the appeal.

RESOLUTION OF THE ISSUE I shall consider this appeal on the 3 issues donated by the Appellant, which I think could be summarized into one namely: “Whether the trial Court was right to convict the Appellant of involvement in the conspiracy to rob and the armed robbery, relying on the retracted confessional statement and the evidence of PW1 and PW6 (alleged to be contradictory by the Appellant).” The above summarized issue tends to agree with the context of the lone issue donated by the Respondent.

Appellant did not raise any issue against the ground 4 of the appeal, which alleged that the judgment was against the weight of the evidence. The said ground 4 of the appeal is, accordingly, struck out, same having been abandoned. There was no doubt that there was a robbery on or about 1st September, 1998 on Birnin Kudu – Kano Highway, at Kwanar Dogaji Village in Birnin Kudu Local Government, whereof the robbers, who were armed with dangerous weapons, robbed victims, including PW1 of their valuables.

The question whether the Appellant was one of the robbers, was answered in the affirmative by the learned trial Judge, who founded Appellant’s conviction on the confessional statement (Exhibit 15) he was said to have made to the Police, as well as the evidence of the eyewitnesses – PW1 and PW6, in particular. Appellant in this appeal had faulted the reliance of the Court on the said confessional statement (which he said was induced and obtained by torture, and he had since retracted it).

Appellant’s Counsel also argued that the evidence of PW1 and PW6 were contradictory and could not sustain the conviction of Appellant for the conspiracy and for the armed robbery. Counsel argued that the PW1 had stated, on page 14 of the Records of Appeal, that he did not see the Appellant at the scene of the robbery, whereas, the PW6, under cross-examination, said: “The Ex-Chairman (PW1) was able to identify all the accused persons… I based my opinion on their statements and the identifications by the Ex-Chairman as well as Driver of the long Lorry and the Conductor…” (Page 28 of the Records).

I cannot however see any conflict or contradiction in the evidence of the two witnesses, listed above. But I shall nevertheless subject the said evidence by the two, which appear to complement each other, to scrutiny. ​ PW1 (Abdullahi Daniyabu) had said more than what learned Counsel for Appellant lifted. Apart from saying: “The 4th accused (Appellant), I did not see him at the scene of the incident.” Page 14 lines 12 & 13. The PW1 had also, said: “There were other people by the roadside, but I could not catch a glimpse of the 4th accused person.

It was the 1st accused person who was arrested at Babaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes… and based on interrogation and in my presence he was able to tell us that he was part of that robbery incidence (sic) and he was given a share of N13,000 and he was asked of the pound sterlings was taken away by his colleague.

When he was asked who was his colleague, he said it was Dahiru… (9th accused) person… later on, was invited to the Police Headquarters, Dutse, and the accused persons where (sic) brought out and I identified them as those who robbed me on the day of the incident.” (See Page 14 (lines 13 to 27) of the Records) Under cross-examination PW1 said: “Yes, I gave a graphic story of what happened on the day of the Robbery. I saw an army of people ranging between 15 and 20, but I did not specifically state their number. After I was beaten I was asked to lie down.

It was after I was lying down that they removed these things from my car, after one of them had destroyed the windscreen of the car… Though I was lying down my eyes were not on the ground. Was watching to see what they were doing… The house for which the things were asked to be taken by their conversation must be on the western side of road… I immediately identified him (1st accused) as one of those who robbed me. And also identified the arrest (sic) of the accused persons when they were subsequently arrested.

They were brought out and I was asked to identify them.” (Page 17 of the Records) I think the above evidence of the PW1 were consistent, as the robbers were many, including those on the roadside, and he said he was able to identify them as they were arrested, as the investigation progressed, with the arrest of the 1st accused who led the Police on to the other accused persons. But the fact that PW1, clearly, said he did not see or catch a glimpse of the 4th accused (Appellant) needs some serious consideration.

PW6, a Senior Police Officer, Effiong Asuquo (DSP) had told the Court: “Policemen at Babaldu Police Post brought the 1st accused to the Police Station with one black briefcase (handbag). He was arrested while boarding a vehicle to Ningi, when the briefcase was identified by the conductor of the lorry that was robbed… The former Chairman, and the Driver of the lorry, identified the 1st accused as one of those that robbed them… We questioned (him) about the others who took part in the Robbery, and he said they all ran away, and we asked him how we could get them.

He informed us that some would go to Sara Market that day… We went to that market with the 1st accused and we disguised his appearance so that they would not recognize him… he saw three of them who he identified as members of the gang. We arrested them… At the park, he saw one of them and we arrested him… We brought all of them (5) to the Police Station and they all made statements owning up the crime… We were able to arrest four of them as pointed to us by the 1st accused…”

See Pages 26 to 27 of the Records. Apparently, PW6, also a witness of the Robbery, as he led a team of Policemen that trailed and eventually dislodged the Robbers. He had earlier, in his evidence in chief, given account of how they monitored the robbers, undercover and shot in the air to scare them away from the victims, as it was dangerous to open fire at them, for fear of hitting the victims! Under cross-examination, PW6 said: “A driver who was able to escape the attack of the armed bandits informed my men at the counter. He took 9 of my men in the Land Rover to the scene.

The Ex-Chairman was able to identify all the accused persons. We did not conduct an identification parade because the event in this did not call for that. I based my opinion based on their statements and the identification by the Ex-Chairman as well as Driver of Lorry and the conductor. We were close to them. The Robbery happened between 2.00am – 3.00am. When we went to the scene, the two head lamps of Honda Car were on.

There was sufficient light in the placed to enable the accused being identified.” (Page 28) Like the other accused persons, the Appellant allegedly made confessional statement to the Police, (which he later retracted). The law is trite that a Court can still convict an accused person even on the basis of his confessional statement, alone, though the statement is denied or retracted at the trial, once the Court adjudges same to have been given, voluntarily. Also, where there are other pieces of evidence at the trial to corroborate the confessional statement, the Court can convict on the same.

The authorities on this are replete. See the case of Sani Vs State (2020) LPELR – 53905 (SC), where it was held: “It is certainly not the law that a Court cannot convict an accused solely on his confessional statement if found to be a clear, positive and direct admission of the commission of the offence with which the accused is charged.

This Court has endlessly held that where, as in the case at hand, an accused resiles from his extra-judicial statement, he may still be convicted on the basis of the very voluntary statement if same is corroborated and shown to have indeed been made freely by the accused. The Court has, over the years, imbibed the tests laid in R v. Sykes (1913) 8 CAR. 233 at 238 and admonished trial Courts to obey the rules outlined therein before convicting and accused. See Afolabi v. State (2016) 4 SC 86 at 90, (2016) 11 NWLR (Pt. 1524) 497, Sahalatu Shazali v.

State (1988) LPELR – 3040 (SC) (1988) 5 NWLR (Pt. 93) 164 and Rasheed Lasisi v. The State (2013) LPELR – 20183 (SC); (2013) 9 NWLR (Pt. 1358) 74.” Per MUHAMMAD, JSC In the recent decision of this Court in the case of Gambo Sule Vs Kano State (2022) LPELR – 57542 CA, we held as follows: By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence.

The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Hussein Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person.

We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made.

See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked.

See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” Appellant’s statement was admitted as Exhibit 15 after trial-within-trial as his recorded statement.

At the trial Court, Appellant testified as DW4 and said that he was not arrested by the Police, as he took himself to the Police, because of the arrest of his wife; that the Police had been looking for him and his wife in connection with the offence and had arrested his wife; that the Police released his wife, when he showed up; he said that he was living in the Village, prior to his arrest; he said that the Police had asked him about how a big log of wood found very close to his house, was moved onto the main road; he told them that he did not know, but the Police did not believe him, insisting that there was no way that such a big log of wood could be moved to the main road without his knowing it; he said that he was beaten and tortured to admit the offence; that two of his teeth fell off as a result of the beatings, that he was asked questions about himself, family, the log of wood and how it was moved to the road; he said that CPL.

Bala (PW3), who recorded the answers later forced him to thumbprint on the paper he wrote on and that was after threats to kill him, as a dog, if he failed to sign or thumbprint. Appellant also told the trial Court that the log of wood was in the farm of his neighbour, very close to his house; that his house was very close to the main road. (See Pages 68 to 69 of the Records) ​ Of course, the trial Court did not believe the denials by Appellant. The confessional statements of some of the accused persons had also implicated him (Appellant) as they mentioned him as one of them.

The 6th accused (Adamu Muhammed) in his statement had said: “… We were fourteen… in number and hide (sic) in a nearby bush close to one house belong to one old man. I don’t know his name, who later followed us and robbed… We carry the wood and block the road. Same of us were wearing black clothes holding touch lights and dane guns.

Later one small vehicle came and (sic) stop the vehicle brought out the people inside the vehicle and took them aside the road and robbed them… Later one big Lorry carrying motor tyres came and stop at the roadblock and we robbed them some money from the passengers…” (See Pages 75 and 76 of the Records) But the 9th Accused (Dahiru Buba Kiyawa) said: “… We got some log of wood and block the express way along Birnin Kudu – Kano. Immediately we block the road a small vehicle… came and could not be able to pass.

The driver then stop and some of our people asked the two men inside the vehicle to come out of their vehicle and lay (sic) down by the roadside and our people started searching the Peugeot vehicle a lorry came along and could not get way to pass he then hit the Peugeot vehicle and fell down. We ran to search the lorry inside bush… All the people so far arrested in connection to this robbery actually took part, exception of one-man name (sic) Abdullahi.” See Page 77 of the Records.

It would appear Appellant was linked to the robbery by reason of the location (scene) of the robbery, which was in his village, and near his house, and because of the use of the log of wood in his compound (which Appellant said was in a farm near the house, and his belonged to neighbour).

The circumstance of the use of the log of wood from his compound or farm near his house, to block the road appeared to have fueled the strong suspicion of the prosecution that 4th Accused was part of the robbery. ​ But such deduction and suspicion, in my view, would be very dangerous to found Appellant’s conviction, in the face of the evidence of the PW1, an eye witness, who clearly stated the roles played by each of the robbers (except Appellant) at the scene; and he clearly identified them, except Appellant!

In his evidence in-chief, he said: “If I see those who attacked me that time, I would recognize them. They are now in the Court room. I can identify each of them.” (Page 13 of the Records) PW1 was permitted to get close to the dock to identify the accused persons, and he did, as follows: “Pointed the 9th accused person, he is the person who dipped his hand inside my car, held my collar, slapped me and brought me out of the car. In the process of coming out of the car, the 1st accused person shot a pistol gun on front windscreen of my car.

The 6th accused person struck my head with a sword and the 8th accused person, Muhammed Ahmadu, beat me with a stick. The 3rd accused person on the charge sheet took a very big stone and threw it on the rear glass of the car which led to the destruction of the glass and that gave him the opportunity to remove all our belongings from boot (sic) of the car. The 5th accused on the charge sheet was “compassionate” he was the person who led us to a roadside to lay (sic) down and was asked to look after us so that we did or could not escape, and he pleaded with them to leave us alone.

The 7th accused person along with the 2nd accused were commanding officers of the team and they were sitting by the side of the road giving commands. The 4th accused, I did not see him at the scene of the incident. There were other people by the roadside, but I could not catch a glimpse of the 4th accused person. It was the 1st accused person who was arrested at Banaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes.” (Underlining mine) See Pages 13 and 14 of the Records.

It should be noted that that evidence was given by PW1 in Court, on 17/10/2002, more than 4 years after the commission of the offence and the investigation and that, despite the fact that Appellant was arraigned with the said other accused persons, PW1 still said: “The 4th accused (Appellant), I did not see him at the scene of the incident. There were other people by the roadside, but I did could not catch a glimpse of the 4th Accused person…”

If PW1 had earlier identified the Appellant as one of the robbers at the Police Station, how come he (PW1) did not recognize him (Appellant) in the dock!

I cannot see any evidence from the prosecution that directly linked Appellant to the scene of the armed robbery or commission of the offence. The PW6, did not say anything specific about the 4th Accused person (Appellant); he merely based his testimony on the identification made by the PW1, when he (PW6) said, under cross-examination: “The Ex-Chairman (PW1) was able to identify all the accused persons. We did not conduct an identification parade because the event in this did not call for that.

I based my opinion based on their statements and the identification by the Ex-Chairman as well as Driver of Lorry and the Conductor. We were close to them… There was sufficient light in the place to enable the accused being identified.” (See Page 28 of the Records). It appears neither the Lorry Driver nor the Conductor was called to give evidence in this case, and so there was no direct evidence from the prosecution on identification of the 4th Accused (Appellant) with the offences – of conspiracy and armed robbery!

Of course, the evidence of the co-accused, naming the Appellant as one of them must be taken with caution, as the law warns against relying on such evidence. See the case of Hassan Vs The State (2016) LPELR – 42554 (SC): “It is elementary that in a criminal trial, where an accused person incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against the co-accused.

But if the prosecution, police decides to use the statement against a co-accused, then the prosecution is bound to make the incriminating statement available to the co-accused. See R v.

Afose (1934) 2 WACA p. 115.” Per RHODES-VIVOUR, JSC See also the case of Awo Vs The State (2020) LPELR – 50619 CA, Ajomayan Vs The State (2020) LPELR – 49598 CA and Obinna Vs The State (2021) LPELR – 55847 CA, which states that: A confessional statement of an accused person, implicating or seeking to implicate a co-accused should always be taken with suspicion, as such confessional statement of a co-accused is no evidence against an accused (Appellant) who has not adopted the statement. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, YUSUF & ANOR VS STATE (2019) LPELR 46945 (SC).

And such evidence remains against the person who made the confessional statement.

See MBANG VS THE STATE (2009) 18 NWLR (Pt. 1172) 157, ALARAPE VS STATE (2001) 2 SC 114; 2001 5 NWLR (Pt. 705).” Even then, the confessional statement of one of the Accused persons (9th Accused) appeared to have clearly exonerated the Appellant, when he added: “All the people so far arrested in connection with this robbery took part, exception of one-man, name (sic) Abdullahi.” (Page 77 of the Records of Appeal) Appellant was consistent when he told the trial Court of his innocence, despite all the beatings and torture he said were meted out to him; he said that he was forced to sign (thumbprint) a statement prepared by CPL.

Bala, after threatening to kill him (Appellant). The said statement was admitted in evidence as Exhibit 15 by the trial Court, after a trial-within-trial. Ground one of the Amended Notice of Appeal was on the reliance of the trial Court on the purported confessional statement to convict and sentence him to death. The said extra-judicial statement of Appellant, which was admitted as Exhibit 15 is reproduced in the Records of Appeal, in its Hausa version (Pages 95 – 97 of the Records).

I have not seen the English translation of said statement on the records (which Appellant’s Counsel said was not signed), to understand how Appellant confessed to the crime! But even if Appellant had confessed to the crime, in the circumstances of his beatings, torture and threats to his life as narrated by him on pages 46 to 47 of the Records, such confession cannot be voluntarily! The said evidence of beatings and torture (which resulted in his losing two front teeth), and threat to life was never rebutted by the prosecution, and Appellant was never cross-examined on same!

See page 47 of the Records, which records the only cross-examination of Appellant as: “The name of our village is Dagaji”. I had earlier held that the law permits a trial judge to convict an accused person on the basis of a confessional statement alone, provided the same was made voluntarily and not induced. See Bala Vs State (2022) LPELR-56737 (CA). In this case, I do not think Appellant’s alleged confessional statement was made voluntarily. The trial Court therefore erred to have held at the trial that it was voluntarily made.

The law is also to the effect that a confessional statement can still be used to convict an accused person, even if retracted or resiled, provided there is/are some evidence before the Court to corroborate the said confessional statement. See Uhara Vs The State (2021) LPELR – 55512 (CA), FRN Vs Iweka (2011) LPELR – 9350 (SC), Husseini Vs The State (2022) LPELR – 57021 CA, Sule Vs Kano State (2022) LPELR – 57542 CA, Sani Vs State (2020) LPELR – 53905 (SC).

I have not seen any evidence to corroborate the alleged confessional statement. ​ The offence was not therefore proved beyond reasonable doubt against Appellant, as the learned trial Court appeared to have lumped all the accused persons, together, when appraising the Prosecution evidence, as to the identity of the Appellant and involvement in the offences, charged. To that extent, I think the 4th Accused (Appellant) was wrongly yoked with the other accused persons. And his conviction appeared to be founded on speculation and suspicion.

By law, suspicion, no matter how strong, cannot replace the evidence needed to found conviction, and any lingering doubt about the involvement of an accused in a crime, has to be resolved in his favour. See the case of Igbikis Vs The State (2017) LPELR – 41667 (SC) and Emesonye Vs The State (2016) LPELR – 40550 CA, where it was held: “…And suspicion or speculation, no matter how strong, cannot lie a conviction, and is not even a basis for trial of the suspect! The authorities abound that one cannot even be charged to Court on the basis of mere suspicion. See Adeniji v.

State (2001) 12 NWLR (pt.730) 375, Theophilus v. State (1996) 1 NWLR (pt.423) 139, Onafowokan v. State (1987) 7 SCNJ 1, The State v. Okpala (2012) LPELR – Okoro v. State (1988) 12 SCNJ 191, Blessing v. FRN (2012) LPELR-9835 CA; (2013) 12 WRN 36, Garba v. State (2011) 14 NWLR (pt.1266) 98.” I can therefore see merit in this appeal, and so resolve the issue for Appellant and allow the appeal. The decision of the trial Court, delivered on 31/8/2004, is therefore set aside, in respect of the 4th Accused person (Appellant herein).

I therefore enter a verdict of discharge and acquittal for him in the said offences of the Conspiracy and Armed Robbery. I order his release from Prison/Correctional Centre, forthwith.

BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the leading judgment of my learned brother, ITA. GEORGE. MBABA, J.C.A and I am in agreement with His Lordship’s reasoning and conclusion allowing the appeal. This appeal once again brings to the fore the need to always subject confessional statements to the six-way test of R V. SYKES (1913) 8 CAR 233 adopted by our Courts in several cases including SIMEON V. STATE (2018) 13 NWLR (PT 1635) 148.

Appellant was wrongly convicted on his very dubiously obtained confessional statement and justice was miscarried, which this Court has a duty to set right. In the event, I also quash the conviction of the appellant by the lower Court and, in its place, allow his appeal and enter an order acquitting and discharging him of the charges against him. I abide by His Lordship’s consequential orders, including the orders for appellant’s immediate release from detention.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.

Judgment

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Aba Judicial Division delivered on the 8th day of March, 2021 in Charge No: A/29C/2020 but substituted with A/84c/2020. SYNOPSIS OF FACTS The Appellant and one other were charged for the offences of conspiracy, kidnapping and unlawful possession of offensive weapons, and were arraigned before a High Court sitting in Aba. They pleaded not guilty to the charge. On the 2nd of November, 2020, a fresh information with a three count charge was filed.

The defendant pleaded not guilty to the charges of kidnapping and unlawful possession of offensive weapons. The prosecution called his witnesses PW1 and PW2 respectively.

In the cause of prosecuting the case and as PW2, Inspector Anthony Samuel of the Nigeria Police Force with the Inspector General of Police, Intelligence Response Team, Force Headquarters Abuja, testified on the 30th of November, 2020, the prosecutor sought to tender through the witness, the confessional statement of the Defendants. ​Learned counsel for the Appellant objected on the ground that the said statement were not obtained voluntarily.

This is because their counsel was not present during the making of the said statement and that the defendants were not videotaped in the cause of making the statement. The Defence counsel argued that the Practice Direction issued by the Chief Judge of Abia State made on the 3rd day of June, 2020, which directed that evidence in trial within trial should be taken alongside the substantive case, and in the address of counsel, while ruling will be taken at the time of judgment for speedy dispensation of criminal justice was unconstitutional and contrary to the provisions of the Evidence Act, 2011.

The prosecution responded that the absence of video or a lawyer while making statements does not affect admissibility and that the Chief Judge by virtue of the practice direction did not abolish trial within trial but rearranged it. The Court below in her ruling on the 8th day of March, 2021 stated that the issue before him was simply whether the extra-judicial statement made by the Defendant could be admitted in evidence, and not the legality or otherwise of the Chief Judge’s Practice direction.

The Court below admitted the confessional statement; and reserved ruling on the probative value to the time of judgment. The trial Court in her ruling also refused to accept the invitation to state a case for the Court of Appeal as raised by the counsel to the Appellant. The Appellant, is dissatisfied with the ruling of the Court below and appealed same. Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 18th of March, 2021 with five (5) grounds of Appeal pages 59–64 of the Record of Appeal.

The Appellant filed his brief of argument on the 8th of July, 2021. It is settled by David Onyeike, Esq. The Respondent filed his brief of argument on the 26th of January, 2022, but was deemed filed on the 27th of January, 2022. It is settled by Chief Uche Ihediwa SAN. The Appellant’s Reply Brief was filed on the 21st of February, 2022, but deemed filed on the 24th of February, 2022. On the 24th day of February, 2022 the parties adopted their respective briefs of argument.

The Appellants distilled five (5) issues for determination viz: “1. whether the learned trial Judge erred in admitting the Appellant’s confessional statement without trial within trial (Ground 1). 2. Whether the Chief Judge of Abia State has the power to enact a law on trial within trial being an issue of evidence, within the framework of the 1999 Constitution on the Federal Republic of Nigeria (Ground 2). 3.

Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not whether the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law 2017 (Ground 3). 4. Whether the trial Judge was right to hold that the Abia State Practice Direction dated 3rd June, 2020 made by the Chief Judge of Abia State cannot be challenged in these proceedings but by a separate suit filed against the Attorney-General. (Ground 4.) 5.

Whether the learned trial Judge was right to refuse to refer the question of the propriety of enactment of the Practice Direction made by the Chief Judge to the Court of Appeal for determination. ​The Respondent distilled five (5) issues for determination viz:

“1. Whether the learned trial Judge was right to reserve ruling on the voluntariness of the Appellant’s confessional statement till the time of delivery of judgment. 2. Whether the Chief Judge of Abia State can validly issue Practice Direction relating to the conduct of Criminal Trials in the High Court of Abia State. 3. Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27 (2) of the Abia State Administration of Criminal Justice Law. 4.

Whether the learned trial Judge was right to hold that the Abia State Practice Direction dated 3rd, June, 2020 made by the Chief Judge of Abia State can only be validly challenged in a suit where the Attorney-General of Abia State is a party. 5. Whether the learned trial Judge was right to refuse to refer the question of the competence of the Chief Judge of Abia State to issue the Practice Direction to the Court of Appeal for determination”. ​The Issues proffered by the Respondent are essentially on adoption of the issues proffered by the Appellant.

I shall therefore consider this appeal based on the Appellant’s issues for determination. ISSUE NO. 1 The Appellant submits that the Court refused the invitation by the Appellant to conduct a trial within trial to determine the admissibility of the confessional statement within the framework of Section 28 of the Evidence Act, 2011 citing STATE V. GAMBO (2019) 2 NWLR (Pt. 1655) 117, ADELANI V. THE STATE (2018) 5 NWLR (Pt. 1611) 18, LASE V. THE STATE (2018) 3 NWLR (Pt. 1607) 502; MUHAMMED V. THE STATE (2019) 6 NWLR (Pt. 1688) 203; ADEBANJO V. STATE (2019) 13 NWLR (Pt. 1688) 121.

Submits that the determination of the voluntaries of a confessional statement before its admission is a necessary concomitant of Sections 28 and 29 (1) and (2) of the Evidence Act, 2011- citing OGU V. C.O.P (2018) 8 NWLR (Pt. 1620) 134, 153–154. That it was wrong not to hold the trial within trial. ISSUE NO. 2: Submits the issue of trial within trial is an issue of evidence, the practice is dictated by the provisions of Sections 28 and 29 of the Evidence Act 2011. ​Submits that under the 1999 Constitution, evidence on the Exclusive legislative list is reserved for the National Assembly.

Therefore the State legislature or a functionary of a State Government cannot purport to legislate on a matter on the exclusive legislative list. That the sharing arrangement in our federalist system of government is operated through the Exclusive and concurrent list. Citing Section 4 (7) of the Constitution of the Federal Republic of Nigeria, He submits that by the arrangement therein a state functionary cannot veer into the domain of the National Assembly that therefore, any legislation or matters of evidence is reserved for the National Assembly.

The Chief Judge was therefore, wrong to have made a practice Direction in relation to matters of evidence. Submit that the Practice Direction is null and void. ISSUE NO. 3: Submits that by virtue of the provisions of Section 17 (2) of the Abia State Administration of Criminal Directive Law, 2017, the commencement date of the statute is 22nd December 2017. Submits that the statute commenced on the 22nd of December, 2017, therefore that the state was obliged to comply with the provisions of Section 27 (2) of the law in taking the statement of the 1st Defendant. But it did not do so in this case.

That in the absence of that, it was impossible to determine whether the prosecution complied with the law before the statement was obtained. Urges Court to hold that the confessional statement is prima facie inadmissible. He cites the case of CHARLES V. FRN (2018) 13 NWLR (Pt. 1635) 50 at 71. ISSUE NO. 4: Submits that rather for the Court below to rule on the objection that the Practice Direction is a necessary warrant for the Court to refuse to conduct trial within trial, the Court abdicated its judicial responsibility.

ISSUE NO. 5: Submits that once a party to the proceedings applies for reference of question of the propriety of an enactment to the Court of Appeal, the provisions of the law is that the Court shall refer the case as a matter of right – citing Section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). ​That the first question sought to be referred to the Court of Appeal has to do with the interpretation or application of the Constitution.

That in the instant case, the question which the Appellant relied on is that the Practice Direction made by the Chief Judge is unconstitutional. RESOLUTION From records, the Court below did not refuse to admit the Appellant’s confessional statement in trial within trial. That fact is misconceived. What the Court below did was to rely on the Practice Direction issued by the Chief Judge of the Abia State High Court. In the High Court, there is what is referred to as the “JUDGES RULES”, a procedural mode of verifying the voluntaries or otherwise of an accused confessional statement.

The purpose of the Practice Direction according to the Respondent is to expedite the trial of Criminal cases, by eliminating the delay occasioned in the proceedings, by stopping the substantive proceeding and conducting a trial within trial, when the Defendant raises objection to admissibility of a confessional statement on the ground that same was not obtained voluntarily. For purposes of elucidation, I hereby reproduce the relevant paragraph of the said Practice Direction.

Paragraph 3: 1 “where a defendant is desirous of objecting to the admissibility of a confessional statement in any criminal proceedings on the ground that same was not obtained voluntarily, it shall not later than 14 days after the service on him of the charge or information or at such later date as the Court may permit cause to be filed and served on the prosecution a notice as in Form 1 that he intends to object to the admissibility of the confessional statement in the course of the trial” Paragraph 4:3 has this to say: “The parties shall thereafter include legal argument with respect to the admissibility or otherwise of the confessional statement in their respective final addresses, and the Court shall on the final judgment in the matter, include its ruling or the admissibility or otherwise of the said confessional statement (underlined for emphasis).” It is my view that the “Judges Rules” and the conduct of trial within trial are just rules of practice not of law, and the Court can make rules in Practice Direction to regulate the conduct of trial within trial.

GBADAMOSI V. STATE (1992) 9 NWLR (Part 266) at 465. ELIYA AND ANOR. V. STATE (2020) LPELR 50318 (CA). Decidedly trial within trial procedure, (as earlier held in this judgment and at the expense of repetition) is not backed by any law, or statutory provisions nor is it rooted in the Evidence Act. It is only a relic carried over from the Common Law Criminal Justice System of Jury trials. The Court below was right to have opted to have its decision wait until the time for judgment to decide to admit or not to admit it.

The Court can at the time of writing judgment, even expunge a wrongly admitted evidence. This issue is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 2: The answer to this, is that pursuant to the provision of Section 274 of the 1999 Constitution of the Federal Republic of Nigeria, the Chief Judge of a State is empowered to make Rules for regulating the Practice and Procedure of the High Court of a State. Having earlier held, that trial within trial is procedural, the Chief Judge of Abia State can make Practice Direction to regulate same.

The answer to the issue is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 3: The issue of whether the learned trial Judge was right to admit the confessional statement of the Appellant, without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law, is another matter. The question is whether failure to do so would affect the admissibility of the statement. On issues of admissibility, RELEVANCE is the watchword.

I am of the view, that failure to comply with the provisions of the law does not affect the admissibility of the statement. As rightly argued by the Respondent, it is the Evidence Act that covers the admissibility of the confessional statement, and not any State Law. I am of the view, that the admissibility of confessional statement in Nigeria is governed by Sections 28 and 29 of the Evidence Act. The answer, to this issue, is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 4: As earlier observed the Practice Direction is purely procedural. It is not a statutory provision. More so, the issue before the Court is not the legality or constitutionally of the Practice Direction. It therefore, cannot be challenged now. ​This issue is misconceived and same is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 5: Decidedly there are conditions before a Court can refer a case to the Court of Appeal for determination.

These conditions are that: (a) The question must involve an interpretation or application of the constitution. (b) The question for reference must involve a substantive question of law, and it is the duty of the Court making the reference to be satisfied that the questions are indeed substantial. (c) The Court making the reference to the High Court must refrain from giving its opinion. (d) The question as to the interpretation or application of the constitution, must arise in the proceedings in the High Court in connection with an issue before the Court making the reference. AUDU V. A.G.

FEDERATION AND ANOR. (2012) LPELR–15527 (SC). From the above, it is clear that the discretionary power of the Court comes to play, if the Court is of the opinion that there is no substantial issue of law, there is no need stating a case to the Court of Appeal for determination. ​None of the four enumerated conditions obtained in this circumstances. This issue is therefore, misconceived and same is resolved in favour of the Respondent and against the Appellant. The appeal fails and same is hereby dismissed.

The ruling of the High Court of Abia State, Aba Division in Charge NO: A/84c/2020 delivered on the 8th of March 2021 is accordingly hereby affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where issues leading to this appeal have been articulated. I agree with the reasoning and conclusions of my learned brother and also dismiss this appeal as lacking in merit. The ruling of the lower Court is accordingly affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I have read before now, the judgment in draft just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). I agree entirely with his Lordship that the ruling of the lower Court cannot be faulted. The appeal is unmeritorious and must fail. It is hereby dismissed. I abide by the order for costs.

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment) : Appellant filed this appeal against the judgment of Kano State High Court in Charge No. K/197C/2017, delivered on 9th October, 2020 by Hon. Justice A.R.D.

Mohammed, who found the Appellant (and 2 other accused persons) guilty of the offence of attempted armed robbery, under Section 299 of the Penal Code of Kano State, and punished under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990, and sentenced him to 14 years imprisonment. ​Appellant was the 2nd Accused Person, charged with two other accused persons, for armed robbery contrary to Section 298 of the Penal Code, Cap 105 Laws of Kano State. Appellant had pleaded not guilty to the charge.

The prosecution called 2 witnesses and tendered Exhibit A2 – confessional statement of the Appellant. Appellant testified in his defense. At the end of the trial, and after considering the evidence and addresses of counsel, the trial Court convicted the Appellant and sentenced him to 14 years, imprisonment, saying: “The evidence of the 2nd accused as DW2 above clearly clears the defence of not making a statement to the Police. He admitted giving his statement by admitting that he gave the IPO his bio data.

I therefore discountenance the argument that the 2nd accused did not give any statement to the Police at SARS office. Exhibit A2 is his statement which was admitted without objection. At the time of the tendering of Exhibit A2, counsel to the 2nd accused did not object to its admissibility nor did he allege the statement was obtained by torture or involuntarily. The raising of this issue at the time of his evidence in chief is definitely an afterthought. The DW2 is definitely not a witness of truth. Even the allegation of torture can not be supported by any evidence.

He alleged he was hanged, beaten and refused food and water everyday for 24 days. Yet he survived without any medical condition. I believe no human being can survive for 24 days without food and water. I find the 2nd accused is only raising it as an afterthought. Exhibit A2 is a confessional statement. The 2nd accused admitted being with the 1st & 3rd accused persons at the time of the commission of the offence. He also admitted conspiring with them and one other person Umar Snake (now at large) to rob the PW1 of his money.

He further admitted attacking the PW1 and one of them stabbing PW1 with a knife. However, as I stated earlier in this judgment, the 2nd accused person retracted his statement in Exhibit A2. However, the retraction was not made at the time of tendering Exhibit A2 in fact Exhibit A2 was admitted without objection by the 2nd accused person; it is trite law that a confessional statement is proved to have been made voluntarily, when at the time of tendering it into evidence, there is no objection from the accused person or his counsel. See the case of AHMAD V. STATE (2018) LPELR: 46550.

The statement in Exhibit A2 remain admissible and binding. See the case, of AKPAN V. STATE [1992] LPELR 381 SC per Kariba Whyte, JSC. I therefore find the 2nd accused actually participated in the attempted armed robbery. He has also failed to defend the case against him, and I so hold. The 2nd accused was charged jointly with the 1st & 3rd accused under S. 299 of the Penal Code for the offence of armed robbery.

However, the evidence adduced by the prosecution shows that the PW1 did not handover the money or his phone to the 1st, 2nd & 3rd accused person (sic) which resulted in their attack on him and stabbing him. Thus, there was no theft committed which is one of the essential element of armed robbery. However, there is enough evidence of attempted armed robbery proved in this Case. I therefore find the 2nd accused actually participated in attempted robbery together with the 1st & 3rd accused persons sequel to this finding, I find no defence offered by the 2nd accused in his defence.

I therefore in compliance with the Provision of S. 217 of the Criminal Procedure Code (under which the. charge was brought) now S. 231 of the Kano State Administration of Criminal Justice Kano 2019, hereby find the 2nd accused guilty of attempted armed robbery under Robbery & Firearms (Special Provisions). Act Cap 398 LFN 1990. I Aisha R. D.

Muhammad High Court Judge hereby convict you Abdulfatah Murtala for the offence of attempted armed robbery under S. 2 (1) of the Robbery & Firearms (Special Provisions) Cap 398 LFN 1990.” ​That is the decision Appellant appealed against, as per his Notice and Grounds of Appeal, on pages 130-137 of the Records of Appeal, dated 29/12/2020. (Appellant had alleged in paragraph 4 of his Brief that he filed Amended Notice of Appeal, but there is no such Amended Notice of Appeal, in this Appeal).

Appellant filed his brief on 25/6/21 and distilled three issues for the determination of the appeal, as follows: 1) Whether or not the learned trial Judge was right to have convicted the Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act Cap 398, when he was charged under Section 298 of the Penal Code Cap 105 Laws of Kano State 1991? (Ground 1 of the Notice of Appeal). 2) Whether or not the learned trial Judge was right to have relied on the confessional statement of the Appellant tendered as Exhibit A and accord probative value to it in convicting the Appellant? (Grounds 3, 4, 5, 6, 8, 9, 10 and 11). 3) Whether or not the prosecution has proved its case against the Appellant beyond reasonable doubt? (Grounds 2, 7, 12, 13 and 14) The Respondent filed its brief on 13/5/2022 and it was deemed duly filed on 24/5/2022.

The Respondent adopted the issues and distilled by the Appellant, for the determination of the appeal. When the appeal was heard on 18/10/2022, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly. Arguing the appeal, Counsel for the Appellant A. S.

Abdulkadir, Esq., on Issue 1, said the trial Court convicted the Appellant under a different law other than the one with which he was charged, and so was in error; that Appellant was convicted under the Armed Robbery and Firearms (Special Provisions) Cap 398, LFN 1990, whereas, he was charged under the Penal Code Cap 105 Laws of Kano State, 1991. Counsel said that the two laws are separate, one being a State Law and the other, Federal Law.

Counsel relied on the case of Mohammed Bello Vs State (2019) 77 Part 2 NSCQR 594 at 612, where the Supreme Court, Per Eko JSC, said: “I cannot see from the counts alleging criminal conspiracy to commit armed robber and armed robbery contrary to Robbery and Firearms (Special Provision) Act that the Appellant (1st Accused) herein was sufficiently put on Notice of the elements constituting the offence under Section 319A of the Penal Code Law of Kwara State.

I do not think so, and I so hold, that the conviction for a state offence, in substitution for the Federal offence that the prosecution failed to prove, is proper. The Appellant could not, in the circumstance, be deemed to have notice of the particulars of the state offence, under Section 319A of the Penal Code, or that the particulars of this state offence were carved out of the Federal offence not proved.

In the circumstance, I allow the appeal.” Counsel also relied on the case of Okobi Vs State (1984) 7 SC 47; (1984) LPELR-2453, where it was held: “It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences cognizable under that law, but less severe penalty prescribed for it. There is therefore available, a choice between the two laws, which the prosecutor can make.

It is my view that to enable the Court to utilize its power under the criminal procedure law to its advantage, the offence should and must be charged under the two laws in the alternative. The Court is not a persecutor but an adjudicator and its borders on Persecution, for the Court to invoke its powers under a law under which the prosecutor decided not to proceed, or prosecute … it will amount to a denial of justice, to the appellant to convict him of an offence under a law different from that which he was tried, for the sole purpose of securing conviction” Per Obaseki, JSC.

Counsel drew strength from the above decisions, to say that the learned trial Judge was in error to have convicted the Appellant under the Robbery and Firearms (Special Provision) Act Cap 398 LFN, 1990. He further placed reliance on FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66; Etim Vs The State (2019) 3 SC (Pt II) 143 at 156-157.

Counsel said that the trial Court, having found that the prosecution had proved an offence under Section 299 which is equally attempted robbery, ought not to have resorted to conviction under the Robbery and Firearms (Special Provision) Act; that, the Penal Code has enough provisions under which Appellant could have been convicted, without necessarily relying on the Robbery and Firearms, Act.

Counsel added that Section 217 of the Criminal Procedure Code, relied upon by the trial Court, is not applicable to the facts of this case, as the section is only applicable in cases mentioned in Section 216 of the Act. He argued that, Appellant was never charged of having committed all of the offences charged in the alternative, and so it was wrong for the trial Court to have relied on Section 217 of the Criminal Procedure Code, in convicting the Appellant under Robbery and Firearms Act.

He relied on the case of Okabachi & Ors Vs The State (1995) 3 SC 141, Ogu Vs The State (1963) 1 ALL NLR 234; Oyebade Vs The Queen (1967) NMLR 71. Counsel admitted that a Court can convict an accused person for a lesser offence and relied on the case of Okabachi & Ors Vs The State (supra) and State VS Usman (2004) ALL FWLR (Pt 226) 231 at 271-272.

But he said that, in this case, Appellant was convicted for a more severe offence; that Section 298 of the Penal Code provides for imprisonment for a term that may extend to ten years, or for one who commits robbery and Section 299 provides for attempted robbery, to be punished with imprisonment term that may extend to 7 years or fine, but that the trial Court in this case opted for a more severe punishment under the Federal Act.

He relied on the case of Babalola Vs State (1989) 7 SC (Pt 1) 94 at 112, to the effect that the accused person can only be found guilty in respect of the offence for which he is charged, being the offence, he pleaded to.

Counsel added that the charge, dated 2/7/18, was not competent and valid, because it was substituted with the charge filed on 29/11/2017, that would have provided the basis for the substituted offence; thus, he said the charge dated 2/7/2018 cannot stand in place of a non-existing process and does not equally have the stamina to stand on its own, having not been birthed with a life of its own, but to draw strength from the earlier one.

On Issue 2, Counsel said the trial Court was wrong to rely on Exhibit A (confessional statement) to convict Appellant, in view of the fact the Hausa version of it was not tendered. He said that PW2 (IPO) had said that he recorded the Appellant’s statement in Hausa and in English languages. Counsel relied on Adamu VS State (2019) 8 NWLR (Pt 1675) 478 at 493-494, to say that both the Hausa and English versions ought to have been tendered; that issue of fair hearing would arise where the Appellant did not understand the English language used in trying him.

He relied on Olanipekun Vs State (2016) 13 NWLR (Pt 1528) 100 (among other cases), and added that, having admitted to recording the statement in Hausa language, PW2 cannot just tender the translated copy in English language, without the original made in Hausa language. He relied on the case of Adeyemi Vs State (2013) 3 NWLR (Pt 1340) 78. Counsel further said that Exhibit A2 (reproduced on pages 103-104 of the Records) was not actually a confessional statement as claimed at the lower Court.

Counsel also said that the offence alleged (armed robbery) against Appellant, meant robbery with violence (FRN Vs Usman (2012) LPELR-7818 SC). He said that before there can be robbery, something must be stolen; he said that, in this case, nothing was stolen; that Exhibit A2, clearly stated that nothing was stolen – when Appellant said: “We both ran away… we did not collect anything from him.” Counsel said that, since nothing was stolen, Appellant could not have committed or confessed to a crime of armed robbery, which did not happen.

Counsel relied on Ikemson Vs State (1989) 3 NWLR (Pt 11); The State Vs Yahaya (2019) 13 NWLR (Pt 1690) 297, to say that, for extra-judicial statement to constitute confession, the maker must admit or acknowledge that he committed the offence for which he was arrested and charged.

He said that the trial Court did not make any finding against Appellant, that he admitted committing the offence; rather that the Court found on page 121 of the Records, that Exhibit A2 was a confessional statement; that he admitted being with 1st and 3rd Accused persons at the time of commission of the offence and admitted conspiracy with them to rob PW1, and one of them stabbing PW1 with a knife. Counsel said that, with the above, Appellant could only be charged with offence of conspiracy!

Counsel further relied on the cases of Ajiboye Vs FRN (2018) 13 NWLR (Pt 1657) 430 and Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281, on the requirements of a confessional statement, that it must meet the requirements to be so called, including words of caution. He said that Exhibit A2 was not a confessional statement; especially as the said Exhibit was extracted, under duress-torture. ​For Issue 3, Counsel answered in the negative, saying that the offence was not established beyond reasonable doubt, as the evidence of prosecution was riddled with inconsistencies and contradictions.

He referred us to pages 24, 25 of the Records, to highlight on the evidence of PW1, which he said were in conflict. He also relied on the case of Aiguokhian Vs The State (2004) 3 SCM 56, on the effect of inconsistent and contradictory evidence. Counsel stressed that PW1 could not have identified Appellant, as he (PW1) said some of the people who attacked him in his house were masked (covered their faces) and it was in the night! That PW1 said 1st accused mentioned their names – 2nd and 3rd Accused, but the 1st Accused denied this (Page 37 of the Records).

Counsel said PW2 had told the Court that the community members told them (police) one Abdulfata Abdullahi and Umar (i.e. 2nd Accused and a person, now at large) were the people who conspired and attacked a sugarcane seller. ​Counsel said the people who gave that information to PW2 did not give evidence. Moreover, that Appellant’s name was not Abdulfata Abdullahi, but Abdulfata Murtala!

He also said that the evidence of Appellant on page 37 of the Records was not discredited, when he said that, on 14/2/2017, he returned from school at 3pm; went to his tailoring shop; returned home from work, prayed and then the police came in from their van and arrested him, in front of his house and took him away. Counsel said it was doubtful whether Appellant was at the scene of crime, at all; that the alleged persons who mentioned him to the police was not called as a witness; he said that was fatal to the case of the prosecution.

He relied on Adamu Vs State (2019) 8 NWLR (Pt 1657) 478; Imhanria Vs Nigeria Army (2007) 14 NWLR (Pt 1053) 76 at 94; State VS Nnolim (1994) 5 NWLR (Pt 345) 394 17. Counsel urged us to resolve the lingering doubts for Appellant, and urged us not to depend on the confessional statement. He urged us to resolve the issues for Appellant. ​Responding, the Counsel for the Respondent Muhammad Nasir Faruk, Esq., (SSC Kano State), on Issue 1, said that the Prosecution had proved the case against Appellant, beyond reasonable doubt.

He relied on the three ways of proving commission of offence – namely (1) by eye witness(es) account; (2) by confessional statement or admission voluntarily made; (3) by circumstantial evidence. He relied on Ilodigwe Vs State (2012) 5 CM 134; Yakubu Vs State (2014) 35 CM 254.

He also relied on the case of Dibia Vs The State (2017) 12 NWLR (Pt 1597) 196, on the ingredients of armed robbery and attempted armed robbery, that: “The offence of attempted robbery is committed when any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault uses or threatened to use actual violence to any other person or any property in order to obtain the thing intended to be stolen” Counsel said it was further held in the case of Dibia Vs State (supra): “The act or conduct of the accused in furtherance to his intention to commit the offence and in relation to the principal offence, must be something more than mere preparation for the commission of the principal offence.

The act or conduct of the accused must be such that, but for intervening circumstance, the principal offence would have been completed or executed.” Counsel for the Respondent then referred us to the evidence of DW2 (Appellant) on pages 103-104 of the Records, when he said in Exhibit A2: “…I know (sic) Abdul Umar and Abba about two years ago, I knew them at our joint were (sic) we used to smoke Indian hemp.

I could remember on the 14th February, 2007, I met with them (sic) behind Hajiya Maria house; while moving towards our house one Abba (the 1st accused) among us told us that he don’t (sic) have money, he also advised us to go and attack one sugarcane seller along the same street that he has money. Myself, Umar and Abdullahi went straight and attacked him and said Abdullahi used knife and subdued him. We both runaway (sic) after that, we did not collect anything from him.” Counsel said that evidence was corroborated by the 3rd accused in Exhibit A3. (See page 104 of the Records of Appeal).

Counsel referred us to the evidence of PW1 on page 25 of the Records, and recounted how he was attacked by the robbers and stabbed by the accused, in the course of robbing him; that they ran away when he shouted and a neighbor came out, that he was able to identify them. PW1 had stated, under cross-examination, that the Appellant was with the 1st accused at the time of the attack and also beat him up. See page 25 of the Records, where he said: “…The 2nd accused was together with the 1st accused and he also beat me up. Yes, I did not know the 2nd accused before this incident.

Yes, 5 of them came. Yes, 2 covered their faces. It was the 1st accused person that mentioned their names. I still insisted that the 2nd accused had covered their faces, with Hirami, so I did not see his face… yes, the 2nd accused was one of these who covered their faces I can’t recognize him…” Counsel said that the testimony of the Appellant in Exhibit A2 corroborated the evidence of PW1 and PW2; and that when Exhibit A2 was tendered, the Appellant raised no objection to the admission of same, and so it was admitted, without any objection.

He said that the trial Court was entitled to convict even on the basis of the confessional statement of Appellant alone, and relied on Ada Vs State (2008) 7 MJSC 46: Azabada Vs State (2014) 6-7 MJSC (Pt 1) 55; Saliu Vs State (2014) 5-6 SC (Pt 1) 26. ​Again, Counsel said the evidence of PW1, PW2, DW2 (Appellant) and Exhibit A3 corroborated the veracity of the confession; that no shred of evidence was adduced to suggest that the confession was not free and voluntary. He also said that the evidence of the prosecution was consistent and there was no contradiction.

He urged to resolve the issue for Respondent, and relied on Shurumo Vs State (2010) Vol. 12 MJSC 52, to say that only material condition can affect evidence. On Issue 2, whether the trial Court was right to rely on the confessional statement to convict Appellant, Counsel answered in the affirmative, and said that even where the confessional statement is retracted, the Court can still rely on it, where it is adjudged credible. He relied on Abdullahi Vs State (2013) 11 NWLR (Pt 1366) 435.

Counsel repeated the arguments made under issue one, relating to the confessional statement (Exhibit A2) and relied on the cases earlier stated. On Issue 3, whether the trial Court was right to convict Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under Section 298 of the Penal Code, Cap 105, Laws of Kano State, Counsel answered in the affirmative. He relied on the cases of Okabichi Vs The State (1975) 3 SC 141 and Ogu Vs Queen (1963) 1 ALL NLR 234, which he said had to do with substituted convictions.

He also relied on Sections 216 and 217 of the Criminal Procedure Code which he said empowers the Court to substitute charge, against accused person, if the main charge has not been proved. Counsel also relied on Salisu Vs State (2019) ALL FWLR (Pt 972) 260, where it was held that an accused person can be convicted for lesser offence, disclosed, if the principal offence is not proved. Counsel also relied on Agugua Vs State (2017) ALL FWLR (Pt 888) 355, where it was held: “…The offence of attempted robbery is a lesser offence than the robbery charged.

The ingredients are less onerous to prove, the law is that before an accused person can be convicted for a lesser offence, the ingredient of lesser offence charged is subsumed in the original offence charged, and the circumstance the lesser offence was committed must be similar to those contained in the offence, charged.” See Nigerian Airforce Vs Kamaldeen (2007) ALL FWLR (Pt 361) 1676.

Counsel also relied on Section 231 of the Administration of Criminal Justice Law of Kano State, 2019 to the effect that: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be, convicted of having attempted to commit that offence although the attempt is not separately charged” Counsel urged us to resolve the issues against the Appellant to dismiss the appeal.

RESOLUTION OF THE ISSUES I shall consider this appeal on the three issues donated by Appellant, which I shall take together, but summarized into 2, as follows: (1) Was the trial Court right to convict the Appellant of a lesser offence of attempted armed robbery under the State law, but punished under Section 2(1) of the Robbery & Firearms (Special Provision) Act, Cap 398 LFN, when Appellant was charged under Section 298 of the Penal Code Cap 105, Laws of Kano State 1991? (2) Did the prosecution establish the commission of the lesser offence of Attempted Armed Robbery, as per the evidence, including the confessional statement of the Appellant – Exhibit A2? ​A brief fact of this case, at the lower Court, showed that Appellant and three other persons (one could not be arraigned, being at large) went to the house of the PW1 to rob him.

At the house of the PW1, they attacked him and threatened him to surrender his money and other valuables, but PW1 resisted them, and was beaten and stabbed, severally. He (PW1) raised alarm which attracted neighbours and the assailant ran away, without taking anything. Three of them, including the Appellant, were arrested. Appellant was the 2nd Accused person. The 1st Accused was the first to be arrested, at the scene and he gave the names of the others, who took part in the robbery attempt. The accused persons made confessional statements to the Police, which were admitted, without objection.

Appellant’s confessional statement was Exhibit A2, which he retracted at the trial. The trial Court found the three accused persons guilty of attempted armed Robbery, instead of armed robbery since they did not take anything from the PW1, as they ran away in fear. Appellant’s main argument in this appeal, is that the trial Court was wrong to convict him under a Federal Law, Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under the State Law, Section 298 of the Penal Code, Cap 105, of the Kano State, 1991.

He also argued that the trial Court was wrong to convict him of attempt to commit the armed robbery, relying on the Confessional Statement (Exhibit A2, the English version), when the Hausa version of the confessional statement was not tendered as Exhibit.

Appellant’s Counsel stated that Section 298 of the Penal Code provides for the punishment for robbery that: “Whoever commits robbery shall be punishable with imprisonment for a term which may extend to ten years and shall be liable to fine.” He also said that, by Section 299 of Penal Code, “Whoever attempts to commit robbery shall be punished with imprisonment for a term which extend to seven years and shall be liable to a fine.” Appellant’s Counsel also submitted that the Court has power under Sections 217 and 218 of Criminal Procedure Code to convict an accused person of a lesser offence, and relied on the case of State Vs Usman (2004) ALL FWLR (Pt.226) 231.

Counsel said that Section 217 of the Criminal Procedure Code is only applicable in cases mentioned in Section 216 of the Law, which says: “… If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved, will constitute, the accused may be charged with having committed all or anyone or more of such offences and any number of such charges may be tried together, or he may be charged in the alternative with having committed someone or other of the said offences.” Counsel argued that Appellant was never charged of having committed all the offences or charged in the alternative and so it was wrong to have relied on Section 217 of the Criminal Procedure Code, to convict the Appellant under the Robbery and Firearms (Special Provision) Act, a Federal Law, contravening armed robbery and related offences.

Counsel, however, admitted that there are equivalent provisions in the Kano State Law, for the offence of attempted armed robbery The charge at the lower Court against Appellant, and the other accused, was: “That you Abba Nuhu, Abdulfatah Murtala and Abdullahi Musa, on or about 14th February, 2017 at about 1930 hours or thereabout at Ramin Gaza, Sharada Quarters, Municipal Local Government, Kano within Kano Judicial Division while armed with a dangerous weapon i.e. a knife did commit the offence of Armed Robbery by doing an act to wit: you stabbed one Musa Mukhtar Umar thereby instilling fear with the intention of collecting money and other valuables from the said Musa… thereby committed the offence of Armed Robbery punishable under Section 298 of the Penal Code, Cap 105 Laws of Kano State…” Appellant and his colleagues were, therefore, tried for armed robbery under the relevant State Law – Section 298 of the Penal Code, Cap 105, Laws of Kano State 1991.

But at the end of the trial, the Learned trial Court found that the evidence rather established a lesser offence of attempt to commit armed robbery, since the accused persons did not take away anything from their victim, after stabbing and beating him, as they ran away in fear, upon the victim raising alarm. Of course, the intention to rob was established, as well as the use of threat and arms, to do so. ​The decision to convict the Appellant and his co-accused for an attempt to commit armed robbery, appears well founded, in the circumstances, in my opinion.

And I think Appellant should be thankful that he was convicted of a lesser offence of attempted armed robbery. It was not because Appellant and his gang were not about to rob the PW1 of his valuables, but were only prevented from taking away the valuables by the alarm raised by PW1, which brought people to the scene, causing them (robbers) to bolt away, in fear.

I do not, however, know why the Learned trial Judge elected to predicate the punishment of Appellant (and the other accused persons) under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN 1990, when it was clear that Appellant (and the other accused person) was charged under Section 298 of the Penal Code of Kano State – Cap 105 Laws of Kano State.

The resort by the learned trial Court to Section 2(1) of the Robbery and Firearms (Special Provision) Act, was wrong, in my opinion, and I think that was a slip, which, alone cannot defeat or nullify the trial and conviction of the Appellant for a lesser offence of attempt to commit armed robbery, especially as the learned trial Court had stated how she arrived at the decision to convict Appellant of the lesser offence, when she said: “However, there is enough evidence of attempted armed robbery proved in this case.

I therefore find the 2nd accused actually participated in the attempted robbery together with 1st and 3rd accused person (sic); sequel to this finding I find no defence offered by the 2nd accused in his defence.

I therefore in compliance with the provision of S. 17 of the Criminal Procedure Code (under which the charge was bought) now S. 231 of the Kano State Administration of Criminal Justice (Law) Kano, 2019, hereby find the 2nd accused guilty of attempted armed robbery, under Robbery & Firearms (Special Provision) Act…” (See pages 122-123 of the Records of Appeal). ​It is clear that Appellant was tried and found guilty under the State law – Criminal Procedure Law of Kano State, and Penal Code, Cap 105 Laws of Kano State, and so the conviction stands, despite the slip by the Court to resort to the section, with which Appellant was punished – Section 2(1) of the Robbery and Firearms Act, Cap 398 LFN, which was imported, strangely, into the case, instead of the relevant State Law- Section 299 of the Penal Code, Cap 105 Law of Kano State, which the Court kept referring to and which had made provisions for punishment in respect of attempted armed robbery.

I think the trial Court had a duty to abide by that provision, in determining the punishment of Appellant. But because the State law also allows for a term up to 14 years imprisonment, and a fine for a convict, (not 7 years as wrongly stated by Appellant’s Counsel), that sentence should not be disturbed, in my opinion. Sections 298 and 299 of the Penal Code of Kano State provide as follows: “298.

Whoever commits robbery shall be punished: – (a) with imprisonment for twenty-one years with or without fine and canning; and (b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life, with or without caning. 299.

Whoever attempts to commit robbery shall be punished with imprisonment for a term of fourteen years, with or without fine and caning.” ​The rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence.

See the case of Galadima Vs State (2013) LPELR-20402 CA: “To the question whether the appellants, who were not charged with this offence, could be convicted of it, the Court returned an affirmative answer. It explained its reason thus: By Section 218 of the Criminal Procedure Code Cap. 30 of Laws of Northern Nigeria 1963 applicable to Kogi State, an accused person can be convicted of a lesser offence if proven even though he is not charged with it. See Okwuwa v. State (1964) 1 All NLR 366.

The offence of voluntarily causing hurt without provocation is proved in this case against the appellants contrary to Section 246 of the Penal Code. [Italics supplied for emphasis] In Ezeja v The State (supra), the appellant was originally charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol but the evidence at the trial disclosed a lesser offence of causing hurt without provocation hence, the conviction of the appellant by the trial Court under Section 246 of the Penal Code.

These decisions have to be contrasted with The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, where this Court held that: It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See Okwuwa v.

The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence, the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis] In Agugua v The State (2017) LPELR-42021 (SC) 54 -55; E- A, this Court explained that: … the offence of attempted robbery is a lesser offence than the robbery charged.

The ingredients are less onerous to prove. The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v.

Kamaldeen [2007] 2 SC 113. [Italics supplied for emphasis] In Okobi v The State [1984] 7 SC 47; (1984) LPELR -2453 (SC), one of the questions that arose for determination was whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act entitled a High Court Judge to proceed to convict of a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law [in pari materia with Section 218 of the Criminal Procedure Code].

Speaking for this Court, Obaseki, JSC, at page 23; A – C, made the following enduring pronouncements: I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act.

There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action, it will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.” In the case of Saliu Vs State (2018) LPELR-44064 (SC), my Lord Nweze, JSC, said: “…there is no way the Appellate Court can substitute or abandon the findings of the trial Court, with another, arbitrarily, or substitute the sentence, which is the terminal of the charge and evidence led to prove it.

See the case of SOLOLA V. THE STATE (2005) 2 NWLR (Pt. 937) 460 at 488; ADENIYI v. FRN (2012) ALL FWLR (Pt, 646) 575 at 589 where this Court held: “By the provisions of Section 179 (1) and (2) of Criminal Procedure Act, the Court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails. But that can only apply where the offence proved is part or element of the offence charged, or related to it.

The offences should be related, having the same or common means of proof, or similar/related ingredients for establishing commission, but the lesser offence, being so called, because the severity of it is less than the main offence, and the punishment thereof is, accordingly, reduced…” That case of Saliu Vs State (supra), it was further held: “THE JURISPRUDENCE OF THE SUBSTITUTION OF LESSER OFFENCES Now, Section 218 of the Criminal Procedure Code provided thus: (1)Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it;

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it. [Italics supplied for emphasis] The lower Court placed reliance on Adava v The State (supra) as authority for its decision in affirming the trial Court’s conviction of the appellant on the “lesser offence.” ​The Section 231 of the Administration of Criminal Justice Law of Kano State, 2019, says: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be convicted of having attempted to commit that offence, although the attempt is not separately charged” As earlier stated in this judgment, I cannot fault the decision of the trial Court, convicting Appellant on the said lesser offence of attempted armed robbery, which was clearly established by the evidence led, short of proving the main offence of armed robbery.

But the trial Court should have sentenced Appellant under the Penal Code, Cap 105 of Kano State, whereof Section 299, prescribes punishment for attempted robbery, being prison terms of up to 14 years, and a fine.

I think the trial Judge should have confined herself to the Penal Code, which also prescribed the 14 years imprisonment, for attempted armed robbery, (not the Robbery and Firearms (Special Provision) Act, Cap 398, LFN, 1990). ​The Argument of Appellant’s Counsel against the conviction of the Appellant on the basis of his confessional statement (Exhibit A2) does not require the waste of judicial time to consider, in full, as the law has become trite, that Appellant can be convicted, even on his confessional statement alone, where the same is adjudged relevant and voluntarily made, and properly before the Court, having been admitted without objection at the trial.

See the recent case of Sule Vs Kano State (2022) LPELR-57542 (CA), where we held: “By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion.

See the case of Husseini Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made.

See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked.

See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” ​Of course, Appellant, who did not challenge the admission of his confessional statement, at the point of tendering same, at the trial, cannot rise up, on appeal, to oppose or challenge the reliance on the same by the trial Court, and seeking the striking down of the confessional statement.

See the case of Yusuf Vs The State (2022) LPELR-56760 (CA), where we held: “Party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntariness), not on appeal.

See Sunday Vs FRN (2018) LPELR – 46357 (SC)” The argument that the Hausa version of the Appellant’s Statement was not tendered, cannot be true, as it is clear from the Records that both the Hausa and English versions were admitted, together, as Exhibit A2. See Page 29 of the Records of Appeal. I therefore see no merit in this appeal, except in respect of the resort to Section 2(1) of the Robbery and Firearms (Special Provision) Act, for the punishment of Appellant, instead of Section 299 of the Penal Code of Kano State, which I do not think can invalidate the trial and conviction.

I do not think the cases of Bello Vs State (2019) 77 part 2 NSCQR 5941; Okobi Vs State (1984) 7 SC 47, (1984) LPELR-2453 (SC) and FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66 are applicable to this case, as they had to do with conviction of accused person under a law different from that which they were charged and tried. Appellant in this case was convicted on a lesser offence under the law with which he was charged, but erroneously sentenced on a different law, which has been corrected in this judgment.

The appeal is dismissed for lacking in merit as the 14 years imprisonment is also what the Penal Code of Kano State provides for attempted armed robbery. The error in sentencing Appellant under Section 2(1) of the Armed Robbery & Firearms Act does not affect the merit of the decision of the lower Court, in my view.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form, the leading judgment of my learned brother ITA G. MBABA, J. C. A. I am in complete agreement with his Lordship that the appeal is devoid of merit; accordingly, I also dismiss it.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the judgment by my learned brother ITA G. MBABA, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine. I too found the appeal unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division (hereafter to be called the Court below), delivered on the 9th of February, 2018.

The appellant and other accused persons were convicted and sentenced to 40 years imprisonment for the offences of conspiracy and armed robbery contrary to Section 97(1) and 298 respectively, of the Penal Code Law of Kano State.

The charges against them in the amended charge sheet dated 14/7/2010, read as follows: 1st Head of Charge That you, Alhaji Tahir Yahaya, Salisu Adamu, Usman Hamza, Sani Ayuba, Muhammed Musa and Maikudi Haliu, on or about the 5th September, 2007 at about 1930hrs, at No. 900 Muhammed Gauyana Road, Hotoro GRA in Nasarawa Local Government Area, Kano State within the Kano Judicial Division, agreed to do an illegal act, to wit: rob Aisha Muhammed Yakassai of No. 900 Muhammed Gauyana Road, Hoyoro and that the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code (Cap 105) Laws of Kano State 1991. 2nd Head of Charge That you, Alhaji Tahir Yahaya, Salisu Adamu, Usman Hamza, Sani Ayuba, Muhammed Musa and Maikudi Haliu, on or about the 5th September, 2007 at about 1930hrs, at No. 900 Muhammed Gauyana Road, Hotoro GRA in Nasarawa Local Government Area, Kano State within the Kano Judicial Division, while armed with guns and other weapons robbed one Aisha Mohammed Yakassai of her following items: N250,000.00 cash, 13 sets of gold jewelries, 10 handsets, bangles and wristwatches valued at N1.8 Million and you thereby committed an offence punishable under Section 289 of the Penal Code (Cap 105) Laws of Kano State 1991.

​The case of the prosecution as told by the victim, Aisha Mohammed (PW1) is that the appellant was among a gang of armed robbers that robbed her on the 5th of September, 2007 when she came back home from greeting her mother who had just returned from a trip. The armed robbers had locked up her domestic staff in a room, after collecting their handsets. The armed robbers asked them to lie down at the living room, while they searched all the rooms in the house and found money and gold and when they heard Police siren, they escaped.

Thereafter, she was able to identify some of them, at the invitation of the Police, while the others were caught when they tried to sell the items to one Aliyu Abdulhamid.

The appellant and the other accused persons pleaded not guilty to the charges.

In proof of its case, the prosecution called 2 witnesses and tendered 6 exhibits. The appellant and the others testified for themselves and called no other witness.

In its judgment, the trial Court convicted them as charged and they were sentenced to 40 years imprisonment.

​Aggrieved by his conviction and sentence, the appellant appealed to the Court below vide a notice of appeal dated 27/7/2016, containing 3 grounds of appeal, from which the appellant formulated three issues for determination, by the Court below. They are: 1. Whether from the totality of the evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant to secure the appellant’s conviction at the trial Court for the offence of armed robbery as provided for by Section 289(1) of the Penal Code Laws of Kano State. 2.

Whether from the totality of the evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant, to secure the conviction at the trial Court of the offence of criminal conspiracy as provided for by Section 97(1) of the Penal Code Laws of Kano State. 3. Whether exhibits 1 and 5 being confessional statements of the 3rd and 1st convicts can be used to convict the appellant without the appellant adopting the said exhibits?

The respondent distilled two issues for determination by the Court below, namely: 1. Whether from the totality of evidence, the offence of criminal conspiracy and armed robbery under Sections 97 and 289 of the Penal Code (applicable in Kano State), were proved against the appellant beyond reasonable doubt to warrant his conviction by the trial Court. 2. Whether from the circumstances of the case, the trial Court had properly used the confessional statement of the appellant to convict him of the offences of criminal conspiracy and armed robbery?

In its judgment, the Court below affirmed the judgment of the trial Court and dismissed the appellant’s appeal.

​Still aggrieved, the appellant appealed to this Court. The notice of appeal, filed on the 7th of March 2018, is upon six grounds.

In the appellant’s brief filed on the 6th of June 2018, three issues were donated to this Court for determination. They are: 1. Whether the failure of the lower Court not to consider issue No. 3 of the appellant’s issues for determination in determining the appeal at the lower Court is not tantamount to denial of the appellant’s right of fair hearing as guaranteed under Section 36 of the 1999 CFRN as amended? 2.

Whether the lower Court was right to have held that the appellant’s statement was a confessional statement to the commission of the offence as charged, thereby making the appellant one of the robbers that robbed PW1? 3. Whether from the evidence on record, the lower Court was justified in upholding the decision of the trial Court that the prosecution had proved beyond reasonable doubt, the offence of conspiracy and armed robbery against the appellant as provided for under the Penal Code Law of Kano State, to warrant the sentencing?

​The respondent’s brief of argument was filed on the 29th of March, 2019 but deemed filed on the 16th of October, 2019. Learned counsel for the respondent formulated sole issue for determination, viz: “Whether from the circumstances of the case and the totality of the evidence adduced, the offence of criminal conspiracy and armed robbery were proved beyond reasonable doubt to secure conviction of the appellant?”

I shall first consider the appellant’s issue one, which asks the question: “Whether the failure of the lower Court not to consider issue No.3 of the appellant’s issues for determination in determining the appeal at the lower Court is not tantamount to denial of the appellant’s right of fair hearing as guaranteed under Section 36 of the 1999 CFRN as amended?

It is contended for the appellant that the trite position of the law is that when a party raises an issue before the Court, such an issue must be considered and determined by the Court, and failure to so do, is tantamount to the denial of a party’s right to fair hearing as guaranteed by Section 36 of the CFRN 1999, as amended. Reliance was placed on the case of Agbo v. State (2006) ALL FWLR (Pt. 773) 1950, (2006) 6 NWLR (Pt. 977) 545.

​Learned counsel for the appellant argued that the failure of the Court below to consider the appellant’s issue three before it, occasioned a miscarriage of justice. He invited the attention of this Court to the appellant’s issue three at pages 178-181 of the record, and opined that had the Court below considered the said issue three, it would have exculpated the appellant from the offence charged, as the issue borders on the confessional statement of the appellant’s co-convict at the trial Court, which the trial Judge used to convict and sentence the appellant.

He posited that the law is trite that the confessional statement of an accused person is the only evidence against the accused person and no other, citing the case of State v. Gwangwan (2015) ALL FWLR (Pt. 801) 1495, (2015) 13 NWLR (Pt. 1477) 600.

He therefore urged this Court to resolve this issue in favour of the appellant and hold that the appellant’s right to fair hearing was breached, which occasioned a miscarriage of justice.

​Learned counsel for the respondent in his brief did not address the argument contained in the appellant’s brief in relation to the first issue. Be that as it may, failure by one party to counter the arguments of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. SeeFulani M. v. State (2018) LPELR 45195 (SC), (2019) 1 NWLR (Pt.1653) 237.

Let me, as a preliminary point, state that the law is well settled that, it is the duty of a Court either of first instance or appellate jurisdiction to consider all the issues joined and argued by the parties before the Court and where it failed to do so, valid reasons must be advanced for the neglect.

Particularly for penultimate Courts whose decisions are subject to appeal, there is need for them to pronounce on all issues articulated before them so that the appellate Court may have the opportunity of being seised of the facts and to assess the decisions on each such issues in order to avoid situations where the ultimate Court may have to remit a case to the lower Court for hearing. It is only the apex Court that can determine a case on a single issue which terminates the proceedings or appeal. See: Honeywell Flour Mills Plc v. Ecobank (2018) LPELR 45127(SC), (2019) 2 NWLR (Pt.1655) 35.

The next point of interest my Lords, is to ascertain whether the Court below failed in its duty to consider all the issues raised for determination before it. At page 197 of the record, the Court below held thus: “I shall consider this appeal on a single issue reframed thus: “Whether from the totality of the evidence adduced, the ingredients of the offences of conspiracy and armed robbery were proved by the respondent beyond reasonable doubt to secure the conviction of the appellant?”

The Court below thereafter determined the appeal based on the sole issue reframed by it.

In State v. Sani (2018) LPELR 43598 SC, (2018) 9 NWLR (Pt.1624) 278, this Court held that: “The law is trite, that an appellate Court has the right or duty where appropriate, to formulate, re-formulate or reframe issue or issues for determination of an appeal especially in a situation where it is of the opinion that the issue(s) as formulated by learned counsel to any of the parties did not encompass the actual points in controversy in the appeal. In doing so however, the issue(s) to be re-formulated by the appellate Court must be consistent with the ground(s) of appeal.”

I am unable to uphold the contention of the appellant that the Court below did not consider his issue three. For the avoidance of doubt, the 3rd issue raised by the appellant at the Court below reads as follows: “Whether exhibits 1 & 5 being confessional statements of the 3rd and 1st convicts can be used in convicting the appellant, without the appellant adopting same?”

At page 199 of the record, the Court below, in its summary of the appellant’s brief, stated thus: “ …He contended that exhibit 1 (statement of the 3rd convict) and exhibit 5 (statement of the 1st convict) relied upon by the trial Court to convict the appellant do not implicate the appellant in the commission of the crime and that the confessional statement of an accused does not bind his co-accused…”

The Court below then held inter alia, as follows, at pages 203-206 of the record that: “it is trite that the Court can convict solely on the confessional statement of the accused person on it is direct, positive and unequivocal. In exhibit 3 contained at page 101-104, the appellant confessed to the commission of the armed robbery… The trial Court went on a voyage of collaboration to get something outside the confessional statement of the appellant. It placed reliance therefore on the evidence of PW1 and PW2…”

​From the foregoing, I must say that the grouse of the counsel of the appellant that the Court below did not consider the issue he raised is of no moment since the sole issue framed by the Court below had encapsulated all the issues raised by him and all the points raised in his submissions were well attended to and duly considered. No miscarriage of justice was occasioned to him at all and also no rules of fair hearing was infringed or violated.

It is glaringly obvious, as borne out of the record that the trial Court did not rely upon exhibit 1 (statement of the 3rd convict) and exhibit 5 (statement of the 1st convict) in convicting the appellant, but on the appellant’s confessional statement and the evidence of PW1 and PW2. The argument of the appellant, therefore, that the trial Court relied on the confessional statements of the other convicts, cannot avail him. The Court below was right in affirming the decision of the trial Court. I therefore resolve this issue against the appellant.

The summation of this appeal my Lords, is as captured in the respondent’s sole issue, which questions: “Whether from the circumstances of the case and the totality of the evidence adduced, the offence of criminal conspiracy and armed robbery were proved beyond reasonable doubt to secure the conviction of the appellant?”

It is submitted for the appellant that the appellant’s extra-judicial statement found at pages 101-104 of the record, and admitted as exhibit 3 at the trial Court, was not a confession to the offence he was charged with.

Learned counsel for the appellant referred to the wording of the 2nd head of charge at pages 6-7 of the record, and argued that exhibit 3 only showed that the appellant was involved in a series of robberies, and not the particular on…. he was charged with, which is robbing one Aisha Muhammad of No. 900 Muhammad Guayana Road, Hotoro GRA Nassarawa LGA, Kano State.

​He argued that neither the victim, nor any of the prosecution witnesses identified the appellant as one of the robbers, which corroborated the unchallenged testimony of the appellant at pages 83-87 of the record that no one was able to identify him, as one of the armed robbers. Reliance was placed on the case of Michael Ebeinwe v. State (2011) 3 SCM 56, (2011) 7 NWLR (Pt.1246) 402.

On whether the prosecution was able to prove the offence of armed robbery against the appellant, it is the view of learned counsel for the appellant that the prosecution was unable to discharge the burden of proof imposed on it, in that the ingredients of the offence of armed robbery, as listed in the case of Olanipekun v. The State (2012) All FWLR (Pt. 607) 763, (2016) 13 NWLR (Pt. 1528) 100, to wit: that there was a robbery; that the robbery was an armed robbery; that the accused was the armed robber or one of the armed robbers; were not proved against the appellant.

​He noted that though it was apparent from the testimony of PW1 that she was robbed, the prosecution failed to establish that it was an armed robbery. According to learned counsel for the appellant, it was incumbent on the prosecution to tender the offensive weapon used in the commission of the offence to corroborate the testimony of PW1 that not only was she robbed, but that the robbery was an armed robbery.

He insisted that the failure of prosecution to tender both the offensive weapon used in the alleged robbery, and the stolen items allegedly recovered from one Aliyu Abdulhamid, was fatal to the case of the prosecution.

Learned counsel for the appellant argued that none of the prosecution witnesses identified the appellant as one of the people that robbed the victim, and nowhere in the appellant’s extra-judicial statement, exhibit C, was the appellant linked to the offences charged.

Relying on the case of Oduneye v. State (2001) All FWLR (Pt. 38) 1203, (2001) 2 NWLR (Pt.697) 311, he urged this Court to discharge and acquit the appellant.

On the offence of conspiracy, it is submitted for the appellant that exhibit 3, which was relied upon by the trial Court in convicting the appellant, did not in any way, implicate the appellant as conspiring with the other convicts.

Learned counsel for the appellant relied on the case of Sani v. State (2015) All FWLR (Pt. 763) 1885, (2015) 15 NWLR (Pt.1483) 522 and argued that it is apparent from the record that the prosecution failed to prove the ingredients of conspiracy against the appellant.

This Court is thus urged to resolve this issue in the appellant’s favour, allow the appeal, set aside the judgment of the Court below and discharge and acquit the appellant.

In response, it is contended for the respondent that exhibit 3, which is the confessional statement of the appellant, and which was admitted in evidence without objection, is the best guide to the truth of the role played by the appellant, and which alone, can ground the appellant’s conviction. Reliance was placed on the case of Ogoala v. State (1991) 2 NWLR (Pt. 175) 509.

Learned counsel for the respondent argued that exhibit 3 was sufficiently corroborated by the uncontroverted evidence of PW1 and PW2 and the trial Court was right, as affirmed by the Court below to convict the appellant as charged. The case of Mafa v. The State (2012) LPELR-9297 SC, (2013) 3 NWLR (Pt. 1342) 607 was cited and relied on.

​On the offence of conspiracy, it is the view of learned counsel for the respondent going by the provisions of Section 96  of the Penal Code of Kano State as well as the case of Simon v. State (2017) 1 SCNJ 414, (2017) 8 NWLR (Pt.1566) 119, all the Court needs is only to be satisfied with the complicity of the accused person in the offence, and as rightly held by the trial Court at page 207 of the record, and affirmed by the Court below: “conspiracy to commit an offence is quite often inferred from circumstantial evidence. It is based on common intent, or purpose.

When once there is such evidence to commit the substantive offence, it is settled that it does not matter that any of the conspirators did what”

He therefore urged this Court to resolve the issue against the appellant, and hold that the respondent, as prosecution, proved the offence of criminal conspiracy and armed robbery, beyond reasonable doubt, and dismiss the appeal.

The long and short of the stance of the appellant is that the trial, conviction and sentence of the appellant are a nullity as there was no nexus between the appellant and the commission of the offences charged and the respondent had failed to prove the case against the appellant beyond reasonable doubt.

​It is settled law that in order to discharge the burden of establishing the guilt of an accused person beyond reasonable doubt in a charge of armed robbery, the prosecution must prove the following: 1. That there was robbery or series of robberies. 2. That each of the robberies was an armed robbery. 3. That the appellant was the robber or one of those who participated in the armed robbery. See: Ameh v. State (2018) LPELR 44463 (SC), (2018) 12 NWLR (Pt. 1632) 99; State v. Fadezi (2018) LPELR-44731(SC), (2018) 18 NWLR (Pt. 1650) 1; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561.

​PW1 is the victim of the armed robbery attack and she gave a firsthand account of what transpired on that day. According to her, the appellant was among a gang of armed robbers that robbed her on the 5th of September, 2007 when she came back home from greeting her mother who had just returned from a trip. The armed robbers had locked up her domestic staff in a room, after collecting their handsets. The armed robbers asked them to lie down at the living room. While they searched all the rooms in the house and found money and gold and when they heard Police siren, they escaped.

Thereafter, she was able to identify some of them, at the invitation of the Police, while the others were caught when they tried to sell the items to one Aliyu Abdulhamid.

​PW2, is a Police Detective. He testified that a case of armed robbery was reported to their control room at Bompai Kano Police Command; that the armed robbers were laying siege at the house of Hajiya Aisha Mohammed Guyana Hotoro Quarters, Nasarawa GRA but the armed robbers had already left the scene of the crime before they got there. The next day, the victim, PW1 reported how the armed robbers attacked her and stole her belongings and properties. They took the sum of N250,000.00, ten handsets and 13 sets of gold and jewelries valued at N1.8 Million.

Subsequently, the convicts were arrested whilst trying to sell the set of jewelries to one Aliyu Abdulhamid of Sallari Quarters, Kano. The appellant and the other convicts were taken to the State CID where they made their statements to the Police. The statements of the appellant and the 3rd, 4th and 6th convicts were admitted without objection, whilst that the 1st and 2nd convicts were admitted after a trial within trial had been conducted. The statement of the appellant, admitted without objection was marked exhibit 3.

The appellant in his defence stated that he was arrested while he was trying to help some people change the tyre of their car. That after 3 days he was brought out of his cell and was told to remove his clothes. He was taken to accused/suspects. Guns and other weapons were displayed and he (the appellant) was told to sit down. That he spent a total of 7 months at the State CID before he was taken to a Magistrate Court for the offence of armed robbery and later taken to the Central Prison, Kano.

Under cross-examination, his statement was read out to him and he stated that he had no idea about what had been read out to him. That he made his statement in Arabic.

​In the instant case, I hold the view that there was no serious doubt as to the identity of the appellant as one of the robbers. Although PW1 did not specifically mention him, PW2 in his evidence testified as to how the appellant was apprehended while he and the other convicts were arrested at the point they were attempting to sell the sets of gold to one Aliyu Abdulhamid. The appellant confessed to his part in the crime in his statement, exhibit 3.

The statement which is found at pages 101-104 of the record, and it reads inter alia, as follows: ‘’They explained that their vehicle is smaller that I should come 4pm and meet with him and he brought out gun that he came from Naibawa with it Alhaji Tahir two rifles and we met at Naibawa at 6pm, Alhaji Tahir Salisu Adamu Jan Way Alh.

Usman Hanza, Driver and I and we went to a house along Naibawa side by Road… I held one gun and Alhaji Tahir held one gun and Salisu held one and we attacked the house and we met one old man and we got N24,000 and one handset and the people raised alarm and Jan Way and the driver ran with the car and everywhere we went, we do released (sic) some shots in the air and we jumped across the express and ran away ….”

​The learned trial Judge considered the facts as stated above along with the evidence of the prosecution witnesses and found that their evidence corroborated the contents of the confessional statements.

In other words, he properly applied the settled guidelines in determining the truthfulness of the confessional statement, to wit: (i) Whether there is anything outside the confession which shows that it may be true; (ii) Whether the confessional statement is in fact corroborated. (iii) Whether the relevant statement of fact made in it are most likely true as far as they can be tested; (iv) Whether the accused had the opportunity of committing the offence; (v) Whether the confession is possible, and; (vi) Whether the alleged confession is consistent with other facts that have been ascertained and established.

See: Ubierho v. The State (2005) 5 NWLR (Pt.919) 644. The above guidelines are also known as the test in R v. Sykes (1913) 8 Cr. App. Reports 233. The settled position of the law is that although a Court can act on a retracted confessional statement, such statement must be subjected to the guidelines enumerated above.

​I am of the considered view that there was no uncertainty whatsoever regarding the identity of the appellant as one of those who committed the offence. He confessed to his part in the crime and thereby fixed himself at the scene. Furthermore, even though the appellant retracted his confessional statements at the trial, the learned trial Judge was correct in the manner in which he treated the statement by considering their weight in relation to the other evidence adduced and proved by the prosecution.

The Court below at page 206 of the record reviewed the findings of the learned trial Judge in respect of exhibit 3 as follows: “… The trial Court went on a voyage of collaboration to get something outside the confessional statement of the appellant. It placed reliance therefore on the evidence of PW1 and PW2 that there were 6 people that took part in the armed robbery, including the appellant.

Furthermore, on the testimonies and evidence of the 6 accused persons including that of the appellant, the trial Court held at page 146 amongst others that “although each denied committing the offence they have been charged with … I have carefully gone through the testimony of each and every one of the accused persons and I find their testimony to be an afterthought which they concocted to try one escape justice.”

The Court below was in agreement with the decision of the trial Court, which decision I also endorse.

​It has been contended for the appellant that it was incumbent on the prosecution to tender the offensive weapon used in the commission of the offence to corroborate the testimony of PW1 that not only was she robbed, but that the robbery was an armed robbery, adding that the failure of the prosecution to tender both the offensive weapon used in the alleged robbery, and the stolen items allegedly recovered from one Aliyu Abdulhamid, was fatal to the case of the prosecution.

​I have here before listed the ingredients of the offence of armed robbery punishable under Section 298 of the Penal Code. The essential ingredient of the offence of armed robbery is simply that at the time of the robbery, the accused person was carrying arms or in company of any person carrying such arms or any offensive weapons. Whether such arms were used on the victim or not is also not material at all provided all offensive weapon was proved to have been held by any of accused person at the material time.

Whether there was a shooting or not or whether the appellant carried it or triggered the shot or even if it was not shot at all, is immaterial. The important thing is that the holding of such arms did or would obviously cause violence or fear of injury on the victim against him or his property and for that reason he (the victim) surrendered such property for fear that he will be injured.

The law is trite that in order to secure a conviction for the offence of armed robbery, the prosecution is only duty bound to prove; (a) That there was an armed robbery. (b) That the accused was armed in company with any person so armed; and (c) that the accused while with arm or arms or in company with person so armed, participated in the robbery.

Once the prosecution proves the aforementioned elements of the offence of armed robbery beyond reasonable doubt, its failure to tender the arms or offensive weapon cannot lead to his acquittal because of the possibility of the accused person doing away with the arms or weapon after the commission of the crime in order to exculpate himself from detection or arrest. See: Ameh v. State (2018) LPELR-44463 SC; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561; Okosi v.

A.-G., Bendel State (1989) 1 NWLR (Pt. 100) 642. ​I must emphasize here that there is no principle of law that insists that the prosecution must tender weapons used in the alleged robbery in order to prove the guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case, for instance, where the prosecution stated that any weapon used in the robbery was recovered. See Olayinka’s case (supra). The hues and cries of learned counsel for the appellant that the respondent did not tender any weapon, cannot avail him. See also: Abiodun v.

The State (2013) All FWLR (Pt. 700) 1257 at 1269 Para E, (2013) 9 NWLR (Pt.1358) 138.

In respect to the offence of conspiracy, while the appellant is of the view that it was not proved; the respondent disagrees. For a fact, conspiracy is an offence that is often deduced or inferred from the acts of the parties and not usually by direct evidence of the meeting of the minds. The reason is simple, that discussions and agreements to do an illegal act or carry out a legal act by illegal means are transactions in secret and normally shrouded from those not part of the deal. The dictum of this Court per Adekeye, JSC (as he then was) inOnyenye v.

State (2012) LPELR-7866 SC, (2012) 15 NWLR (Pt. 1324) 586 is useful. According to his Lordship:

“In effect, conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned.”

Taking that matter of how conspiracy is established in the realm of what transpired in this case from the evidence of the prosecution witnesses and the confessional statements of the appellant, and placing them alongside the defence put up by the appellant, the trial Court and as affirmed by the Court of Appeal had no difficulty in reaching the conclusion that the standard of proof beyond reasonable doubt had been met. I agree. What is expected of the prosecution is proof beyond reasonable doubt and not beyond a shadow or an iota of doubt. I call in aid the case of Nwaturuocha v.

State (2011) 2 – 3 SC (Pt. 1) 111524, (2011) 6 NWLR (Pt. 1242) 170. ​One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution as done in this matter, the charge is proved beyond a reasonable doubt.

The concurrent findings of the two Courts below are that there was a robbery, it was an armed robbery and the appellant was one of the robbers. Also the two Courts accepted the extra-judicial statement of the appellant! i.e. exhibits 3 as a confessional statement. Also found by the two lower Courts was that the offence of conspiracy had been firmly established from the circumstances discerned from evidence before Court. Moreover, the failure to object to the admissibility of the statement exhibit 3, has derailed the subsequent attempt by the appellant to disown the statement.

I cannot fault the Court below in its judgment.

The question at this point would be to what shall I place reliance on, to disturb, alter, reverse or set aside these findings? I see no such anchor in sight as I rely on what the appellate Courts including the Supreme Court had enjoined over the years to go along those findings concurrently made. In Nwaturuocha v. State (supra), this Court, per Rhodes-Vivour, JSC (as he then was), held as follows: “Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence.

A degree of compulsion which is consistent with a high degree of probability. This Court will not interfere with concurrent findings of the trial Court and the Court of Appeal on issues of fact except where the findings are perverse or there is established a miscarriage of justice or a violation of principles of law or procedure…” In my view, the trial Court carefully considered and evaluated the evidence in this case and came to the correct decision, as affirmed by the Court below, that the case against the appellant has been proved beyond reasonable doubt.

In the light of the foregoing, I am satisfied that the prosecution has carried out the burden laid upon it by law to prove the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery, beyond reasonable doubt.

This appeal is therefore lacking in merit and it is hereby dismissed.

​The judgment of the Court of Appeal, Kaduna Division, which affirmed the conviction and sentence of 40 years imprisonment for the offences of conspiracy and armed robbery contrary to Section 97(1) and 298 respectively, of the Penal Code Law of Kano State on the appellant, is hereby affirmed.

AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the lead judgment just delivered by my learned brother, Aboki, JSC, and I agree with him that this appeal totally lacks merit. He dealt eloquently and meticulously with the Issues canvassed in the appeal and I will add a few words on confession, which is an admission made by an accused stating or suggesting the inference that he committed that crime. It is settled that a confessional statement is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence – see Solola v.

State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, said: “A confessional statement is the best evidence… It is a statement of admission of guilt by the accused and the Court must admit it in evidence, unless it is contested..

If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement once a confessional statement is admitted, the prosecution need not prove the case against the accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.

Thus, it is well settled that a confessional statement, which is made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction – see Solola v. State (supra) and Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1. In this case, in addition to the fact that the appellant was apprehended at the point where he and his partners in crime were attempting to sell jewelry taken from PW1, he gave graphic details of his participation in the armed robbery attack wherein they dispossessed of PW1 of same in exhibit 3, his confessional statement.

​In other words, the appellant placed himself at the scene of the crime and was also found with the proceeds of the crime while attempting to sell it. Exhibit 3, the confessional statement he made to the Police, is the best form of evidence against him, and it goes without saying that the two lower Courts were right to attach probative value to the said exhibit 3. He has not provided any reason for this Court to interfere with or disturb their concurrent findings, and I will also dismiss this appeal, which lacks merit. The appeal is dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment written by my learned brother, Abdu Aboki, JSC, in this appeal and agree that the appeal lacks merit and ought to be dismissed.

The appeal is dismissed by me too in terms of the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: I have had a preview of the illuminating judgment of my learned brother, Abdu Aboki, JSC. I agree entirely with the reasons leading to the conclusion that the appeal be dismissed.

I have nothing more to add. Therefore, I adopt the leading judgment as mine, including the consequential orders made therein.

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

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment) : The Appellant, who allegedly caused the death of one “Hassan Ismail by using a cutlass and inflicted a serious cut on his thigh”, was tried, convicted and sentenced to death by the Sokoto State High Court for the offence of culpable homicide punishable with death.

On appeal, however, the Court of Appeal reversed the trial Court’s decision, and reduced his sentence to 10-years imprisonment for culpable homicide NOT punishable with death, and the Appellant has now appealed to this Court with a Notice of Appeal containing two Grounds of Appeal.

He distilled two Issues for Determination from the two Grounds of Appeal in his Brief of Argument, however, the Respondent objected to the issues formulated by the Appellant from the Grounds of Appeal. It submitted that Ground 2 is an omnibus ground of appeal, which is a general ground that contends that the decision in question, is against the weight of evidence; that Issue 1 cannot arise from Ground 2, since an omnibus ground cannot give rise to an issue raising specific points of law, citing Calabar East Co-op. V. Ikot (1999) 14 NWLR (Pt. 638) 225, Henkel Chem. Ltd V. A.G.

Ferrero (2003) 4 NWLR (Pt. 810) 306; and an omnibus ground cannot be used to challenge specific findings of fact or law or finding on a document, citingNdiwe V. Okocha (1992) 7 NWLR (Pt. 252) 129, Abdullahi V. Oba (1998) 6 NWLR (Pt. 554) 420, Akinlagun V. Oshoboja (2006) 5 SC (Pt. II) 100, Osolu V. Osolu (2003) 6 SC (Pt. I) 1.

It further submitted that since Ground 1 is challenging the finding of the Court of Appeal, that the Prosecution proved its case beyond reasonable doubt by circumstantial evidence, and his Issue 2 questions whether the defence of self-defence did not avail the Appellant so as to entitle him to be discharged and acquitted, there is no correlation between the said Ground 1 of the Grounds of Appeal and his Issue 2, therefore, the said Ground 1 cannot give rise to Issue 2 distilled by him.

It is its contention that the two Issues formulated by the Appellant are incompetent and it, therefore, urged the Court to dismiss the appeal.

The Appellant did not file a Reply Brief, but Respondent raised a vital question – what is the Issue(s) for Determination in this appeal? It is an elementary principle that grounds of appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal, arise from the grounds of appeal, which emanated from the decision appealed against - see Ibigbami & Anor V. Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) SC.

The Respondent is right that an omnibus ground of appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law – see Akinlagun V. Oshoboja (supra) and Osolu V. Osolu (supra), wherein this Court explained that: When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence.

In this case, the Appellant complained as follows in the said Ground 2: The affirmation by the Court of Appeal that the Prosecution proved its case beyond reasonable doubt is unwarranted and cannot be supported having regards to the evidence adduced at the trial.

He indicated at page 5 of his Brief of Argument that Issue 1 is “distilled from Ground 2″, of the Grounds of Appeal. The said Issue 1 questions: Whether the lower Court was right in not entirely allowing the Appeal of the Appellant before it, having regard to the failure of the Prosecution to prove the offence against the Appellant at the trial Court upon credible and legally admissible evidence.

Obviously, the complaint in Ground 2 of the Grounds of Appeal is not against the weight to be attached to any particular piece of evidence, and the Appellant did not refer to a specific finding in the said Issue 1. The question raised by Issue 1 is related to the Appellant’s complaint, touching on weight of evidence in Ground 2 of the Grounds of Appeal, therefore, the Respondent’s objection on this point totally lacks merit.

The Respondent also objected to Issue 2 that Appellant distilled from Ground 1 of the Grounds of Appeal, wherein he complained that: The Court of Appeal erred in law when it held that: The circumstantial evidence in the instant case leaves no room for reasonable doubt that the Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution had proved beyond reasonable doubt that the Appellant caused the death of the deceased. PARTICULARS 1.

None of the six (6) witnesses called by the Prosecution was an eye witness to the fight between the deceased and the Appellant from the Records of Appeal before the lower Court. 2. There was a material contradiction between the evidence given by Nura Rabiu (PW3) and the statement made by the said witness, tendered as Exhibit D during trial. 3. There was no sufficient piece of evidence outside the confessional statement tendered as Exhibit E & E1 during trial to ground a conviction. 4.

The circumstantial evidence relied upon by the trial Court and affirmed by the lower Court left room for doubt about whether the Appellant’s action caused the injury that led to the death of the deceased. 5. The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Issue 2, which the Appellant distilled from the said Ground 1 questions: Whether from the evidence on the Record, the defence of self-defence did not avail the Appellant as to entitle him to be discharged and acquitted of the offence as charged.

Apparently, in arguing that there is no correlation between the said Ground 1 and Issue 2, the Respondent did not take cognizance of the Particulars of the said Ground 1. It is settled that Particulars are the specifications of errors or misdirection which shows what a complaint against the decision is.

They are the specific reasoning, finding or observations relating to an error or misdirection complained of, and to determine whether a ground of appeal is relevant to the issue formulated, it must be read together with its Particulars to make it a complete Ground, and it must be based on the issue in controversy – Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC).

​In this case, the Appellant’s complaint in the main Ground is that the Court below erred in law when it held that the Prosecution proved beyond reasonable doubt that he caused the death of the deceased, and in Particulars No 5 of the said Ground 1, Appellant specified that: The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.

He did not mention self-defence, but Courts are encouraged to make the best out of an inelegant ground of appeal in the interest of justice, particularly where no one is left in doubt as to the Particulars on which it is founded – Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.

In this case, it is clear from the said Ground 1 read in conjunction with its Particulars No. 5 that contrary to the Respondent’s argument, there is a correlation between Ground 1 of the Grounds of Appeal and the Issue 2 distilled therefrom, therefore, its objections are overruled.

But in case it is wrong, which it is, the Respondent submitted in its Brief that a sole Issue calls for Determination in this appeal, that is: Whether the finding of the Court below that the Prosecution proved its case beyond reasonable doubt against the Appellant beyond reasonable doubt can be faulted or assailed.

​The Appellant sought the indulgence of this Court “to argue both two Issues together as they are interrelated”, and based on the arguments canvassed by the Parties, it is my view that the issue in this appeal is whether the Appellant is entitled to the said defence of self-defence.

The Prosecution called six witnesses. Sgt. Ahmad Abubakar, PW1 is an Exhibit Keeper, and Exhibits, including a cutlass, was admitted in evidence through him as Exhibit A. Ibrahim Isa, who is related to the Appellant, testified as PW2, and his narration of events, are as follows: “On 4/1/2012 I came out around 9am to buy soap.

I met Hassan the deceased person at the Accused person’s shop and the deceased gave the Accused N20.00 in order to spend N10.00 and the Accused held the N20.00 and refused to give the deceased and as a result a scuffle ensured (sic) between them and I was trying to settle them and they refused to stop and I then went away. The Accused person at that juncture ran to his house took a cutlass and cut the deceased with it. Before I came out of my house, I was told that the deceased was taken by the Police and the Police later came back and arrest the Accused.

When Lawali, the Accused, took the cutlass he used it to cut the deceased person and I saw when it happened.

PW3, Nura Rabiu, testified that he was not present when the incident occurred but as he was passing, he saw the deceased “lying down on the ground”, and he assisted in taking him to the hospital. He also said he saw the Appellant at the scene of the crime. Alhaji Qasimi Adamu, the Appellant’s neighbour, who testified as PW4, stated as follows: “On 4/1/2012, around 9 0′ clock in the morning I was coming out of my house… I was not there when the incident took place. When the incident happened, a girl ran to me and informed me that I should come immediately because the Accused killed Hassan.

I then ran to the scene of the incident and I saw the Accused holding a cutlass in his hand and I heard him saying I have finished with this one and remain another, at that time Hassan was laying down in a pool of blood and I – – confronted the Accused and the Accused threw the cutlass on the roof of his shop and after that I grabbed the Accused and I put him in the car and took him to the Police Station.

​PW5, PC Saidu Abdullahi, who was at Divisional Crime Branch, Sabon Birnin Police Division, merely narrated how he transferred the case to the C.I.D. Office, for further investigation after it was assigned to him.

PW6, Sgt. Danjuma Giwa, is the Investigating Police Officer at the Homicide Section of the C.I.D. Office, who recorded the Appellant’s Statements to the Police, and when the Prosecution sought to tender it in evidence, the Defence Counsel objected on the ground that – “it is not the Statement made by the Accused at the C.I.D. Office”.

However, the trial Court overruled his Objection because it did not touch on the voluntariness of the Statement, and the Appellant’s Statement to the Police recorded by PW6 in Hausa Language and its English version were admitted into evidence through the said PW6 as Exhibits E & E1.

In Exhibit E1, the said English version, the Appellant stated as follows: On Wednesday, 4/01/2012 at about 0900hrs, I was in my shop where I sell cosmetics at Gatawa Village. One Hassan Ismail came to my shop and gave me the sum of N50.00 and asked me to give him a cigarette of N20.00. I gave him the cigarette and refused to give him change of N30.00 because he owes me the sum of N100.00. I told him that I will not give him the change, Hassan said I’m telling lies. He beat me on my mouth. I pick my cutlass and inflicted serious injury on his leg. He felt (sic) down blood was rushing out.

One Alhaji Agada Namanu took him to the hospital where he died. In fact, I’m the cause of Hassan Ismail death. The time I killed him the following people were present: Nura Ismaila, Ala Isa and Luba Mamman, they all witness what happened.”

The Appellant, who did not call any witness, testified as DW1. He said: “What happened is that myself and Hassan Ismail is that he was my customer he used to come to my shop to buy things. One Wednesday in the morning Hassan came to my shop and requested me to give him battery on credit so that he would pay me the next day and I gave him the battery. The next day Hassan Ismail came to my shop and requested me to give him Animal Feed and he gave me the money for the Animal Feed and said he would pay the money for the battery.

At that juncture, I collected back the Animal Feed and told him I would not agree and as a result of that a scuffle ensured (sic) between us and Hassan Ismail abused me and I also abused him and he took a stick from the veranda of my shop and hit me with it on my head and I sustained injuries on my head and I took a cutlass from Hassan Ismail because Hassan was already holding the stick. After I collected the cutlass from Hassan, we started struggling with Hassan in order to collect the cutlass from me, and at that time one Nasiru Agada was present.

When Hassan hold (sic) the cutlass, we started struggling and I was able to hold the cutlass and at that juncture I saw blood coming out of Hassan’s hands and legs and at that juncture I closed my shop and we took Hassan to the hospital.

In his judgment delivered on 19/12/2014, the learned trial Judge, Dogon Daji, J., assessed the evidence of the said witnesses, and noted that: Contrary to the assertion – – that PW2 was present when the Accused cut the deceased with a knife, the evidence of PW2 is not a direct evidence of the occurrence of the offence charged. What PW2 witness (sic) was the beginning of the scuffle between the Accused and deceased. PW2 did not state that he witnessed the actual attack with a cutlass by the Accused.

It is also to be noted that the evidence of PW3 and PW4 are also not direct evidence of the actual attack by the Accused on the deceased. PW3 specifically stated that he was not at the scene when the incident happened while PW4 stated that he was called by a girl while he was at home that morning - What PW4 said he witnessed was the Accused holding a cutlass and making outbursts that he had finished with this one and remain another pointing at the deceased, who was laying (sic) in a pool of blood.

He evaluated the evidence vis-a-vis the ingredients of the offence, and found the death of the deceased, proved. On the second ingredient that his death was caused by the Appellant, he concluded as follows: It is the view of this Court that looking at Exhibit E and E1 – – in which the Accused unequivocally and without mincing words admitted to have hit the deceased with a cutlass and as a result of which he sustained serious injury, which led to his death on the same date, is confessional in nature and it was properly admitted in evidence by this Court.

It is to be noted that if the evidence of PW2, PW3 and PW4 and Exhibit A are considered, one will come to the conclusion that the confession of the Accused – Exhibits E and E1 is, indeed, true. The Accused – – when he testified as DW1 had tried to retract or resile from the Confessional Statement - Exhibits E and E1.

The Accused – had tried to convince this Court that it was while he was trying to collect the cutlass from the deceased that the deceased injured himself, which injury led to his death – – – The action of the Accused of retracting from his confession as contained in Exhibit ‘E’ and ‘E1’ cannot in any way avail him. The action of the Accused is an afterthought. It is just like the action of a drowning man who can hold at anything, which cannot assist him.

It is the view of this Court that the Prosecution has by Exhibits E & E1, Exhibit A and the evidence of PW2 & PW4 proved the second ingredient of the offence.

​On the third ingredient – whether his act or omission that caused the death of the deceased was intentional or with the knowledge that death or grievous bodily was its probable consequence, he held that it can be inferred from Exhibits E & E1, the cutlass used, and evidence of PW2 and PW4 that the Appellant had intended to kill the deceased.

Thereafter, he observed as follows on the defence of self-defence: The Accused in his evidence had tried to raise the defence of self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using the cutlass on him that the deceased injured himself, which resulted to his death – – The evidence of the Accused is an afterthought and cannot be believed by this Court in the face of Exhibits E & E1 and evidence of PW2 & PW4.

In Exhibit E & E1 – – he stated that the deceased beat him on the mouth and as a result of that he took his cutlass and inflict serious injuries on the leg of the deceased. To my mind, the action of the Accused of hitting the deceased with a cutlass cannot be said to be proportional to the act of the deceased of beating the Accused with bare hands on his mouth …….. The act of the Accused of hitting the deceased with a cutlass cannot be said to be reasonable in the circumstances of this case.

The Accused in his Confessional Statement stated that the deceased beat him on the mouth and as a result of that he took a cutlass and inflict serious injuries on the leg of the deceased and blood was gushing out.

It is also the view of this Court that a mere beating by hands on the mouth cannot be said to cause reasonable apprehension of death or grievous harm – – – It is the view of this Court that in the circumstances of this case, the Accused is not entitled to the defence of self-defence – The Prosecution in this case have proved all the essential ingredients of the offence of Culpable Homicide Punishable with Death.

The Court of Appeal, in its judgment delivered on 6/10/2017, held that: The trial Court was not in doubt that the Confessional Statement, Exhibits E & E1, was sufficient of itself to ground a conviction. Moreover, there were other pieces of evidence outside that Statement that beefed out the weight of evidence against the Appellant.

In these circumstances, it is difficult to fault the lower Court’s finding of guilt – – The lower Court was on firm ground in reaching its conclusion that indeed, the Prosecution had proved its case beyond reasonable doubt without any exculpating circumstances to rock that ground. The Appellant’s Confessional Statement also does not seem to contravene the provisions of the Criminal Procedure as it meets the test of admissibility and without more, is sufficient to ground a conviction for the offence.

The requirement of proof beyond reasonable doubt in criminal cases was satisfied by the Prosecution – – Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death.

Any offence, including culpable homicide punishable with death, may be proved by circumstantial evidence – - The circumstantial evidence in [this] case leaves no room for reasonable doubt that Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution proved beyond reasonable doubt that the Appellant caused the death of the deceased.

The Court of Appeal affirmed the trial Court’s findings up to this point, however, it parted ways with the trial Court on the third ingredient – “whether death was a probable and not only a likely consequence of the injury inflicted by the Appellant on the thigh of the deceased considering the nature of the weapon used and part of the deceased’s body injured”

It said the conviction for the offence could be upheld if it is satisfied: That on the evidence, Appellant “knew or had reason to know that death would be the probable and not only a likely consequence” of the injury on the thigh of the deceased with a cutlass, or (2), the Appellant, by injuring the deceased on his thigh, “knew or had reason to believe that death would be the probable and not only a likely consequence” of that bodily injury.

The Court of Appeal then concluded as follows in its own judgment: The proper verdict would have been that the injury inflicted on the deceased by the Appellant with a cutlass on the thigh, was only “likely” to cause death, as defined by Section 19 of the Penal Code, in that any cut by a cutlass aimed at the leg or thigh “would cause no surprise to a reasonable man” if death resulted. The injury caused by the Appellant on the thigh of the deceased, as distinguished from a cut, say, on the head or the abdomen would not “probably” cause death.

In other words, I do not think that death would be considered by a reasonable man to be the natural and normal effect of the Appellant’s act. Accordingly, the conviction of the Appellant cannot also be sustained under Section 221 of the Penal Code.

For these reasons, I find the Accused guilty of the culpable homicide of Hassan (deceased) but find him guilty of culpable homicide NOT punishable with death and convict him under Section 224 of the Penal Code. l, accordingly, allow the appeal in part to the extent of setting aside the finding of culpable homicide punishable by death and sentence of death imposed in the judgment of the lower Court delivered on 19/12/2014.

In the stead thereof, a finding of culpable homicide NOT punishable with death under Section 220 and punishable under Section 222 (4) of the Penal Code is hereby substituted – – The appeal partly succeeds – – Appellant is sentenced to 10-years imprisonment with hard labour to take effect from 19/12/2014.

The Appellant picked holes in the evidence of Prosecution witnesses, and argued that most of the evidence that the trial Court relied on was either hearsay that is inadmissible, or at best circumstantial evidence; that he provided adequate explanation in his evidence, which did not contradict Exhibits E and E1, but elaborated on it; that the said Exhibits shows that there were yawning gaps in the facts contained therein, which his testimony filled up; and that the circumstantial evidence did not eliminate the possibility that he defended himself against the deceased, as can be seen from Exhibits E & E1 and his evidence in chief, which is an elaboration of the said plea of self-defence that he raised.

He conceded that he did not raise the issue of self-defence at the Court below, and so, it did not give any specific decision on the point. But argued that it ought to have considered the question of whether the said plea was rightly or wrongly rejected, which it had a duty to do, citing Mobil Oil (Nig.) Ltd. V. F.B.I.R. (1977) LPELR-24896(SC); that the trial Court wrongly appraised his plea of self-defence, and this Court is entitled to examine the evidence and make its own assessment, citing Onuchukwu V.

State (1998) 4 SC 49; that where the trial Court failed to make proper use of seeing and hearing the witnesses at the trial and took an erroneous view of the evidence adduced, this Court is entitled to interfere with the trial Court’s findings, citing Oguonzee V. State (1998) 4 SC 110, Kwaghshir V. State (1995) 3 NWLR (Pt. 386) 651; and that: From the evidence borne out of the Records, he had no reasonable mode of escape. He was in his shop and the struggle was protracted. Even PW2 got tired of separating the fight and left the pair to slug it out.

It was apparent that it was impossible for him to withdraw from the fight without suffering further hurt from the deceased, who had hit him with a weapon, during the struggle between them. There was, therefore, a necessity on his part to injure the deceased in the cause of defending himself.

He also citedUwaekweghinya V. State (2005) 3-4 SC 29, and submitted that there was no other way of saving himself from death or grievous bodily harm other than using such force, as he did; that it is clear in the circumstances of this case that the deceased intended grievous bodily harm to him and so, he had to defend himself; and that it was in the cause of defending himself that the deceased sustained fatal injuries.

​It is the Respondent’s contention that the Prosecution adduced credible eye witness evidence, evidence of confessional statement and ample circumstantial evidence to prove the offence of culpable homicide not punishable with death against the Appellant beyond reasonable doubt; that a defence of self-defence did not avail the Appellant; and that the Court of Appeal rightly convicted him for the said lesser offence.

It cited Jeremiah V. State (2012) 14 NWLR (Pt. 1320) 248, Nkpuma V. State (1993) 9 NWLR (Pt. 317) 374 and Uwagboe V.

State (2008) 12 NWLR (Pt.1102) 621) on the issue of self-defence, and argued that much as the Appellant sought to extricate himself, the contradictions in the defence that he put forward is apparent; that he claims self-defence, and yet, also claims that the deceased injured himself, which is preposterous; that the plea is an admission that his actus reus led to the death of the deceased but he had no requisite mens rea to kill him the deceased, therefore, for him to turn around and claim that the deceased injured himself and died as a result “entirely negates and rubbishes the plea of self-defence”.

​It submitted, citing Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 and Ayedun V. State (2015) 10 NCC 527; that the evidence of PW2, PW3, PW4 and Exhibits A, C, E & E1 put the Appellant on the spot and showed that he and no one else killed the deceased, who was in Appellant’s shop, and both of them had a fight; and eye witnesses saw him holding a cutlass, while the deceased laid on the ground in a pool of his own blood.

Now, there are three ways for the Prosecution to prove its case – direct evidence, circumstantial evidence or confession.

Direct evidence establishes a fact without making any inference to connect the evidence to the fact. In effect, direct evidence proves or disproves a fact directly.

Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. In other words, circumstantial evidence does not point directly to a fact. An inference must be made that would link the circumstantial evidence to the fact that the Party using it is trying to prove, which can make it a lot more powerful than direct evidence – see Lori V.

State (1980) NSCC (Vol. 12) 269, wherein Nnamani, JSC, stated: Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction – – must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer.

The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

A confession is an admission made by a person charged with a crime, stating or suggesting the inference that he committed that crime, and it is settled that a confessional statement, which is sufficient to ground a conviction, is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence. See Obidiozo & Ors V. State (1987) LPELR-2170(SC), and Solola V.

State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, aptly stated that: “A confessional statement is the best evidence – – It is a statement of admission of guilt by the Accused and the Court must admit it in evidence, unless it is contested – – If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement.

Once a confessional statement is admitted, the Prosecution need not prove the case against the Accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the Accused.” In this case, the trial Court did not need to conduct a trial-within-trial, as the Appellant did not challenge the admissibility of Exhibits E & E1, on the ground of involuntariness. He merely retracted his confession, and it is well settled that a confessional statement, if made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction - see Solola V.

State (supra), Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1.

​In this case, the trial Court found as a fact that Exhibits E & E1 are confessional statements made by the Appellant. The Court of Appeal, in affirming that finding, held that his Confessional Statements meets “the test of admissibility, and without more, is sufficient to ground a conviction for the offence”. These are concurrent findings of the two lower Courts and I see no reason whatsoever to hold to the contrary.

The long and short of it is that the Confessional Statements made by the Appellant to the Police is the best form of evidence against him, and the lower Courts were right to attach probative value to them. The truth of the matter is that the Appellant placed himself at the scene of the crime with a cutlass in his hand and the deceased lying on the ground in a pool of blood, and this is a clear picture arising from what he narrated in Exhibits E & E1, and his evidence in Court as DW1.

​PW2, PW3 & PW4 may not have been there when the Appellant actually cut the deceased on the thigh with a cutlass. But in my view, what they saw and witnessed at the scene of the crime enhances the picture that the Appellant painted himself. PW2 was there when the fight broke out between the Appellant and the deceased over N20.00.

PW3, who was passing by, saw the deceased lying down on the ground and he assisted in taking the deceased to the hospital. He said he did not see the Appellant with a cutlass but he saw him at the scene.

PW4, who was told by a girl to “come immediately” because the Appellant had killed the deceased, ran to the scene where he saw the Appellant holding a cutlass with the deceased lying in a pool of blood. The cutlass that the Appellant was holding is in evidence as Exhibit A.

There can be no better illustration of circumstantial evidence and confession that leads to the irresistible conclusion that the Appellant, and no one else, caused the death of the deceased. The Appellant has not provided any reason or justification for this Court to interfere with or disturb the concurrent findings of the trial Court and the Court of Appeal that he, and no one else, caused the death of the deceased.

​As the Respondent pointed out, the Appellant has not appealed against the Court of Appeal’s decision to substitute his conviction for culpable homicide punishable with death and death sentence passed on him by the trial Court with a conviction for culpable homicide NOT punishable with death and a sentence of 10-years imprisonment. Thus, the conviction and sentence are binding and subsisting against him - see Alakija V. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 24, which it cited.

Be that as it may, it is clear from his arguments/submissions that the Appellant’s main concern in this appeal is the issue of self-defence. He conceded that he did not raise the issue at the Court of Appeal and the only comment made thereon by the Court of Appeal is as follows: The requirement of proof beyond reasonable doubt – – was satisfied by the Prosecution.

Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death.

​The Appellant contends that it ought to have considered the question of whether his plea was rightly or wrongly rejected by the trial Court. I agree. He may not have raised the said issue at the Court of Appeal, but it is trite law that an appellate Court will consider all the defences available to the Appellant, whether it is raised in the appeal or not, provided that there are facts established in the lower Court capable of being considered as adequate proof of any of the defences – see Ojo V. State (1973) LPELR-2385(SC), Bello V. FRN (2018) LPELR-44465(SC).

It is well settled that the only error made by a Court that will lead to a reversal of its judgment, is an error that occasioned a miscarriage of justice or substantially affected its decision - see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182. The category of the error in this case, can only be determined after resolving the said issue of self-defence.

Now, a successful plea of self-defence, completely exculpates an Accused from criminal liability- see Uwaekweghinya V. State (supra), (2005) 9 NWLR (Pt. 930) 227, wherein this Court explained as follows: The purport of self-defence in law is to negative the existence of an offence so that where a person kills another in self-defence, the killing, unlike in provocation as a defence, does not amount to an offence but total exoneration of the Accused. Thus, the Accused is discharged and acquitted.

But to benefit from the exoneration that comes with a successful plea of self-defence, an Accused must prove the ingredients of the defence - see Kwaghshir V. State (supra), Musa V. State (2009) 7 SCNJ 329 andAfosi V. State (2013) 13 NWLR (Pt. 1371) 329, wherein this Court stated: Ordinarily, self-defence that will have any impact on a case to favour an Accused Person must be such that the action taken by the Accused Person was unavoidable.

The following are the ingredients of self-defence: – (a) The Accused must be free from fault in bringing about the encounter; (b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity; (c) There must be no safe or reasonable mode of escape by retreat; and (d) There must have been a necessity for taking life In order to sustain the defence of self-defence, all the above ingredients must exist and be established. See also Uwaekweghinya V.

State (supra), where this Court also held: Before the defence is available, it must be shown by the person relying upon it that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event, which led to the application of such force or in this instant case, the use of cutlass – – For an Accused to avail himself of the defence of self-defence, he must show – – that he took reasonable steps to disengage from the fight or make some physical withdrawal.

But issue of disengagement depends on the peculiar circumstances of each case. Sometimes it may be possible to run away from an unwarranted attack, at times it may be impossible to withdraw. In other words, to avail himself of the said defence, the Appellant must show that his life was so much endangered by the act of the deceased that he had no other option but to kill the deceased and save his life; that he did not want to fight; and that he was prepared to withdraw - see Baridam V. State (1994) 1 NWLR (Pt. 320) 250.

I am not convinced that he proved any of the ingredients of the defence of self-defence.

​First off, the Appellant cannot claim that he was free from fault. In Exhibits E & E1, he stated that the fight ensued because he refused to give the deceased change of N30.00 after the deceased gave him N50.00 to buy cigarette of N20.00. In his testimony as DW1, he said the fight ensued after he took back Animal Feed the deceased paid for because the deceased had not paid for battery he collected on credit.

For whatever reason the fight ensued, whether N30.00 change that he refused to give the deceased or taking back the Animal Feed, the Appellant instigated the fight between them, which proved fatal.

It is clear also from the evidence before the Court that he did not take any measures to retreat, being in his store. He failed to seize the ample opportunity presented to withdraw from the impending fight, and did not even heed the entreaties made by PW2 to stop fighting.

​In his defence as DW1, the Appellant alleged that the deceased took a stick from the veranda of his shop and hit him on the head and he “sustained injuries” on his head. Even if that is true, the act of the deceased in hitting the Appellant on the head with a stick could not have presented a state of impending peril to his life to warrant the use of a cutlass to cut the deceased. The guiding principles are necessity and proportion - the force must have been necessary and it must have been reasonable - see Adeyeye V.

State (2013) 11 NWLR (Pt. 1364) 47, wherein this Court per Ogunbiyi, JSC, stated the right questions to ask: The two questions, which ought to be posed, and therefore, answered before the trial Court, were: – (1) on the evidence, was the defence of self-defence necessary? (2) Was the injury inflicted proportionate to the threat offered, or was it excessive? If, however, the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, then the defence cannot avail the Accused. See R. V. Onyeamaizu (1958) NRNLR 93.

In this case, the Appellant’s action of inflicting injury on the deceased in reaction to being hit with a stick cannot be deemed proportionate to the threat he is alleged to have been faced with. I am not convinced that the use of a cutlass was a necessary and proportionate response.

​It is also difficult to imagine the scenario painted by the Appellant when he said in his defence as DW1 that it was after the deceased had hit him with the stick and he sustained injuries on his head that he took the cutlass from the deceased, who was “already holding the stick”. If, the deceased had the cutlass, why would he use a stick to attack him?

What is more, throughout the trial, the Appellant did not show any evidence of the injuries he allegedly sustained on his head when the deceased hit him on the head with a stick, so as to enable the Court evaluate the gravity of injury to warrant his response. The Respondent cited Bassey V. Queen (1963) 3 NSCC 227, wherein De Lestang, FJ, held: The Appellant received no injuries and was unable to show any on his person.

In these circumstances we think that the assault on the Appellant was not such as to cause reasonable apprehension of death or grievous harm and the force used by the Appellant was excessive – – The defence of self-defence was consequently rightly rejected.

​In this case, it is clear to me that the Appellant’s plea of self-defence is an ill-crafted afterthought to escape culpability. He did not establish the appropriate circumstances in which the defence would avail him. Thus, the fact that the Court of Appeal did not address the Issue in its judgment is of no moment in this appeal; it did not affect its decision.

This appeal lacks merit, it fails and it is, therefore, dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I read before now, the draft judgment delivered by my learned brother, Amina Adamu Augie, JSC, wherein in dismissing the appeal, he held that “the Appellant’s plea of self-defence is an ill-crafted afterthought to escape culpability. He did not establish the appropriate circumstances in which the defence would avail him.”

I concur to my learned brother’s decision that this appeal lacks merit. I affirm the judgment of the lower Court.

MOHAMMED LAWAL GARBA, J.S.C.: A draft of the lead judgment written by my learned brother A. A. Augie, JSC, in this appeal was read by me and I agree with all the views expressed on the two (2) issues submitted by the Appellant for decision by the Court as well as the conclusion that the appeal is wanting in merit, from the case presented before the trial Court.

I would like to emphasize that by the defence of self-defence strenuously relied on by the Appellant and argued in this appeal was/is a tacit admission of the responsibility for the death of the deceased by the Appellant.

In order for the defence to avail him, the law requires the Appellant, by credible evidence, to show and satisfy the trial Court that at the material time, his life was put in real and grave danger by the act/s of the deceased such that the only reasonable option left for him to save his life was to kill the deceased or cause him such bodily in injury to prevent the deceased from killing him.

There must be cogent evidence from the accused person to show that he did not take undue advantage by use of unnecessarily excessive force that is clearly disproportionate to that used on him by the deceased and that he did not want to fight, but was prepared to withdraw, for the defence, as a complete defence, to avail him. The defence is predicated on the natural principle of kill or be killed.

For a successful plea of the defence of self-defence by an accused person charged with the offence of culpable homicide punishable with death under the Penal Code, (as in the case against the Appellant), or murder under the criminal code, there must be credible evidence to show, among others, that:- 1. That the life of the accused person was actually threatened or endangered by the acts of the deceased; 2. That the only option that was opened and available to him to save his own life, was to use force which was necessary on the deceased; 3.

That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased person; 4. That he did not take undue advantage of the deceased person in the process of saving his own life by way of self-defence; 5. That the accused person must show that he did not want to fight and that he was prepared and ready to withdraw from the threat or danger posed to his life by the deceased. See Laoye v. State (1985) 2 NWLR (pt. 10) 832, Stephen v. State (1986) 5 NWLR (pt. 46) 979 at 987, Njoku v. State (1993) 8. K.L.R, 60, Ahmed v. State (1999) 5 SC (pt.

II) 39 at 48, Kwaghshir v. State (1995) LPELR-1726 (SC), Odu v. State (2001) 10 NWLR (pt. 722) 668, Nnamah v. State (2005) 2 NWLR (pt. 929) 147, Apugo v. State (2006) 16 NWLR (pt. 1002) 227, Chukwu v. State (2012) LPELR-9829 (SC), Audu v. State (2003) 7 NWLR (pt. 820) 517. These factors must co-exist for the defence to be available to completely exculpate or exonerate the accused person from or of guilt for the offence charged.

As ably demonstrated in the lead judgment, the Appellant did not adduce credible evidence to show that the defence of self-defence avails him.

I join in dismissing the appeal, for lacking in merit as shown in the lead judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother AUGIE, JSC granted me the privilege of reading in draft, the leading judgment prepared and rendered in this appeal. I am in full agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders.

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

Judgment

OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ibadan Judicial Division, delivered on the 15th day of May, 2020 Coram: Tsammani; Okoronkwo; Ojo; JJCA wherein the appeal by the appellant herein was adjudged lacking in merit and was dismissed. The judgment of the trial Court was then affirmed.

The appellant had earlier been charged with the following one count. “That you Yusuf Abiodun Nasiru ‘M’ on the 12th March, 2014 at about 3p.m. at Isale Awero, Moniya, Ibadan within the Ibadan Judicial Division did unlawfully caused the death of one Glory Oladayo ‘F’ aged 6 years by strangulating and matcheting her to death thereby committing an offence under Section 316 and punishable under Section 319 of the Criminal Code, Cap.38, Vol. II, the Laws of Oyo State of Nigeria, 2000.”

​Upon arraignment, the accused pleaded not guilty to the charge. At the trial, the prosecution called four (4) witnesses while the accused person only testified in defence but called no other witness. The prosecution tendered the extra judicial statements of the accused person which were admitted as Exhibits when there was no objection by the defence. At the close of evidence, counsel to both parties addressed the trial Court and in its considered judgment delivered on the 17th day of May, 2017, the accused was found guilty as charged.

He was convicted and accordingly sentenced to death by hanging for murder.

The appellant was dissatisfied with the judgment of the trial Court, hence he appealed to the Court below. The appeal was adjudged lacking in merit and was dismissed, which again led to the instant appeal.

The Notice of Appeal to this Court was filed on 28th May, 2020. Pursuant to the rules of this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument which was settled by J. T. Ogunniyi Esq. was filed on 24th November, 2020 while the respondent’s brief of argument was filed on 24/12/2020. Upon service of the respondent’s brief of argument, the appellant filed a Reply brief of argument on 15th December, 2020. Learned counsel for the appellant referred to both briefs of argument.

He adopted and relied on same to urge the Court to allow the appeal and set aside the decision of the Court below.

​Mr. B. B. Lawal of counsel for the respondent referred to his preliminary objection filed on 4/12/2020 which is argued in the brief of argument filed on 4th December, 2020 on pages 6-8, paragraphs 3.04 to 3.9. He finally urged the Court to dismiss the appeal and affirm the judgment of the Court below.

In arguing the preliminary objection, learned counsel referred to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and contended that subject to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, an appeal lies from a decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court. He contended further that the said provision is mandatory and so the leave to be sought and obtained assumes a condition precedent status for the filing of a valid or competent appeal.

He submitted that failure to seek leave automatically deprives the Court of jurisdiction to hear the appeal. He relied on Bestman Vs. Whyte (2020) 6 NWLR (Pt.1719) 136 at 154; Adili vs. The State (1989) 2 NWLR (Pt.103) 305 at 330-331.

​Learned counsel took the grounds of appeal one after the other and came to the conclusion that all the grounds of appeal ventilated in the notice of appeal are all grounds of appeal challenging the findings of fact made by the Court below or involves issues of mixed law and facts that can only be validly argued with the leave of either the Court below or this Court. He submitted that the leave to litigate grounds of appeal on fact and/or mixed law and fact must be sought and obtained before the notice of appeal is filed. He relied on B.A.S.E Nigeria Ltd Vs.

Faith Enterprise Ltd. (2010) 4 NWLR (Pt. 1183) 104 at 128-129. He urged the Court to strike out the Notice of Appeal filed on 28th May, 2020.

In his response to the preliminary objection, learned counsel to the appellant contended that since the respondent failed to specifically raise any issue for determination on the preliminary objection, he raised the following issue- “Is the instant appeal competent?”

Learned counsel submitted that the appeal is competent and the preliminary objection raised is misconceived and misplaced in law.

​He referred to the complaint of the respondent on the provisions of Section 233 (3) of the 1999 Constitution and conceded that indeed the law requires that leave of Court is required to be sought and obtained before an appeal is made to the Supreme Court from the decision of the Court of appeal. He however submitted that the said requirement is qualified in Section 233 (3) of the said Constitution which deals with appeal as of right.

Learned counsel contended that the instant appeal is one of the exceptions where leave is required. The appeal is against the affirmation by the Court below of the sentence of death appealed against which is as of right and does not require leave of Court. He urged the Court to hold that the preliminary objection lacks merit and should be dismissed.

There is no doubt, Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria as amended prescribes leave of Court before an appeal is filed against the decision of the Court of appeal.

It reads thus: “Section 233 Subject to the provisions of Subsection (2) of this Section, appeal shall lie from the decision of the Court Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” ​It is clear from the above provisions of the Constitution that there are exceptions to the requirement of leave of Court to be obtained before an appeal is filed against decisions of the Court of Appeal to the Supreme Court. The exceptions are circumstances when appeal shall be as of right.

In other words, the party seeking to appeal decision of the Court of Appeal to this Court does not require leave to appeal. He is entitled to appeal straight to this Court.

Subsection (2) of Section 233 of the 1999 Constitution of the Federal Republic of Nigeria states, inter alia, as follows:- “An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases :- … (d) decision in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court.” ​The appellant herein was sentenced to death by hanging, by the trial High Court and on appeal to the Court below, the death sentence was affirmed with his appeal dismissed.

In the result, he is entitled to right of appeal to this Court without seeking or obtaining any leave to so appeal.

In other words, without any further ado, the respondent’s preliminary objection is unmeritorious and vexatious, to say the least. It is accordingly dismissed.

On the main appeal itself, the appellant distilled two issues from the grounds of appeal as follows: Issues for determination: 1. Whether the Court below was right to have affirmed the judgment of the trial Court on the ground that the learned trial Judge was right to rely on the extra-judicial statements (Exhibits C1 and C2) of the appellant in coming to the conclusion that the appellant and no other, killed the deceased – Glory. (Distilled from Grounds 1 & 3 of the grounds of Appeal). 2.

Whether the Court below was right to hold that although the actual killing was done in an uncompleted building near the house in which the appellant was renting a room, there are clear evidence that the appellant removed the head and some parts into his room. (Distilled from ground 2 of the grounds of appeal).

​In arguing the issues, learned counsel to the appellant took the issues seriatim. On issue No. 1, he answered the question in the negative and submitted that the Court below was in clear error to have decided that the trial Court was right to rely on extra-judicial statements of the appellant and that the appellant and no other, killed the deceased.

Learned counsel contended that in our accusatorial system of criminal justice, the onus of proof of guilt of the appellant on the one count charge of murder lies on the respondent. He relied on Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria. He contended further that the standard of proof expected of the Prosecution is proof beyond reasonable doubt. He relied on Section 135 (1) of the Evidence Act, 2011; Uche Williams Vs. The State (1992) 10 SCNJ 74 at 75; Kim Vs. The State (1992) 4 SCNJ 81 at 84; Dr. Oduneye Vs. The State (2001) SCQR 1 at 3; Ubangi Vs.

The State (2004) 1 MJSC 92 at 95.

​Learned counsel gave three ingredients the prosecution is required to prove to establish the guilt of the appellant in a charge of murder. These are: (a) That the deceased died; (b) That the unlawful act or omission of the accused caused the death of the deceased and; (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 consequences.

Learned counsel contended that the totality of the evidence led by the prosecution shows that there was no direct eye witness evidence at the trial against the appellant. He contended further that the learned trial Judge confirmed this position hence based the conviction of the appellant on the extra-judicial statements of the appellant that were admitted as Exhibits C1 & C2.

Learned counsel conceded that the law is now settled that a Court of law can convict on a retracted confessional statement of an accused where such confessional statement is found to be relevant, positive, true, unequivocal and consistent with other relevant facts outside the confessional statement. He relied on Bature Vs. State (1994) 1 NWLR (Pt.320) 267 at 283, Fasinu Vs. State (2016) 12 NWLR (Pt.1527) 414 at 434.

​Learned counsel contended that the alleged confessional statements credited to the appellant which were admitted as Exhibits C1 & C2 were worthless and no evidential value ought to have been placed on it by the trial Court, as well as the Court below in convicting and affirming the conviction of the appellant for murder.

Learned counsel contended further that the alleged statement having been recorded in the language not understood by the appellant cannot be relied on by the Court and should have been discountenanced.

He conceded that his contention was not on admissibility of Exhibits C1 and C2 but whether the trial Court and the Court below ought to have placed evidential value on extra-judicial statements of the appellant even after they were admitted as exhibits, in view of the fundamental flaws in the procedure adopted in taking and recording same.

Learned counsel contended further that Exhibits C1 & C2 which were retracted confessional statements credited to the appellant did not satisfy the basic fundamentals of a valid statement before the trial Court and the Court below placed reliance on them. He relied on Ogudo Vs. State (2011) LPELR 860 (SC). He submitted that Exhibits C1 and C2 cannot be said to have been made by the appellant.

He urged the Court to hold that there is doubt on whether or not the statements credited to the appellant as extra-judicial statements were made by him, hence urged the Court to, on this ground, allow the appeal. He relied on Ihane Vs. COP (1977) 6 SC 78.

On the rules that a Court must apply to determine the weight to be attached to a retracted confessional Statement, he relied on Nwaebonyi Vs. The State (1994) 5 SCNJ 86. He submitted that Exhibits C1 & C2 in this case did not pass the test and urged the Court to so hold.

Learned counsel referred to the testimonies of PW1, PW2, PW3 and PW4 relied on by the trial Court to corroborate the retracted confessional statements and contended that they are mere statements that are not direct, cogent or point to the fact that the appellant committed the offence. He urged the Court to resolve the issue in favour of the appellant and hold that both the trial Court and the Court below are in error to have solely used Exhibits C1 and C2 in convicting and affirming the conviction of the appellant. He urged the Court to allow the appeal on this ground.

​In the respondent’s brief of argument settled by B. B. Lawal Esq. a sole issue was distilled from the grounds of appeal filed by the appellant as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Whether the Court below was right to have affirmed the judgment of the trial Court on the ground that the learned trial Judge was right to rely on the extra-judicial statements (Exhibits C1 and C2) of the appellant in coming to the conclusion that the appellant and no other, killed the deceased. (Distilled from grounds 1,2 & 3 of the Notice of Appeal).”

In arguing the issue which is the same as the appellant’s issue No. 1, though couched differently, learned respondent’s counsel referred to the complaint of the appellant in paragraph 4.34 of the appellant’s brief of argument, that Exhibits C1 and C2 which the Courts below relied on in convicting and affirming the conviction of the appellant did not satisfy the basic fundamentals of a valid Statement and the Courts below wrongly relied on them.

​Learned counsel contended that the issue raised by the appellant in this appeal on the alleged fundamental flaws associated with the confessional statements of the appellant, that is, Exhibits C1 and C2, is a fresh issue of law which the Courts below were not afforded an opportunity to pronounce on. He relied on Gaji Vs. Paye (2003) 8 NWLR (823) 583 at 599. He submitted that the appellant’s issue No.1 is incompetent and liable to be struck out. He urged the Court to so hold.

On the merit, learned counsel contended that the appellant’s attack against Exhibits C1 and C2 is the nature of a retraction. He submitted that where an accused wishes to resile out of his confessional statement, he must establish that his earlier statement cannot be true or correct by showing that: (i) the statement was not correctly recorded; (ii) he in fact did not make the statement; (iii) he was unsettled in mind at the time he made the statement, or, (iv) that he was induced to make the statement. He relied on Kazeem Vs. The State (2009) All FWLR (Pt.465).

Learned counsel submitted that where a party intends to challenge a confessional statement, the party must be sure of the basis of his objection and when to raise the objection. For an objection touching on the voluntariness or otherwise of the confessional statement, the appropriate time to raise the objection is at the time the Prosecution attempts to tender the document.

​Learned counsel contended that, the appellant, upon entering his defence only alleged that he was beaten and told to confess that he killed the deceased. He did not raise an issue on the incorrect recording of the confessional statement. He submitted that the defence touching on the alleged Procedural defects associated with Exhibits C1 and C2 is an afterthought. He urged the Court to discountenance same. He relied on Sheidu vs. The State (2014) 15 NWLR (Pt.1429) 1 at 24.

Learned counsel contended that the appellant did not retract Exhibits C1 and C2 at the point at which the Exhibits were being tendered or, at the time he entered his defence. He submitted that the attempt now to retract Exhibits C1 and C2 on the basis of alleged procedural defects in the recording of the statements is an afterthought and he urged the Court to so hold. And that he was properly convicted on his voluntary confessional statements. He relied on Fasinu Vs. The State (2016) 12 NWLR (Pt.1527) 414 at 434; Nwaebonyi Vs. The State (1994) 5 NWLR (Pt.343) 138 at 157.

​Learned counsel referred to the testimonies of PW1, PW2, PW3 and PW4 which were used to corroborate the extra-judicial statements of the appellant by the trial Court. He urged the Court not to disturb the concurrent findings of the two Courts below on the point that the appellant killed the deceased for ritual purposes.

He urged the Court to resolve the issue against the appellant and dismiss the appeal in affirming the judgment of the Court below which had earlier affirmed the conviction and sentence of the appellant by the trial Court.

From the three grounds of appeal filed by the appellant the two issues distilled by the appellant can safely be condensed to the following: Whether the prosecution proved the charge against the appellant beyond reasonable doubt relying on the extra-judicial statements of the appellant – Exhibits C1 and C2 to convict and sentence him.

​As I stated earlier, the appellant was charged with the offence of murder of 6 years old girl on the 12th day of March, 2014 in Moniya, Ibadan.

It is already established by plethora of cases by this Court that in order to secure conviction in a charge of murder pursuant to the relevant provisions of the Criminal Code, Laws of the State, the prosecution must prove the following:- (a) that the deceased had died; (b) that the death was caused by the accused; and (c) that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm is its probable consequences. See; Uguru Vs. The State (2002) 9 NWLR (Pt.771) 90; Ubani Vs. The State (2003) 18 NWLR (Pt.581) 224; Igabele Vs.

The State (2006) 6 NWLR (Pt.975) 100. It is also the established law that in a charge of murder, the Prosecution is required to prove beyond reasonable doubt, not only that the act of the accused person could have caused the death of the deceased but that it actually did. But if there is any possibility that the deceased died from other causes than the act of the accused, the prosecution has then not established the case against the accused person that stood trial. See; Uguru Vs. The State (supra); Adebiyi Famakinwa Vs. The State (2016) LPELR-40104 (SC).

​Generally, on the quality of evidence to be relied upon by the prosecution, to establish the charge of murder, the evidence may either be direct or circumstantial. However, whether the evidence is direct or circumstantial, it must indeed establish the guilt of the accused person beyond reasonable doubt. See; Aruna Vs. The State (1990) NWLR (Pt.155) 125.

In the instant case, the accused person/appellant herein was said to have made statements to the police upon his arrest. The said statements were found to be confessional in nature and when there was no objection from the defence, they were admitted and marked Exhibits C1 and C2.

PW1 was one Mary Olaniran- the mother of the deceased school girl. She reported the case of her missing child to the Police when the girl did not return home from school. The school the deceased was attending was about three houses to the appellant’s house. During investigation by the police, the remains of the deceased were found in a bowl inside the locked up room owned by the appellant who was then nowhere to be found. He was later traced to Sokoto where he was arrested and brought to Ibadan for interrogation.

​PW3- Dauda Animashaun, a Police Officer was the investigation Police Officer who handled the case. The statements of the appellant were tendered by him and admitted in evidence. The records show that the statements were said to have been signed by the appellant. The trial Court found that the Investigation Police Officer counter-signed the statement and later took the appellant before a Superior Police Officer who endorsed the said statements.

Under cross-examination by the defence counsel, the PW3 testified, inter alia, as follows: “Some other people were arrested and interrogated. There were initially two suspects in the case … The accused person confessed that himself and one other killed the deceased when they strangulated her and twisted her neck.”

Murder is defined as the taking of human life by a person who either: (a) Has a malicious and willful intent to kill or do grievous bodily harm; or (b) Is wickedly reckless as to the consequences of his act upon his victim. See; Yekini Afosi Vs. The State (2013) 13 NWLR (Pt.137) 329; (2013) 12 SCM (Pt.2) 23.

​Generally, as required by the Evidence Act – Section 138, in proving its case against a suspect, the prosecution may make use of either of the following: (a) Evidence of an eye witness; (b) Confessional Statement of the accused person which must be free and voluntarily given; (c) Circumstantial evidence. See; Adio Vs. The State (1986) 2 NWLR (Pt.24) 581.

In the instant case, there was no evidence of an eye witness who can account for what exactly transpired or the role played by the accused person. But the trial Court relied on the alleged confessional statements of the accused, which was said to have been resiled or retracted during trial. It is noteworthy that the statements of the appellant were said to have been admitted in evidence when tendered before the trial Court without any objection by either the accused or his counsel.

The trial Court after quoting from the admitted statement of the accused stated on page 73 of the records as follows: “It is pertinent to note that the confessional statements of the accused person Exhibits C1 and C2 were tendered by the Prosecution and admitted in evidence without any objection by the accused person or his counsel.”

It is clear from the records that the trial Court relied on the confessional statements of the accused person which were admitted in evidence and marked Exhibits C1 and C2.

​In the said admitted statements of the appellant, the trial Court found that the accused admitted that he killed the deceased Glory of 6 years old by strangulating her and later dismembered her body. The said dismembered body were said to be packed in a bowl and kept in the room of the appellant.

​On pages 72-73 of the record, the trial Court quoted the alleged statement Exhibit C1 of the accused, inter alia, as follows: “…my first wife (sic) name is Sukurat. She gave birth to the fourth child at Moniya area.

She was the one that hire (sic) house at Moniya where myself, Chinyere and two others jointly killed one Glory, a six year old girl but I did not know the location of other Ibo boys but truly on the day the community discovered unusual odour inside my room, Baba Awo was the first person to approach me and he told me that people have detect (sic) that an odour (sic) is been percife (sic) inside my room that I make sure (sic) I ran away to prevent been (sic) arrest (sic) by the police… I ran away; My landlady ran away.

My wife name (sic) Sikurat is fully aware that I was in possession of dead body and a human head. The body was in my possession for about three days before the secret link (sic) out. I quiet (sic) agree that I am the one that killed Glory… The very day I ran away to Lagos where I spent ten days. Later I relocate (sic) to Sokoto to find job doing and the very day I arrived Sokoto I was arrested by Police.”

​The statement admitted by the trial Court as Exhibit C2 was said to be additional Statement of the appellant. The said statement was quoted, inter alia, as follows on page 73 of the record:- “…I wish to state that one Waheed Azeez alia Baba Awo who is residing beside where I am living at Isale Awero, Moniya area Ibadan called me sometimes on Tuesday in the month of February 2014 that he wanted to do money ritual for me and his son Wasiu Awo.

That I should bring human being but his son Wasiu on that faithful (sic) day brought a little girl into an uncomplete (sic) building behind our house at [sale Awero … .Me and Wasiu Awo strangulated the little girl to death thereafter Awo Wasiu started matchething the little girl while I was watching road in case somebody is coming (sic) while Baba Waheed Azeez Awo too was watching around for us.

After the killing, I took the head to my room also I carry (sic) the intestine put (sic) inside bowl before I took it to my room but when I carried the remaining body flesh entered inside room my wife saw it. As she saw the dead body she ran away from the room before people in the area detected the unusual odour Biodun Yusuff Nasiru was the one who killed the little I did not  i know her name before but when his (sic) parent was searching, shouting around I got to know that the little girl I killed for ritual is Glory by name. I only tell lies (sic) about some Ibo.

No Ibo send (sic) me any ritual.”

The trial Court found the above statements of the appellant voluntary and true. Indeed, the said statements were corroborated by the testimonies of PW1, PW2, PW3 and PW4.

It is on record that after the appellant gave his statement and it was found to be confessional in nature, it was taken with the appellant to a superior police officer before whom the appellant confirmed that he made the said statement. The senior Police Officer then counter-signed as required. It is equally noteworthy that even at this stage, the appellant did not complain that he did not make the statements voluntarily.

​There is no doubt that the above quoted extra-judicial statements which were admitted and marked by the trial Court as Exhibits C1 and C2 were not objected to by the accused who was duly represented by counsel. The said statements conformed and satisfied the requirements of a confession as enshrined in Sections 28 and 29 of the Evidence Act.

On page 151 of the records of appeal the Court below upon review of the above two extra judicial statements found as follows: “The above reproduced extra-judicial statements of the appellant are clear, unequivocal and point to no other conclusion than that the appellant intended to and did admit to having killed the deceased – Glory. Though the actual killing was done in an uncompleted building near the house in which he was renting a room, there is clear evidence that the appellant removed the head and some other parts into his room.

The two extra-judicial statements show clearly that the appellant and his wife were occupying the room at the time the crime was committed.”

​I certainly cannot agree less with the Court below that the learned trial Judge rightly and properly relied on the said statements to come to the conclusion that the appellant and no other person killed the deceased Glory.

As I stated earlier, it was rather too late for the appellant to challenge the voluntariness of the extra-judicial statements at the time he did, not having done so when they were being tendered by the prosecution. This Court had in several decided cases reiterated that the time to object to the voluntariness of a confessional statement is at the time of tendering same by the prosecution but not when the accused person opens his defence or during that defence. It will amount to an afterthought. See; Ogudo Vs. The State (2011) 18 NWLR (Pt.1278).

There is no doubt and the law is trite that an accused person can be convicted on his own confession alone and there is no law whatsoever against it. The law is clear on this point, that if a suspect makes a free and voluntary confession, as earlier stated, in his extra-judicial statement to the police, which confession is direct and positive and the Court is satisfied with its truth, such confessional statement alone is sufficient to ground and support conviction without corroboration. See; Asimiyu Alarape & Ors Vs.

The State (2001) 5 NWLR (Pt.1705) 791 (2001) 2 SC 114 (2001) LPELR 412 (SC); Ozana Ubierho Vs. The State (2005) 5 NWLR (Pt.919) 644; (2005) 2 SC (Pt. 1) 18. Indeed, there is no evidence stronger than a person’s own admission or confession. See; Akeem Agboola Vs. The State (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM 157.

In plethora of cases of similar facts and circumstances, the apex Court has stated clearly over and over again, that where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker retracted it altogether at the trial, as in this case. See; Agboola Vs. The State (supra); Egbogbonome Vs. The State (1993) 7 NWLR (Pt.396) 383; Osetola Vs. The State (2012) 17 NWLR (Pt.1329) 251 at 278.

From the way the appellant himself described the way and manner he strangulated and matchetted the victim – Glory to death and dismembered the six year old girl, shows clearly that he is not fit to be alive. The law should remove him also in accordance with the law.

​In the final analysis, I am satisfied that the trial Court was right in its conclusion that the prosecution proved the charge of murder against the appellant beyond reasonable doubt, and he was appropriately convicted and rightly sentenced to death. In the same vein, the Court below was correct in affirming the conviction and sentence by the trial Court. In other words, the instant appeal is not only lacking in merit but vexatious and annoying to say, the least. It is liable to dismissal. The judgment of the Court below which earlier affirmed the judgment of the trial Court is affirmed.

This appeal is accordingly dismissed. Appeal dismissed.

EJEMBI EKO, J.S.C.: The deceased, Yetunde Oladayo Glory (an infant aged 7 years), went to school with her sister in the morning. After the school hours, she did not return home with her sister as was her custom. That sparked a spirited search for her. The search party, led by the Police, later found her school uniform and her dismembered body parts in a room occupied by Appellant and his wife. The owners of the room, the Appellant and his wife, had disappeared. The Appellant upon diligent and discreet investigation was later arrested in Sokoto.

He was brought to Ibadan where the murder of Yetunde Oladayo Glory was committed.

On 28th September, 2015 the appellant, charged with a lone charge of murder, was arraigned before the Oyo State High Court. At the conclusion of the trial; the trial Court convicted the Appellant for murder and sentenced him to death by hanging. On 15th May, 2020, the Court of Appeal (the lower Court), affirming the conviction and death sentence imposed on the appellant, dismissed the appeal; hence the instant further appeal brought on 4 grounds of appeal (including the omnibus ground) filed as of right.

The Respondent’s preliminary objection, brought pursuant to Section 233(2) & (3) of the 1999 Constitution that the appeal is incompetent, having been filed as right, on grounds raising issues of pure fact or mixed law and fact without leave of Court first sought and obtained; is a non-starter. The objection loses sight of Section 233(2)(d) of the Constitution and the fact that the death sentence imposed on the Appellant by the trial Court had been affirmed by the lower Court.

In the circumstance the Constitution (Section 233(2)(d) thereof allows the appellant to appeal as of right on any or all grounds of appeal. The objection, lacking in substance and clearly misconceived, is hereby overruled and/or dismissed.

The two issues, formulated by the appellant, for the determination of the appeal, merely complain about the concurrent findings of fact by the two Courts below.

The established judicial policy of this Court is that it will not undertake further evaluation of the evidence the third time; and that it will only interfere and disturb the concurrent findings of fact by the two Courts below only when the appellant established that the concurrent findings of fact on which his conviction was sustained were perverse and/or that the concurrent findings fact had occasioned a miscarriage of justice against him:UKAEGBU & ORS v. UGOJI & ORS. (1991) 7 SC (pt. II) 24; (1991) 6 NWLR (pt. 196) 127; OLAYODE v. THE STATE (2020) LPELR-52519 (SC) at 18.

Concurrent findings of fact are reasonable, credible and justified when they are supported by available evidence on the printed record: OLAGUNYI v. OYENIRAN & ORS. (1996) 6 NWLR (pt. 453) 127 (SC); WOLUCHEM & ORS v. GUDI & ORS. (1981) 5 SC 291; FOLORUNSHO v. ADEYEMI (1975) NMLR 128.

The Appellant was convicted, inter alia, on Exhibits C1 & C2; his confessional statements admitted in evidence without any objection that would have necessitated a trial-within-trial to determine its voluntariness and admissibility. Curiously in paragraph 4.27 of the appellant’s Brief of Argument the appellant does not contest the admissibility of Exhibits C1 & C2. Rather, it is argued strenuously that the trial Court and the lower Court should not have ascribed any probative value to them even after proper and due evaluation.

It is not the appellant’s case that there was no proper evaluation at all of the totality of the evidence viz-a-viz and/or including the said Exhibits C1 & C2.

The appellant, at the trial, was represented by a Counsel. I repeat: there was no objection to the trial Court admitting Exhibits C1 & C2 in evidence at the instance of the prosecution against the appellant. However, at page 29 of the Record, in the course of his defence evidence, the appellant raised belatedly the issue of the involuntariness of the confession in Exhibits C1 & C2; contending that the said confessional statements were obtained oppressively in violation of Section 29(2) of the Evidence Act, 2011.

The trial Court, upon due consideration of the defence argument, dismissed same in its judgment particularly at pages 72-74, of the Record. The dismissal was predicated on the holdings that i. other pieces of evidence, direct and circumstantial, outside Exhibits C1 & C2 corroborated the veracity of their contents; ii. only the appellant was seised of the personal and privileged details therein about himself, all iii. the fact that Exhibits C1 and C2 were admitted without objection made the belated objection an untenable afterthought

On these premises, the trial Court harboured no doubt about the probability of the truth, and the voluntary making, of Exhibits C1 & C2. The lower Court affirmed these findings of fact.

At the lower Court the appellant made an issue of whether the trial Court was right in holding that the making and the veracity of Exhibits C1 & C2 were duly corroborated. This is an issue of fact. The lower Court dismissed the contention, holding at page 146 of the Record, that the trial Court, on Exhibits C1 & C2, relied on circumstantial evidence to find corroboration thereof and the fact that they were tendered without objection from the defendant, the Appellant.

It was on this finding that the lower Court held, at page 147 of the Record, that the Appellant, having waived his right to object to admissibility of Exhibits C1 & C2, was estopped from belatedly raising the objection at the Appeal Court. Clearly, the Appellant had at the trial Court, waived his right to object to the admissibility of Exhibits C1 & C2. He had the legal right to waive his right to object: ARIORI & ORS. v. ELEMO & ORS. (1983) LPELR-552 (SC); and upon exercising that right he cannot subsequently be heard to recant or resile from waiver.

​The law is settled that the trial Court, in a criminal proceeding, can convict on credible confessional statement of an accused person, even without more. The criminal Court is empowered by law to convict on evidence establishing beyond reasonable doubt the guilt of the accused person. A confession being an admission by the accused person suggesting or stating that he committed the alleged offence is the best evidence on which to predicate his conviction: FRN v. FAITH IWEKA (2013) 3 NWLR (pt. 1341) 285 (SC); SAIDU v. THE STATE (1982) 4 SC.41 at 56-57; IKEMSON & ORS. v.

THE STATE (1989) 3 NWLR (pt. 110) 46.

The Appellant having not established that his conviction, affirmed by the lower Court, was perverse; I cannot disturb the concurrent findings of fact by the two Courts. They are supported by evidence in the printed Record. I am therefore in agreement with my learned brother, OLUKAYODE ARIWOOLA, JSC, whose judgment I hereby endorse and adopt, that there is no substance in this appeal. The appeal totally devoid of any substance is hereby dismissed in its entirety. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Olukayode Ariwoola, JSC. I adopt his reasons and conclusion as mine. I therefore find no merit in the appeal.

​The Appellant’s distilled issues are: 1. Whether the Court below was right to have affirmed the judgment of the trial Court on the ground that the learned trial Judge was right to rely on the extrajudicial statements (Exhibits C1 and C2) of the appellant in coming to the conclusion that the appellant and no other, killed the deceased-Glory. 2.

Whether the Court below was right to hold that although the actual killing was done in an uncompleted building near the house in which the appellant was renting a room, there are clear evidence that the appellant removed the head and some parts into his room.

Since there was no eyewitness to the commission of the crime, the appellant’s learned Counsel contests the veracity of Exhibits C1 and C2 made by the appellant. The trial Court however, which had the opportunity of watching the demeanour of the appellant and the witnesses, relied on the said statements to convict and sentence the appellant. The lower Court dispassionately considered this and affirmed the decision of the trial Court.

​A man may be convicted on his own confession alone; there is no law against it. The law is that, if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated?

Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us? See Per Adetokunbo Adegboyega Ademola, JSC, in KOPA V. STATE (1971) LPELR-1702(SC) (PP. 3-4, PARA. E-E)

In the instant appeal, the evidence of PW1, PW2, PW3 and PW4 clearly corroborates the confessional statements of the appellant in Exhibits C1 and C2 as the person that killed Glory, the deceased person. He cannot therefore escape conviction. The appeal is hereby dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the lead judgment written by my learned brother, Hon. Justice O. Ariwoola, JSC, (PJ) in this appeal, I found the views expressed and the conclusion reached on the germane issue identified for decision by the Court in the appeal, are totally the same with mine and adopt same.

I join in dismissing the appeal in terms of the lead judgment for being grossly devoid of merit.

ADAMU JAURO, J.S.C.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, Olukayode Ariwoola, JSC. I agree with the reasoning contained therein and the conclusion arrived at.

​The requirement that leave must be sought and obtained to appeal to this Court against the decisions of the lower Court on grounds of mixed law and facts is not without exception. One of those exceptions is where the appeal is against a decision of the lower Court in which the Court sentenced a person to death or in which the lower Court affirmed a sentence of death imposed by any other Court.

In other words, where the Court below sentences a person to death or where it affirms a sentence of death, appeals shall lie to this Court as of right, irrespective of whether the grounds of appeal are grounds of law alone, grounds of mixed law and facts or grounds of fact. See; Section 233(2)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The present appeal is against the decision of the lower Court wherein the Court affirmed the sentence of death imposed on the appellant by the High Court of Oyo State.

The respondent’s preliminary objection is therefore without basis and same is hereby dismissed.

Now on the merit of the appeal, it is trite that the guilt of an accused person can be established by any or a combination of the following ways: 1. Evidence of an eyewitness. 2. By a confessional statement voluntarily made by the accused person. 3. By circumstantial evidence. See OMOREGIE V. STATE (2017) LPELR-42466 (SC); AFOLABI V. STATE (2016) LPELR-40300 (SC); AKWUOBI V. STATE (2016) LPELR-41389 (SC).

ADAMU JAURO, J.S.C.:

The guilt of the appellant was principally founded on his confessional statements, Exhibits C1 and C2. Both exhibits were tendered without objection. The connotation of the appellant’s failure to object to the admissibility of Exhibits C1 and C2 is that the Court can safely conclude that they were voluntarily made. Any objection as to the admissibility made subsequent to that is regarded as an afterthought and will not be countenanced. See MUHAMMAD V. STATE (2017) LPELR- 42098 (SC); ISA V. STATE (2016) LPELR-40011 (SC).

The confessional statements having been found to have been voluntarily made, the trial Court was entitled to convict the appellant thereon.

The learned trial Judge nevertheless examined the confession in Exhibits C1 and C2 vis-a-vis the evidence of PW1-PW4 and found that their evidence duly corroborated the appellant’s confession. This finding was ratified by the Court below. I agree with the Courts below and I also endorse the finding that the appellant’s extrajudicial confession contained in Exhibits C1 and C2 were adequately corroborated by the evidence of the respondent’s witnesses.

For the reasons set out above and of course, the more elaborate ones enunciated in the lead judgment, I join my learned brother in dismissing the appeal. The judgment of the Court below which affirmed the judgment of the trial Court is hereby affirmed.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant herein was charged with others at large before the High Court of Edo State on a two-count charge of conspiracy to commit murder and the murder of one Odion Oikhale on or about the 2nd of August, 2010 at Evbuekpen Village in the Benin Judicial Division. The offences are punishable under Sections 324 and 319(1) respectively, of the Criminal Code, Cap. 48 Vol. II, Laws of Bendel State of Nigeria, 1976, applicable in Edo State.

The facts are as follows: on 22/8/2010, there were two parallel meetings held within the Evbuekpen community to resolve a pending dispute between two youth groups. One meeting was held in the compound of PW1, Andrew Oikhale while second meeting was held in the home of the appellant. PW1 is the father of the deceased. He received information that his son had gone missing. While searching for him, two boys, Igbinoba Odigie and Smart Amodu told him that his son had been killed.

He received the news in the evening by which time all those who held the meeting at the appellant’s house had run away from the village. A further search at dawn led to the discovery of his son’s corpse.

A report was made to the Police. A team accompanied PW1 to the scene. The body of the deceased was found covered in a plantain plantation. He identified the corpse as that of his son, after which it was moved to Stella Obasanjo Hospital. The following day, he went to make a statement at the Police Station. While there, the appellant arrived with his lawyer, one Barrister Oko. According to PW1, he informed the Police in his presence that he was the one who shot the deceased. Thereupon he was arrested and other suspects were released. He was eventually charged to Court.

In proof of its case, the prosecution called four witnesses and tendered exhibits, which included Exhibit B, the appellant’s extra-judicial statement, which was confessional. The appellant challenged the voluntariness of the statement. A trial within trial was conducted after which the Court ruled that the statement was voluntarily made and admitted it in evidence as Exhibit B.

The appellant testified in his own defence and called three other witnesses.

At the conclusion of the trial and after considering the written addresses of counsel, the Court, in a reserved judgment delivered on 23/9/14, acquitted and discharged him on the count for conspiracy but found him guilty of murder. He was accordingly convicted and sentenced to death by hanging.

His appeal to the lower Court was unsuccessful, hence the further and final appeal to this Court. The Notice of Appeal filed on 25/7/17 contains two grounds of appeal.

At the hearing of the appeal on 18/2/21, J.N. Okongwu adopted and relied on the appellant’s brief filed on 8/12/17 in urging the Court to allow the appeal. Andrew Malgwi Esq., adopted and relied on the respondent’s brief filed on 12/3/18 but deemed filed on 9/10/19 in urging the Court to dismiss the appeal.

On behalf of the appellant, two issues were distilled for the determination of the appeal: 1. Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt? 2. Whether the Court of Appeal was right in upholding the conviction and sentence of the appellant on the basis of the purported confessional statement of the appellant?

Learned counsel for the respondent also formulated two issues, which are the same as the appellant’s issues, though worded differently. It is not necessary to reproduce them. The appeal can be conveniently resolved under a sole issue, to wit: Whether the Court was right in affirming the judgment of the trial Court, which held that the prosecution proved the appellant’s guilt beyond reasonable doubt?

Sole issue Learned counsel for the appellant submitted that in criminal cases, and particularly in murder cases which carry the death penalty, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. He submitted further that the onus of proof remains on the prosecution and does not shift. He referred to Morka Vs The State (1998) 2 NWLR (Pt. 539) 294 @ 301, Cyracus Ogidi & Ors. Vs The State (2005) 1 SCNJ 67 @ 85 – 86; Section 138 of the Evidence Act, Cap. 112 LFN 1990.

He set out the ingredients required to establish a charge of murder: a) That the deceased died as a result of the voluntary act of the accused person. b) That the deceased died from injuries the accused person inflicted on him and not from other causes.

c) That there was intent to kill the deceased. See Ozaki vs The State (1990) NWLR (Pt. 124) 92; Omonuju vs The State (1976) 5. SC 1; Ogeke vs The State (1999) 2 NWLR (Pt. 590) 595.

He submitted that it must also be proved that the act or omission of the accused, which led to the death of the deceased, was intentional, with the knowledge that death or grievous bodily harm was its probable consequence.

He noted that the trial Court relied on the evidence of PW1, PW4 and the appellant’s confessional statement (Exhibit B) in convicting him. He contended that the only aspect of PW1’s testimony linking the appellant to the crime was his evidence that he was at the State CID when the appellant, in the company of his lawyer, told the police that it was he who shot the deceased. He submitted that PW1’s evidence in Court was at variance with the statement he made to the police on 23/8/2010 (Exhibit) A), where he named those he suspected to have killed his son.

He argued that PW1 only named those who were having issues with his son and that he did not state that it was the appellant who killed him. He submitted that Exhibit A showed that PW1 had no information as to who actually killed his son. He queried why the appellant did not include the fact of the appellant’s confession in the presence of his lawyer, in his statement made on 25/8/2010 or in an additional statement? He also questioned why PW1 did not confront the appellant in the presence of the police to ask him why he killed his son. He contended that PW1’s evidence amounts to hearsay.

Learned counsel submitted that the only evidence that connected the appellant with the case was the evidence of PW4, ASP Friday Ogboi who testified that when the case was transferred to him on 25/8/2010, a good Samaritan lawyer brought the appellant to his office informing him that he had been on the run because he was alleged to have killed the deceased. He also testified that he obtained the appellant’s statement on 30/8/2010, after cautioning him. He noted that during the trial within trial, the appellant testified that the statement was obtained under duress.

He noted that the statement was obtained on 30/8/2010, five days after his arrest. He submitted that the taking of the statement and the attestation thereto (Exhibit C) on 30/8/2010, dealt a blow to the testimony of PW1 that the appellant confessed to the crime in his presence on 25/8/2010.

He submitted that PW4 was not an eye-witness to the crime and he could not therefore testify that he knew it was the appellant who shot the deceased, having testified that he met him for the first time on 25/8/2010. He referred to Ekpo vs. The State (2001) FWLR 59) 454. He submitted that there were inconsistencies in the evidence before the Court which ought to have created some doubt in its mind as to the appellant’s guilt. He referred to Akosile vs The State (1972) 5 SC 332, Onubogu Vs The State (1974) 9 SC 1.

Relying on the case Sani vs The State (2015) 15 NWLR (Pt. 1483) 550 B – D, he submitted that the failure of the prosecution to state the time the incident occurred in the charge was a vital omission.

As regards Exhibit B, learned counsel reiterated the requirements for the admissibility of a confessional statement as stated in Patrick Njovens &Ors. Vs The State (1973) 4 SC 17, Gbadamosi vs The State (1992) 11 – 12 SCNJ 269. He submitted that the appellant alleged that he was tortured and that he was not permitted to write his statement himself even though he is literate. He contended that the fact that his statement was obtained five days after his arrest supports the appellant’s allegation that he was tortured for several days.

He submitted further that PW4 was inconsistent as to the day he arrested the appellant, having given both 25/8/2010 and 30/8/2010 as the date of arrest. He also submitted that the appellant’s three witnesses gave credible evidence on his behalf stating that he did not kill the deceased. He maintained that the prosecution failed to discharge the onus of proving that Exhibit B was made voluntarily and argued that the lower Courts were wrong to have relied on it in sustaining his conviction.

In reaction to the above submission, learned counsel for the respondent conceded that in order to prove the charge against the appellant, or any person charged with the commission of an offence, the standard of proof is beyond reasonable doubt. He noted that it is a settled principle of law that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. He referred to Miller Vs Minister of Pensions (1947) 2 ALL ER372; Oreoluwa Onakoya vs FRN (2002) 11 NWLR (Pt. 779) 595: State vs Ekanem (2017) 4 NWLR (Pt. 1554) 85 @ 105 C-D and E-F.

He also referred to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 135 of the Evidence Act, 2011. He agreed that the burden does not shift. He submitted that the manner in which the burden is discharged depends on the nature of the offence and the circumstances of the case. See Ugwanyi Vs FRN (2010) 14 NWLR (Pt. 1213) 392 @ 409 B-C. He set out the ingredients of the offence of murder as stated by learned counsel for the appellant.

On the first ingredient, he submitted that the evidence of PW1 and PW3 proved that the deceased died. He submitted that PW3’s testimony proved that he died as a result of gunshot wounds to his right upper back which lacerated the heart and lungs and caused severe bleeding or haemorrhage.

On the second ingredient, he referred to the evidence of PW1 and PW4 who testified that the appellant came to the police station in the company of his lawyer and confessed to the commission of the crime in their presence. He also referred to Exhibit B, the appellant’s confessional statement, which was reproduced. He submitted that these pieces of evidence clearly established that the death of the deceased resulted from the act of the appellant.

On the third ingredient, that the act was intentional with knowledge that death or grievous bodily harm was its probable consequence, he submitted that it was evident from Exhibit B that the deceased did not attack the appellant and that the appellant did not shoot him in self-defence nor as a result of provocation. He noted that the appellant intentionally took the gun from where his father kept it and used it to shoot at the deceased. He also referred to the evidence of PW1 and PW4.

He submitted that the prosecution proved its case beyond reasonable doubt and the lower Court was right to have affirmed the conviction and sentence. He referred to Adekoya Vs the State (2017) 7 NWLR (Pt. 1565) 353 D-G.

He contended that there was no inconsistency or contradiction in the prosecution’s case such as could raise any doubt in the mind of the Court. He submitted that the evidence of the prosecution witnesses was straightforward and remained uncontradicted under cross-examination. He referred to ASAFA Foods Factory Vs Alraine (Nig) Ltd. (2002) 12 NWLR (Pt.781) 35A3 -C, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt. 146) 617 @ 624 D-E.

He argued that the evidence of PW1 and PW4 were not hearsay. On what amounts to hearsay, he referred to Section 126 of the Evidence Act, 2011. He submitted that PW1 and PW4 testified as to what they heard directly and not information given to them. He submitted that the authority of Ekpo Vs The State (supra) relied upon by the appellant’s counsel is not apposite in the circumstances of this case. He submitted that the evidence of these witnesses was corroborated by Exhibit B.

He submitted that the learned trial Judge carefully examined and evaluated all the evidence before him before coming to his conclusion as to the appellant’s guilt. He submitted that the lower Court was right not to interfere. ​ As regards Exhibit B, learned counsel reiterated the law and authorities on what constitutes a confessional statement and the test of its voluntariness and admissibility. He submitted that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case.

He referred to Kolade Vs The State (2017) 8 NWLR (Pt.1566) 89 @ 94-95 G-A; Egboghonome Vs The State (1993) 12 CRCN (Pt. A) 701. He submitted that the procedure adopted by the learned trial Judge at the trial within trial is in line with the decision of this Court in Hassan Vs The State (2017) 5 NWLR (Pt. 1557) 28 and Section 29 of the Evidence Act. He submitted further, that the lower Court was right when it held that the appellant failed to prove or show evidence that he was tortured.

He submitted that the retraction of a confessional statement at the trial does not render it inadmissible. See Egboghonome Vs The State (supra). Relying on several authorities, he submitted that a Court can convict solely on the confessional statement of an accused person if it is voluntary, direct, positive and properly proved. See Dibia Vs The State (2017) 12 NWLR (Pt. 1579) 196; Oseni Vs The State (2012) 5 NWLR (Pt.1293) 351 @ 393-394 F-C; Abdullahi Vs The State (2008) 13 NWLR (Pt.1103) 149. He submitted that Exhibit B met all the criteria for admissibility.

He submitted that the evidence of PW1, PW2, PW3 and PW4 corroborate the said confessional statement. He also noted that there was no appeal against the ruling in the trial within trial and it is too late in the day for the appellant to complain now. He referred to Hassan Vs the State (supra). He urged the Court to resolve the appeal in the respondent’s favour.

Before delving into the merit of the appeal, it is necessary to address the submission that the prosecution failed to indicate the time the offence was committed in the charge. The appropriate time to complain or object to a charge is at the time it is being read and before the accused makes his plea and not later. It is too late to complain at this stage. The appellant has not shown that he was misled in any way or that the omission has occasioned a miscarriage of justice.

See Okewu Vs F.R.N. (2012) 9 NWLR (Pt. 1305) 327, Mumini vs F.R.N. (2018) 13 NWLR (Pt. 1637) 568, Okpa vs The State (2017) 15 NWLR (Pt. 1587) 1.

Both learned counsel have correctly stated the position of the law on the onerous burden placed on the prosecution in establishing the guilt of a person charged with a criminal offence. The prosecution must establish the guilt of the accused person beyond reasonable doubt although not beyond the shadow of a doubt.

Proof beyond reasonable doubt means proof as satisfies the judgment and conscience of a Judge as a reasonable man and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. See Afolalu vs The State (2010) 16 NWLR (Pt. 1220) 584 @ 609 – 610 G -A; Oseni Vs The State (2012) 5 NWLR (Pt. 1293) 351 @ 388 F – G; Miller Vs Minister of Pensions (1947) 2 ER 372; Ikpo Vs The State (2016) 10 NWLR (Pt. 1521) 501.

The ingredients of the offence of murder punishable under Section 319 (1) of the Criminal Code of Bendel State applicable in Edo State, which must be proved beyond reasonable doubt are as follows: 1. That the deceased died; 2. That the death of the deceased resulted from the act of the accused; 3. That action of the accused was intentional with knowledge that it might result in death or grievous bodily harm.

See Akpan VS The State (1994) 9 NWLR (Pt. 368) 247; Olaiya vs The State (2017) 9 – 12 SC 86; Simeon vs The State (2018) 13 NWLR (Pt. 1635) 128.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This appeal is against concurrent findings of fact by the two lower Courts. The appellant, in order to succeed, must therefore satisfy this Court that the findings are perverse. He must show that the decision is wrong, not based on the evidence before the Court or that it violates some principle of law or procedure such that if allowed to stand it would occasion a miscarriage of justice. See Abdulmumini Vs FRN (2017) SC (Pt. 11) 37: Atolagbe Vs Shorun (1985) 1 NWLR (Pt. 2) 360: Iwuoha Vs Nigerian Postal Services Ltd. & Anor. (2003) 4 SC (Pt. 11) 37.

As regards the fact that the deceased died, it is not in contention. The learned trial Judge accepted and believed the evidence of the prosecution in this regard. PW1 testified that he identified his son’s corpse while PW3, Dr. Wilson Akliwu (Chief Consultant Pathologist) testified as to the cause of death being “an arm’s length multiple pellet gun shot to the back which lacerated the lungs and heart causing severe bleeding.” In upholding the finding of the trial Court on this issue, the lower Court held: “The evidence was that the deceased did not suffer any chronic illness before his death.

It is therefore certain that the deceased died from multiple gunshots.”

The appellant did not challenge this finding and has not shown it to be perverse. It is supported by the evidence on record.

The second ingredient is proof that the death of the deceased result from the act of the accused person. In resolving this issue, the learned trial Judge relied on the evidence of PW1, PW4 and Exhibit B. As stated earlier in this judgment, it was the testimony of PW1 that he was at the police station when the appellant in the company of his lawyer, informed the police, in his presence that he shot the deceased. Learned counsel for the appellant argued that the evidence amounts to hearsay and is therefore inadmissible. Sections 37 and 38 of the Evidence Act, 2011 provide: “37.

Hearsay means a statement – (a) Oral or written made otherwise than by a witness in a proceeding; or (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of proving the truth of the matter stated in it.” 38. Hearsay evidence is not admissible except as provided inthis part or by or under any other provision of this or any other act.” It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.

It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to established by the evidence, not the truth of the statement but the fact that it was made. See Utteh Vs The State (1992) 2 NWLR (Pt. 223) 257; Subramanian Vs Public Prosecutor (1956) 1 W.L.R. 965 @ 970; F.R.N. Vs. Usman (2012) 8 NWLR (Pt. 1301) 141. In the instant case, PW1 did not testify as to what somebody else told him. He testified as to what he heard directly from the appellant’s mouth.

His evidence was not hearsay.

PW4 testified that the appellant made a confessional statement wherein he confessed that he shot the deceased. He testified that when the appellant made his statement, his lawyer was present and that he made the statement voluntarily. He also testified that he took him before a superior police officer for attestation as to its voluntariness. The appellant retracted the statement at the trial. A trial within trial was conducted after which the Court was satisfied that the confession was voluntarily made.

Having so found, the Court was entitled to consider it along with other evidence before it in reaching a determination as to the appellant’s guilt or innocence.

Relying on the case of Osetola Vs The State (2012) 6 -7 MJSC (Pt. Il) 41, the learned trial Judge stated thus: “The Supreme Court (in that case) held that where an extra-judicial confession had been proved to have been made voluntarily and it is positive and unequivocal, and amounts to admission of guilt, such confession will suffice to ground a finding of guilt regardless of whether the maker resiled therefrom or retracted it altogether at the trial.” This is no doubt, a correct statement of the law.

Nevertheless, His Lordship went further and applied the six-way test laid down in R Vs Sykes (1913) Cr. App R. 233 and followed in many other cases such as Ogudo Vs The State (2012) ALL FWLR (Pt. 629) 111; Mumuni Vs The State (1975) SC 66 (1975) LPELR – 1926 (SC): Nsofor VS The State (2005) ALL FWLR(Pt. 242), to consider other evidence outside Exhibit B to determine if the confession was probable. The Court was satisfied that Exhibit B passed all the tests.

The Court below, in affirming this finding held thus: “A voluntary confessional statement (Exhibit B has been adjudged one) precedes the trial of the case in respect of which it is made and it therefore forms part of the case for the prosecution. The fact that its voluntariness is challenged at the trial does not affect it admissibility… I hold that Exhibit B is direct and positive and is enough to convict the appellant as rightly done by the learned trial Judge. … There is no need for corroboration where the confession is positive and unequivocal.”

The law is indeed trite that a confessional statement which is voluntary, properly proved, direct and unequivocal, is sufficient to sustain a conviction, even where it is subsequently retracted at the trial. As a mater of practice, the Courts look for some other evidence outside the statement, no matter how slight to establish the truth of the matters admitted therein. The six-way test laid down in R.Vs  Sykes (Supra) requires the Court to satisfy itself of the following: 1. Is there anything outside the statement to show that it is true? 2. Is it corroborated? 3.

Are the facts stated therein true as far as can be tested? 4. Did the accused have the opportunity of committing the offence? 5. Is the confession possible? 6. Is it consistent with other facts that have been ascertained and proved? See Akpa vs The State (2007) 2 NWLR (Pt. 1019) 500; Okoh Vs The State (2014) 8 NWLR (Pt. 1410) 502.

In Exhibit B, at page 28 of the record, the appellant stated inter alia: “I am the youth secretary of Evbuekpen Village. One Smart Amaoku is also our Vice-Chairman of youth in Evbuekpen while Smart Odibo is the youth treasurer of Evbuekpen village. The Evbuekpen youth books are with me as the secretary. On 22/8/2010, at about 9.00pm when I arrived home my mother Mrs.

Margaret Okeremute told me that some group of boys… and host of others came to our house to demand for the community youth books from me. … After I have handed over the books, I stayed in their mist (sic) and started listening to the matter they were deliberating on. As I was listening, one Mama Believe came in there and told me some groups of boys have surrounded our house in search of me… There and then I decided to go home and met them but Robinson Odigie and other elders advised me that I should not go home.

Then I insisted I must go to my house… I was already in the middle between these groups and the elders. There and then I ran home while these groups followed me behind. As at the period they were beckoning me to meet them they (sic: there) was no fight or quarrel. As I saw them in my house, I ran into the nearby bush behind our house. While I was in the bush, I notice that they were fighting with my people, namely Lucky Okeremute and Ufuoma Okeremute. I also heard gun shots and wailing that they have killed Ufuoma Okeremute.

When I heard wailing and cry of the people, I came out of the bush and went into my house through the backyard to where my father kept his single barrel gun and took it. After I have armed myself with the single barrel gun, I came out to the frontage of the house and saw that they had started running away. Then I saw somebody running away and I shot at him.

It was later I came to realise that it was Odion Oikhala that I shot. After I had shot at Odion Oikhala, when he was running towards the Church area… I did not shoot any other person that sustain injuries except Odion Oikhala now deceased. After I had finished using the singe barrel gun. I took it back to the house where I kept it on top of my father’s bed. I did not plan with anybody to kill Odion Oikhala now deceased. Nobody sent me to use gun to kill anybody. After the whole incident, I and my family escaped into the bush before running to Benin.

In a nutshell, I am the person who killed Odion Oikhala with a single barrel gun shot.” (Underlining mine)

The statement reproduced above is a positive and unequivocal narration of the events that took place on the fateful day straight from the horse’s mouth, as it were. There can be no better evidence of the commission of a crime than the eye witness account of the accused himself. Having conducted a trial within trial and satisfied itself that the statement was made voluntarily, the trial Court was entitled to rely on it without further corroboration.

Nonetheless, both Courts examined other evidence in the case, such as the evidence of PW3, which confirmed that the deceased was shot in the back and the evidence of PW1 that he heard the appellant confess to killing the deceased at the Police station where he had come to report himself in the company of this lawyer. PW4 also testified that the appellant came to the police station with his lawyer and confessed that he killed the deceased. The testimony of these witnesses was not discredited.

It is pertinent to note that the ruling on the trial within trial was delivered on 11/2/2014. There is no appeal against that decision. It is too late in the day for learned counsel to raise the issue of voluntariness of the statement at this stage. It has not been shown that the findings of the two lower Courts that it was the act of the appellant that caused the death of the deceased, are perverse. They are endorsed by me.

The final ingredient of the offence is that the killing was intentional with the knowledge that death or grievous bodily harm would be the likely outcome. ​PW3 testified that the deceased was shot in the back at close range which led to laceration of the heart and lungs and heavy bleeding. There can be no doubt that in shooting the deceased in the back at close range, even as he was running away, death or grievous bodily harm was the natural consequence. It can therefore rightly be inferred that the appellant intended the natural consequences of his act.

In other words, he intended to kill the deceased or inflict grievous harm on him. See Garba vs The State (2000) 4 SC (Pt.II) 157; Ibikunle vs. The State (2007) 2 NWLR (Pt. 1019) 555. Thus, the third ingredient was also proved beyond reasonable doubt. The sole issue in this appeal is accordingly resolved against the appellant.

In conclusion, I am not persuaded to interfere with the concurrent findings of fact made by the two lower Courts, which have not been shown to be perverse. I find no merit in this appeal. It is hereby dismissed.

The judgment of the lower Court delivered on 30/6/2017 which affirmed the appellant’s conviction and sentence by the trial Court, is hereby affirmed. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, obliged me a draft copy of the lead judgment just delivered and I wholly agree with the reasons and conclusion reached therein.

The main issue in this appeal is as reformulated by my learned brother, to wit: “whether the Court was right in affirming the judgment of the trial Court, which held that the prosecution proved the appellant’s guilt beyond reasonable doubt.”

The position of the law is settled that in order to prove a case of murder, the prosecution must establish that: (1) The deceased has died, (2) The act of the accused was the direct or probable cause of death of the deceased, (3) The action of the accused was intentional to cause death or grievous bodily harm to the deceased. See Abbas v. The People of Lagos State (2019) 16 NWLR (pt. 1698) 213 – Akinlolu v. State (2019) 5 NWLR (pt.1665) 343 – Mathew v. State (2019) 8 NWLR (pt. 1675) 461 – Tobi v. State (2019) 8 NWLR (pt. 1673) 74.

In order to establish the above ingredients, the prosecution may rely on any or all of the following forms of evidence: (a) Evidence of an eye witness or direct evidence, (b) Circumstantial evidence, or (c) Confessional statement of the accused person. See Hamza v. State (2019) 8 NWLR (pt. 1699) 418 – Anyim v. State (2019)8 NWLR (pt. 1675) 513 – Apugo v. State (2006) 15 NWLR (pt. 1002) 227

In the instant case, the Appellant gave a graphic account of how he shot and killed the deceased in Exhibit B. The said Exhibit B was admitted in evidence after a trial within trial was conducted to ascertain its voluntariness. I hold the view that the Court was safe to rely on the Appellant’s confessional statement to convict him as a confessional statement is the best form of evidence to ground conviction. See Oseni v State (2012) 5 NWLR (pt. 1293) 351.

In the final analysis, this appeal is bereft of any iota of merit. I also dismiss it. I abide by the consequential orders in the lead judgment. Appeal Dismissed.

EJEMBI EKO, J.S.C.: The Appellant’s conviction by the trial Court was affirmed by the lower Court. In this further appeal, the Appellant has raised and argued two issues. The totality of these two issues is the complaint that his conviction, affirmed by the lower Court, was not upon proof of his guilt beyond reasonable doubt. The appeal therefore is a complaint on pure facts against concurrent findings of by the two Courts below.

The Appellant’s brief, settled by Chief J. N. Okongwu of Counsel, does not establish any perversity of the concurrent findings of fact. The brief is nothing but a rehash and further narration of all that happened before this appeal, with occasional interjection of some rhetoric queries and no concrete answers thereto without, also, any concrete attack on the rationes decidendi of the decision appealed.

The prosecution’s case is that: the PW1, the father of the deceased, heard the Appellant confess to the alleged murder when he (the Appellant) was making his statement at the Police Station in the presence of one Barrister Oko, who brought him (the Appellant) to the Police Station to surrender to the allegation of murder against him.

The Appellant, at the trial, did not call Barrister Oko to rebut this evidence of the PW1, in order to cast reasonable doubt on it, in discharge of the defendant’s evidential burden as placed on him by Section 139(1) & (2) of the Evidence Act, 2011 that provide – 139(1) Where a person is accused of any offence, the burden of providing the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which is charged is upon such person. (2) The burden of proof placed by this part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross-examination or otherwise, that such circumstances in fact exist.

Sections 131(2) and 136(1) of the Evidence Act also place on the Appellant the duty to refute or rebut the PW1’s evidence that he confessed to the alleged murder. The cross-examination did nothing to discredit him on his inculpatorily adverse evidence. The defence in criminal proceedings, upon any adverse evidence of the prosecution, has the evidential burden of casting reasonable doubt on the adverse evidence of the prosecution.

The PW4, who recorded Exhibit B, flaunted as the confession of the Appellant to the alleged murder, testified that he recorded the said Exhibit B in the presence of Barrister Oko. He was categorical that in the presence of the said Barr. Oko, the Appellant confessed to the alleged murder. The evidence of PW1 and PW4 are mutually corroborative. They also corroborate the voluntary making of Exhibit B by the Appellant. Upon Trial-within-trial the trial Court affirmed this fact.

The ruling of the trial Court, that Exhibit B, a confessional statement, was voluntarily made by the Appellant, was an appealable decision which was not appealed or challenged. The effect of the failure to appeal the adverse decision, on which Exhibit B was admitted in evidence against the Appellant, is that the decision subsists and remains binding on the parties: F.I.B. Plc. v. PEGASUS TRADING OFFICE (2004) 4 NWLR (pt. 863) 369.

A party who failed to appeal against a finding of fact or point of decision against him by the trial Court cannot be heard to question that finding or point of decision subsequently: PETER DABUP v. HARUNA BAKO KOLO (1993) 12 SCNJ 1; (1993) NWLR (pt. 317) 254 (SC).

Exhibit B is a confessional statement. On the defendant’s confession alone, provided the confession is direct and positive and its voluntariness is properly proved, he can be convicted or his conviction can be sustained. See ACHABUA v. THE STATE (1976)12 SC 63; BATURE v. THE STATE (1994) 1 NWLR (pt. 32) 267.

On the whole, I resolve in favour of the Respondent, and against the questions whether: 1. the confession, Exhibit B and alluded to in the evidence of PW1 and PW4, was voluntary; and 2. the guilt of the Appellant for the alleged murder was established beyond reasonable doubt?

The decision appealed is unassailable. I agree with my learned brother, K. M. O. Kekere-Ekun, JSC that this appeal, lacking in substance be, and is hereby dismissed in its entirety. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice MKO Kekere-Ekun, JSC has served upon a copy of the draft of judgment just delivered.

I whole heartedly concur with the reasoning expressed in the judgment to the conclusive effect that the concurrent findings of the two Courts below are apparently not perverse. And it is a well settled doctrine beyond peradventure, that the Supreme Court does not normally interfere with the concurrent findings of Courts below unless such findings are established to be perverse, or that there was a substantial error either in the substantive orprocedural law, thereby likely to result in a miscarriage of justice.

See SOKWO VS KPONGBO (2008) All NWLR (Pt. 410) 680 @ 695-696 Paragraphs H – A; 697 paragraphs A – G, OGUNJUMO VS. ADEMOLU (1995) LPELR – SC 232/1991; WILLIAMS VS. JOHNSON (1934) 2 WACA 253; OGUNBAYO VS THE STATE (2007) 3SC (Pt. 11) 1 @ 27 lines 25 – 35; DOMINIC PRINCENT VS THE STATE (2002) 12 SC (Pt. 1) 137; (2002) 12 SC NJ 280 @ 300.

Hence, having adopted the reasoning and conclusion as mine, I too hereby dismiss the appeal and affirm the Appellant’s conviction and sentence passed thereupon by the Court below.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC. I am in agreement with the reasoning and the conclusion contained therein.

The facts leading to this appeal have been admirably set out in the lead judgment and I see no need to repeat same. 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. See OMOREGIE V. STATE (2017) LPELR – 26466 (SC); OJO V. STATE (2018) LPELR – 44699 (SC); KAMILA V. STATE (2018) LPELR – 43603 (SC).

In the instant case, the trial Court relied heavily on Exhibit B, the confessional statement of the Appellant as well as the circumstantial evidence of PW1 and PW4 in convicting the Appellant. A close consideration of Exhibit B would reveal that it is direct, positive and unequivocal in pointing to the fact that the Appellant committed the offence of murder, for which he was convicted. The trial Court could therefore convict the Appellant solely on Exhibit B. See NWEZE V. STATE (2017) LPELR – 42344 (SC).

However, the trial Court went to seek corroboration of the Appellant’s confessional statement with other evidence on record and found that the confessional statement was corroborated in materials particular.

Appellant’s counsel argued that the evidence of PW1 to the effect that he heard the Appellant confess to the police that he killed the deceased in the presence of a lawyer constitutes hearsay evidence and is therefore unreliable. With due respect to learned counsel, this argument is misconceived and does not represent the correct position of the law. By virtue of Section 126 (b) of the Evidence Act, 2011, the said evidence of PW1 constitutes direct evidence. Section 126 (b) provides as follows: “126.

Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to – (b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.” The aforesaid evidence of PW1 was therefore rightly relied on by the two lower Courts.

For the above reasons and the more elaborate ones brilliantly adumbrated in my Lord’s lead judgment, I too hold that the appeal is lacking in merit and ought to be dismissed. The conviction and sentence of the Appellant as imposed by the trial Court and affirmed by the Court below are hereby affirmed. Appeal dismissed.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant was arraigned before the Federal High Court, Abuja, along with one Saheed Oluremi Adewumi on a six-count charge, of various offences under the Terrorism (Prevention) Act, 2011, as amended.

The charges are as follows: Count 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

Count 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran had information which you know to  be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying of Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as

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reasonable practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

Count 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Iran and Dubai UAE received from AMIR, an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13(1) (a) (i) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act.

Count 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR, an Iranian Terrorist, now at large, and did recruit the following: Saheed Oluremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Mohammed Yusuf and you therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended. Count 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI

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ADEWUMI, and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended.

Count 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUMI, between September 2011 and December 2012 at Lagos, through the technological devices including camera supported the commission of terrorist act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

They were arraigned on 28th August, 2013. They both pleaded not guilty to each of the six counts. The trial commenced on 22nd October, 2013. The first prosecution witness was one James Eneizi from the Department of State Services (DSS). He testified that the DSS received some intelligence reports that some Nigerians were recruited by Iranians and trained in acts of terrorism and returned to Nigeria to perpetrate such activities. He testified that the officer in charge of

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counter terrorism directed that the report be investigated. It was in the process of the investigation that the appellant was arrested in Ilorin on 17th December, 2012. The second accused was arrested a week later. The home of the appellant was searched. Some media items, the sum of US$5,800 and other incriminating items were recovered. He was taken to the national headquarters of the DSS in Abuja.

PW1 testified that two officers were assigned to interview the suspects and to witness their statements, which they wrote themselves. He stated that the appellant made two statements on 8/2/13 and 25/2/13. He was brought before him and he confirmed that he made the statements voluntarily, he (PW1) endorsed them. At the point of tendering the statements in evidence, an objection was raised on the ground that the statements were not made voluntarily. A trial-within-trial was conducted to determine the truth or otherwise of the assertion.

In a considered ruling delivered on 22/10/2014, the Court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1. The Court held, inter alia: “It is clear that one of the easy

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ways of determining the voluntariness of a confessional statement said to have been made by an accused person is when the said statement is taken before a Superior Police Officer for confirmation and countersigning. It is my humble view that if the accused is objecting to the voluntariness of a confessional statement said to have been made by him, he would have ample opportunity during confirmation before a Superior Police Officer to object to its voluntariness.

In the case at hand, the 1st and 2nd accused persons have admitted being taken before TPW2 for the confirmation of their confessional statements, but none of them testified on objecting to the voluntariness of their statements before TPW2. Having regard to the pronouncement of the Supreme Court in the Alarape’s case, supra, the confirmation of the 1st and 2nd accused persons’ statements by TPW2 has made the determination of the voluntariness of their statement a lot more easier.

In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law and as stated by the Supreme Court in the cases of Alarape Vs The State and Akpan Vs The State, both supra.

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…the said statements are hereby admitted as Exhibits B, B1 and C, C1 respectively.”

The appellant was dissatisfied with the ruling and appealed to the Court below. The appeal was unsuccessful, hence the instant appeal. The notice of appeal filed on 18/6/2009 but deemed filed on 8/10/20 contains 10 grounds of appeal. At the hearing of this appeal on 11th March, 2021, M.I. HANAFI ESQ., adopted and relied on the appellant’s brief filed on 20/11/2020 in urging the Court to allow the appeal. CHIOMA ONUEGBU ESQ., Principal State counsel, Federal Ministry of Justice, adopted and relied on the respondent’s brief filed on 4/2/21, in urging the Court to dismiss the appeal.

The appellant formulated 3 issues for determination, to wit: 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible? (Grounds 1, 2, 4, 5, 6, 7, 8 and 9). 2. Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the

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grounds of appeal raise fresh issues not raised before the trial Court? (Ground 3). 3. Did the Court of appeal consider the issue raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice? (Ground 10).

The respondent raised a sole issue for consideration by this Court, namely: Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?

I am of the view that the appellant’s issue 1 is sufficient to resolve this appeal. I adopt it.

SOLE ISSUE Whether the Court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made?

In support of this issue, learned counsel referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and as defined in several decided authorities, including Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @467 H; State vs Gwangwan (2015) 13) 92 @ NWLR (Pt.1477) 600 @ 624F; Gbadamosi vs The State (1992) 9 NWLR

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(Pt. 266) 465 @ 489 B – C; Iregu vs The State (2013) 12 NWLR (Pt.1367) 92 @ 117 G – H. Learned counsel submitted that the evidence of the respondent at the trial within trial (TWT) was to the effect that several interviews were conducted with the appellant from the time of his arrest on 18/12/2012. That he volunteered to make statements, which he did, after the cautionary words were administered to him on 8/2/2013 and 25/2/2013. That each time, after making the statements, he was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made.

It was further stated that the interview sessions were recorded on four DVDs, which were tendered in evidence during the TWT.

On the other hand, the appellant maintained that the statements were made under duress. It was his contention that he was made to undergo a lie-detector test during the oral interview using a polygraph machine. He alleged that the machine was used without his consent and therefore violated his fundamental right to remain silent as provided in Section 35 (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. On the right of an

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accused person to remain silent, he referred to Abadom Vs The State (1997) 1 NWLR (479) 1 @ 20 H; Mbele vs The State (1990) 4 NWLR (Pt.145) 484 @ 500 – 501 H – A; Utteh vs The State (1992) 2 NWLR (Pt.233) 257 @ 274 G. He reproduced the evidence of the appellant at pages 476 – 479 of the record as to what transpired during the use of the polygraph machine. He argued that the use of the machine deprived the appellant of the discretion to remain silent and therefore the two statements were tainted with an incurable virus.

He referred to a Canadian authority: R Vs Beland & Phillips (1987) 2 SCR 398, where the Canadian Supreme Court rejected the use of the results of a polygraph test conducted on the suspects.

Learned counsel argued that PW1’s denial of any knowledge of a polygraph test conducted on the appellant was feeble at best, having regard to the fact that PW2 testified that he had attended courses and training on the use of polygraph machines. He surmised that such training would be unnecessary if there was not intention to utilise it. He was of the opinion that the respondent ought to have invited the persons who conducted the test, named by the

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appellant, to rebut his evidence. He submitted that in the absence of evidence in rebuttal, there was no reasonable ground to disbelieve the appellant’s testimony. He observed that the learned trial Judge did not make any reference to the conduct of the polygraph test in his ruling. He noted further that the Court below held that there was no nexus between the use of the polygraph machine and the making of the appellant’s statements. He insisted that the circumstances described by the appellant was proof that the confession was obtained by reason of threat or fear instilled in him.

Learned counsel also observed that the prosecution failed to tender the appellant’s extra-judicial statements which were being challenged, during the TWT. He submitted that they were tendered for identification only. He submitted further that the failure to tender the statements was fatal to the TWT proceedings. He submitted that the law is settled that the Court cannot rely on a document that is not properly before it. He argued that the observation by the lower Court, to the effect that neither party applied to tender the statements and that the appellant was at liberty to

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apply for them to be admitted to enable him rebut the evidence of voluntariness, was erroneous, as it had the effect of shifting the burden of proof on him. He submitted that the burden of proof lies on the respondent. He referred to Gbadamosi Vs The State (supra); Iregu Vs The State (supra); Alabi Vs The State (1993) NWLR (Pt. 307) 511 @ 531A. He submitted that without the tendering of the statements, the Court was left with the ipsi dixit of the respondent’s witnesses that the appellant made any confessional statement at all.

In reaction to the finding of the lower Court that the appellant failed to utilise the opportunity of confirmation before PW2 to deny the voluntariness of his statement and that he also failed to use the opportunity of the TWT to do so, learned counsel argued that the appellant’s testimony at the TWT was an attack against his entire testimony. He noted that the appellant testified that PW2, the Chief Investigating Officer, interacted with him constantly throughout the investigation, threatened him and also promised him amnesty if he made a statement.

He contended that PW2 was an interested party and it would have made no

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difference if he had mentioned that he was threatened. On whether the appellant challenged the evidence of confirmation proffered by PW2 at the lower Court, he referred to Grounds 14 and 15 of the notice of appeal before that Court.

Learned counsel argued that the appellant testified that he made a statement on the 23rd/24th of December, 2012 to the white men who conducted the polygraph test on him, which was not tendered by the respondent, despite being served with a subpoena to produce it. He submitted that where the accused person challenges the voluntariness of the confessional statements sought to be tendered, the prosecution has a duty to tender all the extra-judicial statements made by him, including those that are favourable to him. He referred to Okonkwo vs The State (1998) 8 NWLR (Pt.561) 210 @ 248.

He submitted that the failure to tender the statement was a breach of the appellant’s right to fair hearing.

As regards grounds 13, 17, 18 and 19 of the notice of appeal, learned counsel contended that the lower Court was wrong when it held that they raised fresh issues not raised before the trial Court. He argued that ground, 13, 17, 18 and

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19 are grounds of law, which raised the issue of the validity of the TWT when the extra-judicial statements were not tendered, the failure to conduct separate TWT for each accused and the failure to separate the TWT in respect of each challenged statement. He noted that the issues were argued in the appellant’s written address at the conclusion of the TWT. He also submitted that ground 17 relates to the failure to tender the statement made on 24/12/2012, which the appellant had testified to.

He submitted further that the lower Court failed to consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal. He submitted that the Court has a duty to consider all the issues raised before it dispassionately and urged this Court to invoke the provisions of Section 22 of the Supreme Court Act, and revisit the issues.

In response, learned counsel for the respondent submitted that it is not the practice of this Court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established. He referred to Igago Vs The State (1999) 12 SCNJ 140; Nkebisi vs The State (2010) ALL FWLR

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(Pt. 521) 1407. He submitted that not only did the appellant fail to allege torture when taken before PW2 for confirmation of his statement, there were video recordings of the process of taking his statements, which were admitted in evidence as Exhibits TWT1 – TWT4. He submitted that the exhibits speak for themselves. He submitted further that while the prosecution’s case was consistent, the appellant, in a bid to deny his voluntary confession, gave conflicting evidence, which was properly evaluated and resolved against him.

He referred to the ruling of the learned trial Judge at pages 476 – 497 of the record, which was affirmed by the lower Court. He submitted that the allegation of torture was an afterthought.

Learned counsel submitted that the respondent did all that was required to establish the voluntariness of Exhibits B and B1, having regard to the provisions of Section 29 of the Evidence Act. He referred to Exhibits TWT1 – TWT4, the confirmation of the statements before PW2, as well as the uncontradicted testimonies of PW2 and PW3. He submitted that the statements were corroborated by the evidence of PW6, PW7 and PW8 in addition to admissions made

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by the appellant in the course of his defence in the TWT.

He submitted that contrary to the appellant’s contention, the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts. He submitted that appellant had the onus of proving torture, oppression and inducement in the making of his statements. He referred to Section 136 of the Evidence Act and Nwangbomu Vs The State (2001) ACLR 9. He argued that assuming without conceding that a polygraph test was conducted on the appellant, it does not detract from the voluntariness of the statements.

He noted that the appellant’s constitutional right to remain silent was never raised throughout the trial. He submitted that the allegations of threat, inducement, promise of amnesty, withholding of his eye medication and so on cannot avail him having regard to Section 31 of the Evidence Act. He also referred to Section 14 of the Act and the case of Haruna Vs A.G. Federation (2012) 49 NSCQR 1410 @ 1430; (2012) 9 NWLR (Pt.1306) 419 to the effect that what governs admissibility is relevancy and once the evidence is relevant, the Court is bound to admit it.

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He submitted that the appellant’s counsel’s submissions regarding the legitimacy of a polygraph test and his reliance on the case of R. Vs Beland & Phillips (supra) are irrelevant, as it was not an issue before any of the lower Courts. He submitted that the onus was on the appellant to prove the existence of the statement allegedly made on the 23rd or 24th of December, 2012. He also submitted that as regards Exhibits B and B1, distinct evidence was led in respect of the circumstances in which they were obtained.

He urged the Court to resolve the appeal aginsta the appellant and to uphold the concurrent findings of the two lower Courts.

Sections 28, 29 (1), (2) and (5) and 31 of the Evidence Act provide: “28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and it is not excluded by the Court in pursuance of this Section. (2) If, in any proceeding, where the

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prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section. (5) In this section, “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture. 31.

If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have

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answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given.”

There is no dispute as to the fact that the appellant’s extra-judicial statements admitted in evidence as Exhibits B and B1 are confessional.

He challenged their admissibility on the ground that they were not made voluntarily but as a result of oppression, which took the form of: (a) The conduct of a polygraph test by some white men at the behest of the DSS, during which he was shouted at and threatened by the men conducting it; (b) Denial of his eye medication for the treatment of Glaucoma from 18th – 25th December, 2012, to coerce him into speaking the truth; (c) The threat that his wife and children would be brought to see him in the interrogation room during the test; (d) Leaving him in a cold room overnight; (e) Threats and intimidation by PW2 overnight.

Where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the Courts have developed the practice of conducting a trial within trial

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(TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made. See Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 5; Gbadamosi vs The State (1992) 9 NWLR (Pt.266) 465 @ 480: Effiong vs The State (1998) 8 NWLR (Pt.562) 362. On the other hand, where the accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value.

See Ikpasa vs Bendel State (1981) NSCC 300; Ikumonihan vs The State (2018) LPELR-44362 (SC) @ 7 – 9 B – A.

The question that then arises is: whether the prosecution discharged the onus of proving beyond reasonable doubt that the statements were voluntarily made?

The respondent called three witnesses at the TWT, namely TPW1, TPW2 and TPW3, while the appellant testified in his own defence. TPW1, James Simon, testified that he and another colleague, James Khanoba were directed by TPW2, Mr. James Eneizi, the Chief Investigator, to interview the appellant and his co-accused. He stated that the appellant

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was cautioned and informed that he was not obliged to say anything but if he elected to do so, his statement would be recorded and could be used in evidence. He stated that he understood the caution and agreed to participate in the interview and that several sessions were conducted. He agreed to make a statement in writing, which he did on 8/2/13. He read over the statement and he (appellant) signed each page, while James Khanoba countersigned. He was taken before TPW2 where he confirmed that it was his statement and that he made it voluntarily. TPW2 endorsed it.

He volunteered another statement on 25/2/13 and it went through the same process of caution, countersignature and endorsement by TPW2.

TPW2, in his testimony stated that the appellant was brought before him on two separate occasions. On each occasion, he asked if he made the statements voluntarily and, on both occasions, he confirmed that he did. He therefore endorsed the statements as having been made voluntarily.

TPW3, Aliyu Usman, a technician attached to the Counter-Terrorism Department of the Department of State Services, testified that he recorded the interview sessions conducted with

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the appellant and produced DVDs which he handed over to TPW2. The interviews were recorded in four parts. The footage was saved to the hard drive of the recording kit from which DVDs were produced. They were admitted in evidence and marked Exhibits TWT1 to TWT4. All the witnesses were thoroughly cross-examined.

The appellant, as part of his defence, gave copious evidence spanning pages 476-479, 480-483 of the record, regarding the circumstances in which a polygraph test was conducted on him by the white men between the 18th – 24th December 2012. He stated inter alia: “On 23/12/12, the man that called himself Zakariyya came to my cell in the morning. He put on my head one elaborate hood. All alone, it has been the one I was wearing in that cell. He led me into the interrogation room.

He told me there and then that my wife and two of my children were on their way and they want them to see me in this miserable condition. I pleaded to him not to allow that, but he left me in the room with annoyance. At the end of the day around 5pm, the test was concluded and they told me that I have failed the test. They also told me that my family are coming up to see

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my condition. To avert my family seeing me, I must continue the next day, 24/12/12. I agreed that I rather continue the next day. My experience of the test on 24/12/12 was most stressful involving about four sessions. It was concluded around 6pm. In the end, the three of them came into the interrogation room to announce the result of the test. They asked me whether I thought I passed and I said yes. The doctor congratulated me and said I passed. The three of them in turn hugged me. The four of us sat on chairs and formed a close circuit. The team leader said if he were Mr.

President, you would go home today, but yet, don’t worry. We will write a report about you to the State Security Service and they will use it. In the end, they asked if I could work for them and I said I can’t. They persuaded further but I still said I can’t. That was how we parted with the white men on 24/12/12. The white people asked me to write a statement which I did and submitted it to them. I wrote the statement on 24/12/12 earlier and they even read it. … On 25/12/12, my eye drugs was (sic) handed over to me. …On 26/12/12, the officers moved me from that cell into another facility.”

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It is evident from the testimony above that the alleged incidents of oppression and inducement referred to were in relation to the conduct of the polygraph test, which was concluded on 24/12/12. He stated that he received his eye medication the following day, 25/12/12. Furthermore, he testified that the whole exercise ended amicably on 24/12/12, when he was hugged by the white men and congratulated for passing the test. So impressed were they that they even tried to persuade him to work for them, which he declined.

He stated that he wrote a statement on 24/12/12, which he gave to the white men.

It must be stressed here that the purpose of the TWT conducted by the trial Court was to test the voluntariness of Exhibits B and B1, the statements made on 8/2/2013 and 25/2/2013 and no more. At the time the Court ordered for the conduct of the mini trial, the only evidence before the Court was the evidence of PW1 to the effect that the appellant volunteered the two statements to him. The alleged statement made to the white men on 24/12/2012, after the polygraph test, is not relevant for this purpose. The Court below

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at pages 654 – 655 of the record held thus: “The confessional statements, whose voluntariness was disputed and was being tried and were at the end of the trial admitted as Exhibits B and B1 were made on 8/2/13 and on 25/2/13 respectively. There is nothing in the evidence showing any nexus between a polygraph test of the appellant that ended successfully in his favour on 24/12/2012, and the voluntariness of his confessions made about two months thereafter.

By his own testimony, when requested to make a written statement on the same 24/12/2012, he did so voluntarily, and if he was able to voluntarily make a written statement immediately after the conclusion of the polygraph test on 24/12/2012, then the argument that the same test that ended on 24/12/2012 in his favour did violate the voluntariness of his confessions on 8/2/2013, cannot be valid.

There is no evidence that shows how the polygraph test of to 24th December, 2012 deprived the appellant of the free will or discretion to make or not to make the confessions about two months later on 8/2/2013 and 25/2/2013. In any case, the issue here is not about the admissibility of the evidence of the

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appellant while on the lie or truth detector machine and the results of the polygraph test or the written statement he made on 24/12/2012 following the conclusion of the test. The arguments about the admissibility of the polygraph test examination and result in evidence and the Canadian judicial decision in R V. Beland & Phillips (1987) 2 B, are therefore not relevant here.”

I am in complete agreement with their Lordships in this regard, particularly as there was no attempt by the prosecution to tender any polygraph test results in evidence.

Another vital issue is the evidence of TPW2, that on each occasion when he was brought before him, the appellant confirmed that he made his statements voluntarily. The procedure of taking a suspect who has made a confessional statement before a superior officer for confirmation is not a legal requirement. It is an administrative practice that has gained judicial approval, as an additional means of ensuring that a confessional statement is voluntary. See Smart Vs The State (2016) 1 – 2 SC (Pt.

II) 41; Ojegele vs The State (1988) LPELR-2370 (SC) @ 15 – 16 B – B; Hassan vs The State (2017) 5 NWLR (Pt.1557) 1.

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It behoves any suspect who alleges that his statement was obtained under duress, to take advantage of the opportunity of being taken before a superior police officer, to complain. The appellant did not complain, rather, on both occasions he admitted that he made the statements voluntarily. Learned counsel for the appellant submitted that the appellant was not in a position to complain because the superior officer, TPW2, was complicit in his oppression. With due respect to him, his address, no matter how erudite, cannot be a substitute for evidence.

The Court below observed, and I agree with their Lordships, that if indeed, he had reasons why he felt compelled to confirm the voluntariness of his statements before TPW2, he had an opportunity during his defence in the TWT to explain his position to the Court. I also agree with their Lordships that the appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT that the statements were voluntarily made. In my view, the affirmation by the Court below of the holding of the learned trial Judge in this regard cannot be faulted.

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As observed earlier, digital recordings were made of the interview sessions and converted into DVDs, which were tendered in Court. The appellant has not raised any serious challenge to the recordings. The testimony of TPW3 remained unimpeached under cross-examination.

As regards the contention that the statements were not tendered during the TWT, the said statements were shown to and identified by TPW1 and TPW2. Both witnesses were copiously cross-examined by learned counsel for the appellant regarding the circumstances in which they were obtained. I am of the view that the issue should have been raised before cross-examination of the witnesses took place. Similarly, the contention that there ought to have been separate trials in respect of each statement and each accused, ought to have been raised at the trial.

Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or

27

defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC).

There are concurrent findings of fact by the two lower Courts that the statements, Exhibits B and B1 were voluntarily made. The appellant was unable to dislodge the convincing evidence of the prosecution witnesses that all necessary steps were taken to ensure the voluntariness of the confessions. The findings have not been shown to be perverse and I am not persuaded to interfere.

In conclusion, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court delivered on 15th April, 2019, affirming the ruling of the Federal High Court, Abuja delivered on 22nd October, 2014 admitting the appellant’s extra judicial statements in evidence as Exhibits B and B1 is affirmed. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and to underscore the support in the reasonings from which the decision came about. I shall make some remarks,

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This appeal is against the judgment of the Court of appeal, Abuja Division or Court below or lower Court, Coram: A. Aboki, A. Jauro and E.A, Agim JJCA (as they were then).

The judgment was delivered on the 15th of April, 2019 and it emanated from the interlocutory ruling of the Federal High Court Abuja rendered on the 22nd of October, 2014 in a trial within trial conducted to determine the admissibility of the statement made by the appellant.

The charge against the accused now appellant read as follows:- COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by the provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1)(a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Tehran in Iran had information which you know to be of material assistance about

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terrorist training at Tehran in Iran and the subsequent spying on Chabbad House Lagos and AA consulting and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Iran and Dubai UAE received from Amir, an Iranian Terrorist (now at large) the sum of four thousand dollars three thousand Five Hundred Euros (3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13 (1)(a)(ii) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 13 of the same Act.

COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Lagos Ilorin and Tehran in Iran agreed to recruit persons for Amir, an Iranian Terrorist now at large and did recruit the following: Saheed Louremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Muhammed Yusuf and you therefore committed

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an offence punishable under Section 10 of the Terrorism (Prevention) Act 2011 as amended. COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of the Terrorism (Prevention Act) 2011 as amended.

COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi between September 2011 and December 2012 at Lagos through the technological devices including camera supported the commission of Terrorist Act and thereby committed an offence punishable under Section 12 of Terrorist (Prevention Act) 2011 as amended.

At the trial, the Appellant and one Saheed Oluremi Adewumi were charged for various acts of Terrorism under the Terrorism (Prevention) Act 2011 (as amended). The prosecution commenced his case on the 22nd of October 2013 by calling PW1, one James Ene Izi. In the course of the trial, the prosecution, on the

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aforesaid 22nd of October, 2013, sought to tender two confessional statements of the Appellant. The Appellant raised an objection to the admissibility of the two statements under the provisions of Section 29 of the Evidence Act on the ground that the statements were not voluntarily made by the appellant.

A trial within-trial was therefore directed by the trial Court to determine the voluntariness of the statements. At the conclusion of the mini-trial, the learned trial judge in a considered ruling delivered on 22nd of October, 2014 held that the statements were voluntarily made and therefore admissible. The Appellant upon the leave of the trial Court granted on the 4-12-2014 at page 543 of the record, filed a notice of appeal dated 17th December, 2014 now copied at pages 570-579 of the record of this appeal.

The lower Court on the 15th of April, 2019 affirmed the decision of the trial Court on the admissibility of the Appellant’s statement, hence this appeal.

THE CASE OF THE PROSECUTION In proof of the voluntariness of the two statements, the prosecution called three witnesses, namely, PW1, PW2 and PW3. PW1 testified that he and one James Kanoba

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took the statements of the Appellant when the Appellant agreed to write the statements. He obtained the statements dated 8th of February, 2013 and 25th of February, 2013 from the Appellant. He thereafter took the statements to PW2, a superior investigative officer, who confirmed the voluntariness of the statements and counter-signed the statements. It is the case of the prosecution that the Appellant elected to write the statements after several interviews had with him.

PW3 also testified to the effect that he undertook the video recording of the interview sessions of the Appellant and tendered Exhibits TWT1 to TWT4 which are the video DVDs of the interviews. The witnesses were duly cross-examined by the counsel for the Appellant.

THE APPELLANT’S CASE The Appellant testified on behalf of himself and gave evidence to the effect that the two statements were not made by him voluntarily. He gave evidence of various promises, inducements, threats suffered by him in the course of making the statements. In particular, he alleged that he was subjected to a polygraph test (by the use of a lie detecting machine) before the statements were taken. He tendered

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Exhibit TWT5, a copy of the order of the Federal High Court directing his release which the prosecution refused to comply with. The Appellant was duly cross-examined by the prosecution.

THE ADDRESS At the conclusion of the hearing, the learned trial Judge directed that the parties should file written addresses in support of the evidence adduced. The address of the Appellant in the trial within trial is now at pages 383-402 while the prosecution’s reply is at pages 403-408.

The learned trial Judge dismissed the objection against the admissibility of the statements and admitted the two statements and had then marked as Exhibits B and B1.

Dissatisfied, the appellant appealed to the Court below which dismissed the appeal and further aggrieved the appellant has come to the Supreme Court on appeal.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, M.I. Hanafi adopted the brief or argument filed on 20/11/2020 in which he nominated three issues for determination, viz:- i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two

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extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. ii. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18, and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

The learned Deputy Director of Public Prosecution (DDPP) of the Federation, Chioma Onuegbu Esq., adopted the brief of argument of the respondent filed on 4/2/2021 and in it raised one issue as follows:- Whether this Court can re-evaluate the evidence before the trial Court or upon the concurrent findings of the trial and lower Court in the circumstances of this case.

I shall make use of the first issue crafted by the appellant for my purpose in the determination of this appeal. ISSUE NO. 1 Was the Court of appeal correct when it affirmed the ruling of the learned

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trial judge that he prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible.

For the appellant, it was contended that the two statements were not made voluntarily as the prosecution making the appellant undergo a polygraph test in the extraction of the statement was a violation of his right to choose to remain silent under Section 35(2) of the Constitution. He cited Abadom v The State (1997) 1 NWLR (pt.479) 1 at 20 etc.

Learned counsel for the appellant further stated that with the denial of the prosecution of the conduct of the polygraph test, the prosecution ought to have called the persons named by the appellant as the persons who conducted the test to rebut the appellant’s assertion. He cited State v Salawu (2011) 8 NWLR (pt. 1279) 580 at 605.

That since the evidence of the appellant on what transpired in the procuring of the statements remained unchallenged the version of involuntarily put up by the appellant should be accepted by the Court as the true state of what happened. ​ For the appellant, it was submitted that the failure of the prosecution to tender the extra

36

judicial statements at the at the mini trial was fatal to the prosecution’s case. That the non-tendering of the statements at the trial-within-trial deprived the trial Court of competence to pronounce on the response to the centralised portions of the statement as a line of defence.

Learned counsel for the appellant stated that the respondent failed to produce and/or tender the statement of the 23rd of December, 2012 made by the appellant. That where the confession of an accused is challenged as in this case, the prosecution has a duty to produce all the statements made by an accused person so that the Court can take an informed decision on the issue of the confession. He cited Okonkwo v The State (1998) 8 NWLR (pt.561) 210 at 260.

That a miscarriage of justice was occasioned on the appellant by the prosecution failing to produce all the statements made by the appellant as it was for the prosecution to decide which statement to produce and tender and which to withhold.

Learned counsel for the appellant took of the Court below’s non-consideration of all the issues raised and make pronouncement on them which led to a miscarriage of justice.

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He cited Ojogbue v Nnubia (1972) All NLR 664 at 669 etc. That the period between the 1st statement and the 2nd statement of the appellant is about 17 days and there was no explanation from the prosecution on the gap in taking the two confessions.

In response, learned counsel for the respondent stated that it is the duty of a trial Court to evaluate the evidence as in this case and the appellate Court cannot interfere with the findings of the lower Court where there was no miscarriage of justice. He cited Igago v State (1999) 12 SCNJ 140 etc.

That in the instant case, nothing was done to render Exhibits B and B1 unreliable instead everything was regularly done. That the burden was on the appellant who alleged torture and oppression to prove same since the prosecution led credible evidence to the contrary. He referred to Nwangbomu v State (2001) ACLR 9.

That even if the polygraph test was deployed on the appellant, it would not render involuntary statements voluntarily made. ​ The crux of the dispute over the statements of the appellant is the voluntariness or otherwise of the extra-judicial statements. While the appellant contends they were not

38

voluntarily made, the respondent submits to the contrary and it was this opposing positions that brought about the trial within trial conducted by the Court of trial to ascertain what the time position was. See Ikemson v The State (1989) 3 NWLR (pt.110) 455 at 467; Re: Osakwe (1994) 2 NWLR (pt. 326) 273 at 287; State v Gwangwan (2015) 13 NWLR (pt. 1477) 600 at 624.

The point has to be emphasized that even though it is the appellant that disputes the voluntariness of the statement the burden of proving that the statement was voluntarily made by the accused/appellant rests on the prosecution and the standard of proof is beyond reasonable doubt. See Gbadamosi v The State (1992) 9 NWLR (pt. 266) 465 at 489; Iregbu v The State (2013) 12 NWLR (pt. 1367) 92 at 117.

The respondent called three witnesses who testified that the confession was made voluntarily made. The respondent’s case is that they had several interviews with the appellant from the 18th December, 2012 when he was arrested and on the 8th of February, 2013 and the appellant elected to make a statement under caution. That again on the 25th February, 2013, the appellant also agreed to make a

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statement after the respondent applied the word of caution and after the making of the statements appellant was taken to PW2, a superior officer who confirmed from the appellant that the statements were on each occasion made voluntarily. Also that the statement were recorded in four DVDs which were tendered and admitted as Exhibits TWT1 – TWT4.

Disputing the narration of the prosecution, the appellant stated that he was subjected to a polygraph test to detect the truth and this was without appellant’s consent contrary to Section 35 (2) of the Constitution of the Federal Republic of Nigeria 1999 and led to the lack of voluntariness of the statements. Also that he was tortured. I shall quote excerpts of the testimony of the appellant at the mini trial thus:- “I was led into the interrogation room. At the interrogation room, two officers of the State Security Services came in and introduced themselves.

One said he is Zakariyya (sic Zakari) and the other said he is John. They collected my personal data and they went out. After about five minutes, they came back. They came in with two white men and the leader of the two white men introduced himself as

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George. Zakariyya (Zakari) and John advised me to cooperate fully with them. Zakariyya (sic Zakari) and John left leaving the two white men. …The interrogation continued in the same way the next day. There and then, they have to run a test on me for me to be vindicated. They said it is a “LIE DECTECTING MACHINE” and the white people said they will carry out the test on me. I resisted as I didn’t want the test on me. Because I fear the hazards on my person. They eventually brought the Lie Detecting Machine to the interrogation room.

Another white man simply referred to as “Doctor” accompanied the machine. They asked me to sit on a chair. On the chair, there was a plastic and several cord wires runs through it. As I said, there was another plastic plate for the two feet. There was a strap on my arm. There were twisted cords for lungs with metal at the two ends of the cord placed on the chest and hooked at the back. Another twisted cord was placed on the upper part of my abdomen and hooked at the back. There were other three long plastic rings with wire suspended at the end. They were inserted into three middle fingers.

All of these cords have suspended

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wires. All the wires were directed to another box. From the box, there was another cord connected to a lap (sic laptop). The first two left the interrogation room leaving the Doctor and myself. The Doctor told me that they brought milk and water. That I would be needing the milk and the water. They told me that I should be hundred percent sure of the answer I gave. Either Yes of No. They said I should not move any limb throughout the test as well as fingers and toes that I must not move my head or clear my throat and I must look straight unto the wall. That my eyes should not move.

Questions on my possible involvement on terror activities were asked, whether there was any sum of money kept somewhere. My encounter with the white people lasted seven days. The effect of the test is that on each session my energy is sapped. The Doctor started persuading me to take the water and milk and the two other white men came and joined the Doctor in persuading me to take the milk and the water. I insisted that I was not taking and said for me to continue, I must take the milk and the water to continue with the test. I reminded them each day of my drug. The interrogation is

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of two sessions every day. Morning session starts from 9.am till about 12.pm and they allow me time to pray, each day, they continue to tell me that I failed the test. The interview conducted on 21/12/2021, because it lasted for 24hours. Whereby my hands were handcuffed, chained on the legs and the two white men were alternating themselves on that day until the night. They allowed me do my night prayers and immediately thereafter, the interrogation continued.

On the first part of the night that is, around 7.30pm, they lowered to the coolest level the air-condition and left me like that till next morning to around 6a.m. I was tied as such with my hands on the back and chains on the leg and asked to sleep on an armless chair until 24th of December, 2012. Right from 18/12/2012, I felt completely spent. I do complain to them that I cannot resist the air condition and they will switch it off. On that day, that is 21/12/2012, it was a deliberate attempt to traumatise me further.

I have a strong feeling that the two white men are Israelites because the three of them speak Arabic and English. The Arabic was not a classic Arabic and it is a dialectic and they said to me,

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you don’t like us, and everything they were asking me had to do with Israel companies. Their English accent not American. I am familiar with Arabs in English, Iraq and some middle east countries and the dialect is not the same. I speak Arabic myself, I have had encounter with Israel leaders in conference in the Republic of Iran.”

The angle taken by the appellant to show the involuntariness of the statements is the fact that the trial-within-trial, the two statements were merely identified and not tendered. The Court below dealt effectively on the matter when it held thus: “there is no doubt that it is better practice for the confessional statement whose voluntariness is being tried to be part of the evidence during the trial within trial of its voluntariness.

It is obvious from the evidence, written address and the ruling in the trial within trial and the arguments in the Appellant’s brief that the contents of the confessional statements were exhaustively considered by the parties and the Court in determining their voluntariness. The prosecution had applied to tender them in evidence through PW1 in the main trial when the defence objected to their

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admissibility on the ground that they were not voluntarily made. Both sides presented their evidence during the trial within trial. Non applied that the confessions be tendered in evidence during trial. There was no dispute as to the content of the statements made by the Appellant. The dispute about the voluntariness of the confessions was based on the procedure of making those statements. The dispute was therefore determined on the basis of the evidence of the facts of the circumstance and procedure of making those statements.

If the Appellant considered that it was necessary to tender the confessions as part of the evidence in the trial within trial, to enable it rebut the evidence of the prosecution on the voluntariness of the conclusion (sic confession) he was at liberty to apply that it be so admitted for the purpose of the trial within trial. It did not do so.”

The trial Court had held that the appellant did not allege any torture when taken before TPW2 (the superior officer) and TPW3 who recorded the interview sessions did not corroborate appellant’s claims of torture, more so as the whole process of taking the appellant’s statements was recorded

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in Exhibits TWT1 – TWT4 which speak for themselves and against the appellant. The trial Court found the case of the prosecution consistent and corroborative and the allegation of torture was an afterthought and the confessional statements admitted as Exhibits B and B1. This in line with Section 29 of the Evidence Act 2011 (as amended) which is the basis of the trial-within-trial.

An area that has to be cleared in the proof of the voluntariness of an extra-judicial statement or that it was involuntarily made, is that while the burden to establish that the statement was voluntarily made rests on the prosecution, the burden of proving any particular fact such as the allegation of torture and oppression regarding the confessional statement lies on the party so asserting which in this case is the appellant. See Nwangbomu v State (2001) ACLR 9.

That a polygraph test was administered on the appellant did not detract from the voluntariness of the statement made. The same effect ensuing inspite of the statements being based on answers to a list or form of questions over 50 days of arrest, uncertainties as to if and how cautionary words were applied especially

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when such allegations remained unconfirmed or corroborated. Those happenings do not automatically translate to threat or inducement as to fatally affect the voluntariness of the statement.

It is so because Section 31 of the Evidence Act 2011 (as amended) provides as follows: “If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promised of secrecy, or inconsequence of a deception practiced on the defendant for the purpose of obtaining it or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.” It needs be said that Section 14 of the Evidence Act 2011 (as amended) stipulates to the effect that even where an evidence was obtained improperly or in consequence of an impropriety or a contraction of the law, it remains admissible unless the Court is of the opinion that the desirability of admitting such evidence is outweighed by the undesirability of admitting same.

See Haruna v A.G. (2012) 49 NSCQR 1410 at 1430.

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Indeed, the concurrent findings of the two Courts below over the voluntarily made statements in this case will not be interfered with since they did not stem from a miscarriage of justice or there was a misapplication of the law, substantive or procedural.

The statements were properly admitted by the trial Court and the Court below had no reason to hold to the contrary hence I see no basis to deviate. The appeal lacks merit and I dismiss it. I abide by the consequential orders made.

JOHN INYANG OKORO, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Kudirat Motonmori kekere-Ekun, JSC, and I wholly agree with his reasons and conclusion reached therein.

In the main, the issue in this appeal is whether the Appellant’s confessional statements admitted as Exhibits B and B1 were voluntarily made. It is in evidence that in an effort to ascertain the voluntariness of the said statements and in line with the law, a trial-within-trial was conducted after which the learned trial judge being satisfied of their veracity, admitted them in evidence. ​ The tests for determining the voluntariness of a

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confessional statement have been consistently applied by this Court in a plethora of cases as follows: (1) Whether there is anything outside the confession to show that it is true. (2) Whether the statement is corroborated, no matter how slight (3) Whether the facts contained therein, so far as can be tested, are true. (4) Whether the accused person had the opportunity of committing the offence. (5) Whether the confession of the accused person was possible. (6) Whether the confession was consistent with other facts which have been ascertained and proved in the matter. See R v.

Sykes (1913) 8 CAR 233 at 236, Ikpasa v. Attorney General of Bendel State (1981) 9 SC 7; Akpan v. State (1992) 6 NWLR (pt. 248) 439 at 460; Alarape v State (2001) 5 NWLR (pt 705) 28 at 98 – 99.

Incidentally, the Appellant’s quarrel in this appeal is not against the truthfulness of the Confessional Statements but against the voluntariness thereof. He contends that having been subjected to a lie-detector test which was concluded on 24/12/2012, about a month before he made his said confessional statements on 8/2/2013 and 25/2/2013, he was compelled

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to say the truth. That he could not deviate from the statement obtained from him with the use of polygraph machine which he contends is a violation of his constitutional right to remain silent under Section 35 (2) of the 1999 Constitution.

My Lords, the law is trite that a confession otherwise relevant does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he needed to have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and the evidence of it might be given. See Section 31 of the Evidence Act, 2011.

In the instant case, it is undoubted that the Judges rules was more than complied with by the police before obtaining statements admitted as Exhibits B and B1. I agree with the finding of the learned Justices at the Court below that there is no nexus whatsoever between the Appellant’s statement made under the alleged polygraph examination and the Appellant’s confessional

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statements admitted as evidence in Court as no recording obtainable from the polygraph machine was tendered in evidence. In any event, even if there was a lie detector test administered on the Appellant, it does not detract from the truthfulness of his confessional statements. I hold the view, and strongly so, that the Appellant’s confessional statements in Exhibits B and B1 were properly admitted in evidence.

From all I have said above and the fuller reasons adumbrated in the lead judgment, this appeal is devoid of merit and I also dismiss it. I abide by the consequential orders in the lead judgment. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The instant appeal has emanated from the Judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018. By the judgment in question, the Court below, Coram A. Aboki, A. Jauro, and E. A. Agim, JJCA (as the learned Lords then were) dismissed the Appellant’s appeal against the interlocutory ruling of the trial Federal High Court Abuja delivered on October 22, 2014.

BACKGROUND FACTS The circumstances surrounding the Appellant’s

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travails thereby leading to the instant appeal are traceable to December 17, 2012. That is indeed the day the Appellant was arrested by some operatives of the State Security Services (SSS) at his residence No. 80 Agbo-Oba Road, Ilorin, Kwara State.

In the course of investigation by the SSS operatives, the Appellant’s GSM handsets and laptop computer were exploited and analysed. The Appellant was suspected to have been involved in Iran State sponsored terrorism.

Further investigation led to the arrest of two other suspects in the persons of Saheed Oluremi Adewumi (2nd Accused person) and Suleiman Saka, both of whom were allegedly recruited by the Appellant to collect operational intelligence on Israeli and American interests in Lagos State and in other parts of Nigeria.

Eventually, the Appellant was arraigned before the trial High Court Abuja, along with Saheed Oluremi Adewumi upon a six count charge, viz: COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with

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others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran had information which you know to be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying on Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran and Dubai UAE received from AMIR an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500), and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to

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Section 13(1) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act. COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR an Iranian terrorist, now at large and did recruit the following: Saheed Oluremi Adewunmi, Sulaiman Olayinka Saka and Billiaminu Mohammed Yusuf and therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended.

COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, and others now at large between September, 2011 and December, 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended. COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, between September, 2011 and December, 2012 at Lagos, through the technological devices

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including camera, supported the commission of terrorism act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

Not unnaturally, both the Appellant and the co-accused person thereof pleaded not guilty to the six count charge in question. The charge proceeded to trial on 28/10/2013. In the course of the trial, the prosecution sought to tender two confessional statements of the Appellant. The Appellant’s learned counsel vehemently objected to the admissibility of the said statements on the ground that they were not voluntarily made by the Appellant. Thus prompting the trial Court to conduct a trial-within-trial.

At the conclusion of which the Court delivered a ruling on 22/10/2014 to the conclusive effect: In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law as stated by the Supreme Court in the cases of ALARAPE VS. STATE and AKPAN VS STATE, both supra. On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional

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statement made by the 1st and 2nd accused persons. In consequence of the above holding, the said statements are hereby admitted as Exhibits B, B1 and C and C1 respectively.

Whereupon, the Appellant appealed to the Court below vide a notice of appeal filed on 17/12/2014 with leave of Court. The Court below on its part delivered the vexed judgment on 15/04/2019, to the following conclusive effect: There is no doubt that the trial Court determined the voluntariness of the appellant’s confessions by relying on the part of the judgment of the Supreme Court in Alarape & Ors vs. The State (2001) 2 SC 14, that lays down the tests for determining the truthfulness of a confession… On the whole this appeal fails as it lacks merit. It is accordingly dismissed.

The ruling of the Federal High Court delivered in charge No. FHC/ABJ/CR/128/2013 on 24/10/20114 by A. R. Mohammed J. C, hereby affirmed and upheld.

The extant notice of appeal dated 13/06/2019 is predicated upon a total of 10 grounds. At long last, when the appeal came up on 17/03/2021, the learned counsel addressed this Court and adopted the argument contained in the respective

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briefs thereof. Thus warranting the Court to reserve the judgment to today.

The Appellant’s brief of argument, settled by M. I. Hanafi Esq., on 20/11/2020, spans a total of 26 pages. Most particularly at page 4 of the brief, three issues have been couched: i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds (sic – notice) of appeal. ii.

Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds (Sic- notice) of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds (Sic: notice) of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

Contrariwise, the Respondent’s brief settled by Chioma Onuegbu Esq., (DDPP) on 04/02/2021, spans a total of 8 pages. At page 2 of the said brief, a sole issue has been raised:

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WHETHER THIS COURT CAN RE-EVALUATE THE EVIDENCE BEFORE THE TRIAL COURT OR UPTURN THE CONCURRENT FINDINGS OF THE TRIAL AND LOWER COURT(S) IN THE CIRCUMSTANCES OF THIS CASE.

As copiously alluded to above, of the three issues raised by the Appellant in the said brief thereof, the issue No. 1 is most instructive: “(Whether) the Court of appeal was correct when it held that the Appellants extra-judicial statements were voluntarily made and therefore admissible.”

The issue no. 1 in question is predicated upon grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the notice of appeal filed on 18/06/2019.

By the issue no. 1 in question, this Court has once again been invited to determine the imperative applicability of the provisions of Sections 28 and 29 of the Evidence Act, 2011 vis-a- vis the trial-within-trial Practice and Procedure.

Invariably, the extant provisions of Sections 28, 29 and 31 of the Evidence Act (Supra) are to the following effect: 28. A confession is an admission made at time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding,

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a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence. (5) In this section “oppression” includes; torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture. 31.

If the confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in a consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered, whatever may have been the form of

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these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given. What is more, it is equally provided under Section 140 of the Evidence Act (Supra): “140.

When a fact is especially within the knowledge of any person, the burden of proving that fact, is upon him.” By virtue of the combined effect of the foregoing provisions of Sections 28, 29, 31 and 140 of the Evidence Act (Supra), the burden of proving beyond reasonable doubt, that a confessional statement was voluntarily made by the accused person squarely rests upon the prosecution. See ADEKANKI VS. THE STATE (1966) ANLR 46 @ 49; EMEKA VS. THE STATE (2001) NWLR (Pt. 734) 666 @ 681.

It is trite that in any given trial, where a confessional statement is sought to be tendered by the prosecution, the accused person (Defendant) has the right to object to the admissibility of the confession in either of two distinct ways. First, the accused may retract the confession or deny ever making same, at all. Second, the accused may opt to admit having made or signed the statement but claim however, that he did not do so voluntarily.

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Where the accused person denies ever writing, or making the confessional statement at all, the confession is still admissible in evidence, albeit the trial Court must at the conclusion of the trial determine the veracity and probative value of the said confession. See IKPASA VS.

THE STATE (1981) NSCC 300, where in this Court aptly held: It is a well established practice in this country that where on the production of a confession, it is challenged on the ground that an accused did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself.

Whatever objection be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration. See also OGUNYE VS. THE STATE (1999) NWLR (Pt. 604) 548 @ 570; EHOT VS. THE STATE (1993) NWLR (Pt. 290) 6440. However, with regard to the second instance, where the accused admits outrightly that he made and/or signed the confessional statement but

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claims that he did not do so voluntarily, it then behooves the trial Court to first and foremost determine the admissibility (or otherwise) of the confession by holding a mini trial; what is procedurally known as trial-within-trial. See OBIDIOZO VS. THE STATE (1987) NSCC 1239 @ 1246; SAIDU VS THE STATE (1982) NSCC 70 @ 80, et al.

It was equally held by this Court in OGUDO VS THE STATE (2012) ALL FWLR (Pt. 629) 1111 @ 1143 Paragraph A: Where a statement by an accused person is tendered in evidence and objection made to it on the ground that it was not made voluntarily, the Judge should first hear evidence on the point from both parties and make a ruling on the admissibility or otherwise of the document before receiving or rejecting it in evidence.

In the instant case, at page 11 (Paragraph 3.23) of the Appellant’s brief, the learned counsel has vehemently argued: 3.23 Another interesting aspect of the Appellant’s case is the issue of the failure of the Respondent to tender the two extra Judicial statements of the Appellant at the trial-within-trial in proof of its voluntariness. The Respondent’s counsel at the trial within trial,

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produced the two confessional statements of the Appellant and ensured that PW1 and PW2 identified the statements. In other words, the statement were tendered for identification only. See pages 454 line 4 and 463 line 19 of the record of appeal. The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.

It is not at all controversial, that in the course of the trial-within-trial (TWT), the Respondent called three witnesses who testified as TPW1, TPW2 and TPW3, respectively. Contrariwise, the Appellant testified as the sole witness thereof. See pages 450 – 546 of the record. The ruling of the trial Court regarding the TWT (pages 557 – 569 of the Record) is to the conclusive effect: On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional statement made by the 1st and 2nd Accused persons.

In consequential of the above holding, the said statements are hereby admitted as Exhibits B1 and C respectively.

Against the backdrop of the evidence adduced by the Respondent and the Appellant in the course of the TWT, there is no

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doubt that the Respondent had discharged the burden of proof beyond reasonable doubt that the confessional statements credited to the Appellant and duly admitted as Exhibits B and B1 were voluntarily made by the Appellant. Thus, I am unable to appreciate let alone uphold the Appellant’s misconceived argument to the effect that: “In other words, the statement (sic) were tendered for identification only … The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.”

The foregoing submission of the Appellant’s learned counsel is, with possible deference, misconceived and highly preposterous, to say the least!

Cherishingly, there is every cogent reason for me to uphold the finding of the Court below (pages 677 – 678 of the Record) to the conclusive effect: Beyond the reproduction of the test lay (sic) down by the Supreme Court in Alarape & Ors Vs. The State for determine the veracity of a confession, the trial Court was focused on determining the voluntariness of the confessions and directed its mind to the facts established by the evidence of the prosecution which establish that

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voluntariness. It was not influence by its belief in the veracity of the confession in holding that they were voluntarily made.

The foregoing conclusive findings by the Court below is in my considered view, cogent, unassailable and duly supported by the evidence on record.

In the circumstances, the issue no. 1 ought to be and same is resolved against the Appellant.

As aptly postulated herein above, the rule governing the trial-within-trial procedure operates exclusively regarding cases questioning the voluntariness or otherwise of confessions. Undoubtedly, the rule does not apply to questions of weight to be attached to admissible evidence admitted. Unarguably, the question of weight of evidence is always determined, as in the instant case, at the end of the trial in regard to the totality of the evidence before the trial Court. This trite fundamental doctrine, has over the years been reiterated by this Court in plethora of authorities. See R. VS.

NWIGBOKE (1959) 4 FSCC 101 @ 102; IGBINEWKA OWIE VS. THE STATE (1985) 4 SC (Pt. 2) 1; (1985) NWLR (Pt. 3) 470, (1985) LPELR – 2847 (SC) Per Karibi- Whyte, JSC @ 24 – 24 Paragraphs F – A.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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Most particularly, in the case of EGBOGHONOME VS. THE STATE (2001) 2 ACLR 262, this Court made it categorically clear, that the law is most unequivocal to the effect that the inconsistency rule would not be applied to exclude a confessional statement duly proved. Indeed, it is incumbent upon the trial Court to assess the veracity and quality (or otherwise) of the alleged confessional statement notwithstanding the retraction thereof by the accused person. As aptly held by this Court in EGBOGHONOME VS.

THE STATE (Supra): I am now convinced by the forceful submissions of Uwaifo, JCA correctly stated the law. He was right that the decision of this Court in Oladejo’s case was a departure from the long established principle relating to consideration of confession and its retraction. Confession and testing any of the accused person shall be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision. Per Bello, CJN @ 293 – 294. Again, in UBIERHO VS.

THE STATE (2005) All FWLR (Pt. 254) 804, this Court aptly held: “Now, it is settled law that the fact that an accused has retracted a

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confessional statement does not mean that the Court cannot act upon it.” Per Oguntade, JSC @ 819.

In the circumstances, having effectively resolved the issue no. 1 against the Appellant, the appeal resultantly fails and same ought to be dismissed.

Hence, against the backdrop of the foregoing postulation, and the well detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice M.K.O Kekere-Ekun, JSC, I too hereby dismiss the instant appeal. Accordingly, the judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018, thereby affirming the ruling of the Federal High Court, Abuja delivered on October 22, 2014, is hereby affirmed. Appeal stands dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The Federal High Court in its ruling delivered on the 22nd of October, 2014 dismissed the objection against the admissibility of the confessional statements of the Appellant (Exhibits B and B1).

The Appellant was dissatisfied with the said ruling of the learned trial judge and consequently appealed against the decision vide notice of

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appeal filed on 17th of December, 2014. The lower Court in a judgment delivered on the 15th of April, 2019 dismissed the Appellant’s appeal for lack of merit.

Still dissatisfied with the judgment of the lower Court, the Appellant appealed to this Court by filing a notice of appeal containing 10 grounds.

The following three issues were formulated for determination in the Appellant’s brief of argument filed on 20/11/2020 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. 2. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent.

Ground 3. 3. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10

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In the Respondent brief of argument filed 4/2/2021, a sole issue was couched as follows- “Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?”

I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun JSC and I agree that the appeal lacks merit and should be dismissed.

The Appellant’s grouse is that there was a breach of Section 35(2) of the 1999 Constitution wherein he was forced to take a polygraph test against his will. He further stated that the taking of the polygraph test affected or influenced his narration on the confessional statement as he was also coerced into writing the confessional statement which was merely identified and was not tendered during the trial within trial.

In dealing with the question of the confessional statement not being tendered but merely identified, I will adopt the position of the learned trial Judge where he stated that it was not the content of the confessional statement that was in dispute but the voluntariness of the statement.

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The Appellant in his testimony stated that the polygraph test on him using a lie detector started on the 18/12/2012 and ended 24/12/2012 and the result was announced to him by the doctor who administered the test and that he passed the test. The confessional statements admitted in evidence as Exhibit B and B1 were made on 8/2/2013 and 25/2/2013 respectively.

As accurately put by the lower Court, there is nothing in evidence to show that there was a nexus between the polygraph test and the confessional statements, the Appellant failed to show how a polygraph test affected his confessional statement made two months after and also how the polygraph test deprived him of free will after two months. This line of argument by the Appellant indeed lacks substance. ​ The concurrent findings of the two lower Courts are unshakable and devoid of any element of perverseness.

For this and the more comprehensive reasons given in the leading Judgment, I also hold that this appeal is devoid of merit and it is accordingly dismissed. Appeal dismissed.

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Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Appellant’s appeal was dismissed and the judgment of the Delta State High Court sitting in Sapele delivered by E.N. Emudainohwo J. (Mrs.) on the 16th July, 2012 was affirmed.

BRIEF STATEMENT OF FACTS The Appellant was charged on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.

​In a bid to discharge the evidential burden imposed on it by law, the Respondent as prosecution at trial called three witnesses who testified as PW1 – PW3 and tendered seven exhibits marked Exhibits P1 – P7. The Appellant testified in his defence and called one other witness without tendering any exhibit. PW1 is the step father of the deceased; PW2 is the investigating police officer (IPO), while PW3 is the medical practitioner who conducted autopsy on the deceased. Exhibit P1 is the statement of the deceased, Exhibit P2 – P4 are negatives and photographs of the

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deceased, Exhibit P5 is the statement of the Appellant, Exhibit P6 is the attestation form of a superior police officer on the Appellant’s statement, Exhibit 7 is the medical report showing the cause of death.

The brief facts culminating into the instant appeal are that the Appellant and the deceased, one Alero Eniyan were lovers, but the deceased’s parents did not approve of their relationship. The parents of the deceased moved her from Koko where they reside to Ologbo with a view to ending the relationship. The Appellant traced her to Ologbo which caused the parents of the deceased to move her to Ondo town of Ondo State where she found a suitor.

The deceased however returned to her parent’s place at Koko because of her sister’s birthday and her suitor came to visit her parents to inform them that he wanted to marry her.

​The case of the Respondent as prosecution was that the Appellant could not stand the deceased getting married to another man and therefore purchased four litres of acid which he poured on her. That the deceased later died as a result of injuries sustained from the acid poured on her by the Appellant.

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The Appellant on the other hand denied committing the offence and claimed that he loved the deceased. At the conclusion of trial and after the addresses of counsel, the learned trial Judge found the Appellant guilty and sentenced him to death by hanging (see pages 91 – 115 of the record of appeal). The Appellant unsuccessfully appealed to the Court below with the Court below affirming his conviction and sentence by the trial Court. (See pages 176 – 198 of the record of appeal).

In a bid to exhaust the constitutionally guaranteed right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal which has been amended. The amended notice of appeal was filed on 22nd January, 2018 and same was deemed properly filed by an order of this Court made on 17th October, 2019.

The appeal was heard on 11th March, 2021 when counsel adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal. Adopting the Appellant’s brief of argument which was deemed properly filed and served by an order of this Court made on 17th October, 2019, the Appellant’s counsel, OLUKUNLE EDUN ESQ. formulated three issues

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for the determination of the appeal to wit: i. “Whether Exhibit “P5” (the purported confessional statement) is admissible in evidence when evidence showed that it was not made by the Appellant or same was coerced from him? Distilled from Grounds 2, 4, 5 and 6 of the Amended Notice of Appeal. ii. Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt? Distilled from Grounds 1, 7, 8, 9 and 10 of the Amended Notice of Appeal. iii.

Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be interpreted as a dying declaration? Distilled from Grounds 3 and 11 of the Amended Notice of Appeal.”

Arguing issue one, counsel urged this Court to disregard Exhibit P5 as a confessional statement because it does not qualify as such under the law. He referred the Court to Section 28 of the Evidence Act, 2011 and the case of NWAKOYE V. STATE (2016) ALL FWLR (PT. 850) 1211. It was submitted that the Appellant was charged with the murder of the deceased on 6/5/2009, while PW1 and PW2 led evidence that the said

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deceased died on 22/7/2009. That Exhibit P5 only purportedly captured events that happened on 5/5/2009. He therefore submitted that the Appellant could not have on 5/5/2009, confessed to committing an offence that happened on the next day or subsequently.

​Relying on Sections 29 (2) (a) and (b) and 29 (5) of the Evidence Act as well as the cases of ONOBU V. IGP (1961) NNLR 25; STATE V. OLASHEHU (2011) LPELR – 11 (SC); STATE V. RABIU (2013) VOL. 220 LRCN (PT. 2) 120; ULUEBEKA V. STATE (2000) FWLR (PT. 11) 1827, learned counsel submitted that the Exhibit P5 was not voluntarily made due to the fact that PW2 testified that the statement was “obtained”. Exhibit P5 was also challenged on the ground that it does not contain an illiterate jurat in accordance with the provisions of Section 3 of the Illiterate Protection Law, Laws of Delta State, 2006.

Counsel submitted that while PW2 testified that the Exhibit P5 was read over to the Appellant before he thumb printed and signed same, an examination of the said exhibit would reveal that there is nothing to show that it was the Appellant whom the said Exhibit was read to. He further submitted that there is nothing

5

to show that Exhibit P5 was read to anybody in English Language, that there is nothing to show that the person to whom it was read understood it before signing.

​It was further submitted that Exhibit P6, the purported attestation to Exhibit P5 shows that Exhibit P5 was not made voluntarily or was not made at all as it was only written at the bottom of Exhibit P6 that “… I confirm/deny that it was a free and voluntary statement.” That the name of the Appellant was not written in the blank space, neither was Exhibit P6 interpreted to him.

Learned counsel further submitted that the attesting officer was not called to testify and the contents of Exhibits P5 and P6 contradicted the evidence of PW2 that the Appellant signed the documents as his signature was not on the documents.

On issue 2, counsel cited the case of OCHIBA V. THE STATE (2012) VOL. 204 LRCN and submitted that all elements of the offence of murder must be proved beyond reasonable doubt before the prosecution can succeed in such a charge. He submitted that the Respondent threw confusion into its case when it could not prove the date the deceased died, especially as the

6

Appellant was never arrested or interrogated with respect to a murder charge. That the evidence led by the Respondent’s witnesses did not support the charge that the deceased died on 6/5/2009, as stated in the information. Relying on the case of IBRAHIM V. THE STATE (2015) ALL FWLR (PT. 779) 1149, he submitted that all elements of the charge as contained in the information must be categorically proved. That no attempt was made by the Respondent to explain the material contradictions between the charge and evidence led, neither was the charge amended.

​Learned counsel also contended that there was no direct, credible or positive evidence fixing the Appellant to the scene of crime on 6/5/2009. It was submitted that the deceased could not have been able to identify the Appellant at 3:20 am when she was asleep as the alleged incident happened within minutes. That there was no picture of the door that was allegedly broken, there was no evidence that anyone heard the voice of the Appellant and there was no evidence of the lighting condition in the deceased’s room.

Learned counsel submitted that there was no way the deceased could have been coordinated enough to

7

identify the Appellant in that condition. Reliance was placed on the cases of SALE V. THE STATE (2016) ALL FWLR (PT. 822) 1635; OSUAGWU V. STATE (2017) ALL FWLR (PT. 872) 1504.

​Counsel submitted that Exhibit P7, the medical report is a worthless piece of paper as it contradicted the date stated on the charge that the deceased died. That the statement of PW3, the medical expert that on 22/7/2011 (about two years after the death of the deceased), the deceased had bandage in her head, chest and both thighs and other evidence purportedly indicating that the body was still fresh are all false. It was also submitted that PW3 admitted under cross-examination that the deceased died two years before the post mortem was conducted on her.

That no evidence was given as to how the body of the deceased was preserved, neither was there any evidence excluding any intervening cause of death considering the fact that the deceased was said to have lived for two months after the incident occurred. It was equally submitted that there was no explanation by PW3 as to how the Appellant was able to live for two months after the acid was allegedly poured on her. The case of

8

SHANDE V. STATE (2005) ALL FWLR (PT. 279) 1359 was relied on.

​It was the further submission of learned counsel that there is doubt that PW3 examined the deceased because Exhibit P7 does not contain the name of PW3 or any other medical doctor and the Court cannot presume whose name is on the document. He also submitted that Exhibit P7 was wrongly admitted and urged this Court to reject same because according to him, the exhibit ought not to have been tendered through PW3 as it could only be used to confront the witness.

On issue three, counsel submitted that the lower Court erred in holding that the deceased’s statement “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” was a dying declaration without considering the special circumstance of the case. It was further submitted that the trial Court had no power to pick and choose which version of the prosecution’s evidence to accept. The cases of UDOSEN V. STATE (2007) 4 NWLR (PT. 1023) 125; COP V. AMUTA (2017) VOL. 263 LRCN 23 were cited in support.

Learned counsel submitted that Exhibit P1 supersedes the evidence of PW1 as the deceased who made the Exhibit was

9

the only eyewitness to the alleged crime. He submitted that the lower Court was wrong to have held that both the statement of the deceased in Exhibit P1 and the evidence of PW1 were declarations made by the deceased as to the cause of her death. That the statement in Exhibit P1 is the only dying declaration as it was made directly by the deceased who was the victim of the alleged offence and the lower Court was wrong to have ignored it in considering the entirety of the res gestae. Section 40 of the Evidence Act was referred to.

Counsel urged this Court to reject the evidence of PW1 as unreliable because he was asleep when the incident occurred and he could not have heard the statement purportedly made by the deceased. On the whole, he urged this Court to allow the appeal, discharge and acquit the Appellant for the offence of murder.

​C.O. AGBAGWU ESQ., DEPUTY DIRECTOR, DEPARTMENT OF APPEAL, MINISTRY OF JUSTICE, DELTA STATE settled the Respondent’s brief filed on 16th October, 2019. The said brief was deemed properly filed and served by an order of this Court made on 17th October, 2019. For the determination of the appeal, the Respondent’s counsel also

10

formulated three issues to wit: i. “Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt? ii. Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be rightly interpreted as a dying declaration? iii. Whether Exhibit “P5″ (the Appellant’s confessional statement) is admissible in evidence?”

On issue one distilled by the Respondent, learned counsel submitted that in order to succeed in a charge of murder, the prosecution must adduce credible evidence linking the accused person with the crime and all ingredients of the offence must be proved beyond reasonable doubt. Section 135 of the Evidence Act as well as the cases of DIBIE V. THE STATE (2004) 14 NWLR (PT. 893) 257; ADEKUNLE V. THE STATE (2006) 14 NWLR (PT. 1000) 717 were cited in support. It was submitted that the evidence of PW1, PW3 as well as the holding of the learned trial Judge show that the deceased is dead.

​Counsel submitted that from the evidence of PW1 that he heard the deceased shouting that the Appellant poured acid on her body and how

11

her condition deteriorated and led to her death before the Appellant’s parents proposed a financial settlement; to the evidence of PW3 about the condition of the deceased and his conclusion that she died from corrosive chemical burns; to Exhibit P1 wherein the deceased stated that the Appellant poured acid on her and Exhibit P5 wherein the Appellant confessed to pouring acid on the deceased, there is enough evidence linking the Appellant with the murder of the deceased. That the only rational conclusion was that it was the Appellant who caused the death of the deceased by pouring acid on her.

On the third ingredient of the offence of murder, learned counsel submitted that the act of the Appellant in pouring four litres of acid on the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. Reliance was placed on the case of AMAYO V. STATE (2001) 18 NWLR (PT. 745) 251. It was submitted that the Appellant in Exhibit 5 narrated how he purchased four litres of acid and how he collected a bicycle from one Roman Emujeben which he rode to the residence of the deceased’s parents where he poured the acid

12

on her. That the law presumes a man to intend the natural consequences of his action and the Appellant clearly intended to do grievous harm to the deceased, hence he locked the bedroom of her parents to prevent help from getting to her quickly enough.

Arguing issue two, counsel submitted that by virtue of Section 40 (1) of the Evidence Act, for a statement to qualify as a dying declaration, the person making it must believe himself to be in danger of approaching death and the belief is subjective, not objective. Reference was made to the case ofKING V. THE STATE (2016) LPELR (40046) 1. He submitted that the nature and gravity of the injury inflicted and the part of the body affected ought to be considered in determining whether what the deceased said was a dying declaration.

That the statement of the deceased to PW1 ought to be considered because considering the pain caused by the corrosive effect of the acid on her body, the declaration was a true reflection of what was happening to her and was therefore a part of the res gestae. The cases of R. V. WOODCOCK (1789) 1 LEACH 500; ANEKWE V. STATE (1976) LPELR (486) 1 were relied upon.

13

Arguing issue three, learned counsel submitted that the trial Court conducted a trial-within-trial before admitting Exhibit P5 after Appellant’s counsel raised an objection to the admissibility of Exhibits P5 and P6 on the ground that they were signed under duress. He submitted that there is no evidence stronger than a confessional statement and that the Appellant in Exhibit P5 gave a graphic account of how the plot to bathe the deceased with acid was hatched, the motive behind the act and how the plan was executed. The case of OSENI V. THE STATE (2012) 5 NWLR (PT. 293) 351 was referred to.

On the contention of Appellant’s counsel that Exhibit P5 ought to contain an illiterate jurat, it was submitted that a statement made to a police officer by an accused person in the course of investigation does not fall within the protection envisaged by the Illiterate Protection Law as such does not involve the civil rights and/or obligations of either the accused person or Police officer. Reference was made to the case of JOHN V. THE STATE (2017) 16 NWLR (PT. 1591) 304. On the attestation form (Exhibit P6), he submitted that Appellant’s counsel having argued that a person who

14

thumb printed is presumed to be an illiterate cannot turn around to complain that Exhibit P6 was not signed by the Appellant. That it is obvious from the exhibit that the Appellant thumb printed and stated that he was cautioned, that he understood the caution, that after the caution, he made a statement which was reduced into writing, that the statement was read over to him before he thumb printed and that the statement was voluntarily made.

On the contention of Appellant’s counsel that the prosecution failed to prove the date of death contained in the charge, counsel submitted that 6/5/2009 as the date of death contained in the charge was the day on which the acid was poured on the deceased instead of 22/7/2009 on which she died was an error which ought not to be regarded as material because the Appellant was not misled by the error. Sections 166 and 167 of the Criminal Procedure Act as well as the case of EGUNJOBI V. FRN (2018) 7 NWLR (PT. 1621) 233 were relied upon.

In his final analysis, counsel urged this Court to dismiss the appeal and to affirm the decision of the Court below.

RESOLUTION Having read through the grounds of appeal as

15

encapsulated in the Amended Notice of appeal and the issues distilled by parties for the determination of the instant appeal, I find the issues distilled by both counsel identical. However for the resolution I consider the below stated issue as apt: “Whether from the totality of the evidence on the record and the circumstances of this case, the lower Court was right in upholding the conviction of the Appellant by the trial Court for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.”

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 ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.

​The Appellant herein was charged with the

16

offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable in Delta State.

The law has been long established in a legion of judicial authorities that before an Accused person can be convicted for the offence of murder, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt: a) That the deceased died; b) That it was the unlawful act or omission of the Appellant which caused the death of the deceased; and c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See the case of OKEREKE V.

THE STATE (2016) LPELR – 40012 (SC).

The law is also trite that the three methods of evidential proof as held by the Supreme Court Per, Ogunbiyi, J.S.C in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit: a. Direct evidence of witnesses; b. Circumstantial evidence; and c. By reliance on a confessional statement of an accused person voluntarily made.

17

To start with, having perused the Appellant’s grounds of appeal as encapsulated in the amended notice of appeal and also the submissions and arguments of the Appellant’s counsel, it is safe to conclude that the Appellant in the instant appeal has not challenged the fact that the said Alero Eniyan died. The unchallenged finding of the Court below at page 193 of the record of appeal is that: “From the disceptation (sic) in this matter there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased, Alero Eniyan is dead.”

What is to be considered in the instant appeal is whether it was the act of the Appellant that caused the death of the deceased and whether the act causing the death of deceased was intentional. The Respondent as prosecution called 3 witnesses and tendered 7 exhibits. Exhibit P5 is the Appellant’s confessional statement at pages 25 – 26 of the record of appeal wherein he stated that: “I know one Alero Eniyan, is my girlfriend. I have been into relationship with Alero Eniyan since year 2005 September.

Some time ago Alero mother warned me from her daughter that I should stay away from her daughter that she

18

don’t want me to continue a relationship with her daughter any longer. Yesterday being 5/5/09 at about 4:30 pm I was in Ughara with my new girlfriend called Magdalene. It was there in Ughara I bought 4 liter of acid on my way coming back, getting to Koko junction there is no motor to carry me to Koko. There in Koko junction I have to decide and went to one Roman Emujeben who is living in Koko junction there. And deceived him that I am a student of Uni-port. And there is no means for me to get to Koko.

It was there the man gave me his bicycle, then immediately as I got to Koko, I moved straight to No. 23 Housing Estate Korobe road Koko where my girlfriend is living, then when I got to the house I padlock her parent bedroom, then I broke the window of my girlfriend while she was sleeping I poured the four liter of acid on her body. Why I poured the acid on her body was that she was abusing me and secondly I heard that she is planning to marry another person.”

​When the confessional statement was sought to be tendered by the Respondent at trial, the Appellant objected to its admissibility on the ground that the said statement was not made voluntarily. In

19

adherence to the procedure known to our criminal jurisprudence, the learned trial judge conducted a trial within a trial wherein the voluntariness or otherwise of the said confessional statement was determined. After the close of the micro trial, the learned trial judge found the confessional statement of the Appellant voluntary and proceeded to admit the said statement together with the attestation form as Exhibits P5 and P6 respectively.

It is trite law that 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. See OSENI V STATE (2012) 5 NWLR (PT 1293) 351; FRN V IWEKA (2013) 3 NWLR (PT 1341) 285. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See ADEKOYA V. STATE (2012) LPELR – 7815 (SC).

PW1, one Eniyan Ede, the victim’s stepfather, testified at pages 54 – 58 of the record of appeal. In his testimony under examination-in-chief, PW1 testified as follows:

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“I know Alero Eniyan. I will describe her as my daughter because I brought her up. Alero Eniyan is dead. I know the accused person in the dock. I knew the accused person because he had a love affair with my daughter Alero. I had known the accused many years ago before his affair with Alero.

At about 2.30 a.m. on the 6th day of May, 2009, I was sleeping in my room with my wife when I heard Alero shout “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body.” When we heard the shout, we wanted to come out from our room only to discover that the room had been locked from outside, thereby locking us in. I was shaking with frightened anger as I could not come out. I then remembered that I had a hammer in my room. I used the hammer to force the door open, for my wife and I to come out.

When we came out, we could barely breath, because the air was saturated with the smell of the acid. We rushed Alero straight to Koko Hospital. We noticed as soon as we came out that the deceased skin, from her face, to her breast and all over her body had started selling (sic) because of the acid poured on her. I also discovered that the kitchen door has open and the

21

mosquito net was torn. When we got to the general hospital Koko, the deceased was given first aid and we were referred to Sapele General Hospital. At Sapele General Hospital, we were further referred to University of Benin Teaching Hospital Benin (U.B.T.H)… While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her, by charging (sic) her.”

Having perused PW1’s testimony on the record, it is evident that his testimony under examination-in-chief was not discredited under cross-examination. The evidence of PW2, the IPO and his findings in the course of investigation was also succinct on the fact that the Appellant poured acid on the deceased which led to her death.

​To add credence to the Appellant’s confession, one Francis Nkaoli Nwachokor, the pathologist who conducted the autopsy, testified as PW3. In his testimony at page 79 of the record of appeal, he stated as follows:

22

“I carried out an autopsy relating to the matter I was called upon to testify in connection with one Alero Eniyan on the 22nd of June, 2011. I was invited based on a Coroner’s order by a police corporal Imeh Effiong (PW2) from Koko police station to examine the body of Alero Eniyan. At about 3:15 pm on the 22nd June, 2011, I arrived at the Okparavero Memorial Hospital Mortuary. The records of Okparavero shows that the body of Alero Eniyan was deposited there on the 22nd July, 2009. The body of Alero Eniyan was identified by one Eniyan Ede (PW1) who claimed to be her stepfather.

Further examination of Alero revealed that she was aged about 16 (sixteen) years and she measured 4 feet and 11 inches in length. She was slim and dark in complexion. The body of Alero has (sic) bandaged in her head and her chest. Both ties (sic) of Alero were bandaged. Further examination showed that she had corrosive chemical burns that affected her head, face, neck, chest (anterporling) in front up to her upper abdomen. The back of Alero was also affected up to the level of the shoulders. Her entire right upper hand, from the shoulder to the finger, her left arm, that is from her elbow up,

23

her two things (sic). Further examination of her revealed that her skin on her head had shifted (sic) and the skull bone was visible. Her skin had also shifted in the neck and chest but were not revealing the underlying bones. I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in the areas that I have described…”

Under cross-examination at page 80 of the record of appeal, PW3 was unshaken as to the cause of death when he testified that: “My findings as to cause of death was as a result of overwhelming corrosive chemical burns.”

​From the unchallenged evidence of PW1 and PW3, it is evident that there are other credible evidence on the record showing that the Appellant’s confession was true and probable. Flowing from the evidence of PW1 and PW3, the Appellant’s argument and submissions in respect of the failure of the Respondent to prove the date of death goes to no issue. Although the charge sheet at page 7 of the record of appeal states that the Appellant murdered the deceased on 6th May, 2009, while the evidence of PW1 was to the effect that the deceased died on

24

the 22nd July, 2009. There are credible evidence on the record that the Appellant carried out the dastardly act on the 6th of May, 2009 but the deceased who was hospitalized after the incident, died on the 22nd July, 2009. I am of the firm view that the discrepancy in the date of death as stated on the charge sheet does not subtract from the fact that the deceased died and that it was the act of the Appellant that caused her death. As a matter of fact, the Appellant has not shown that he was misled by the error or that the error occasioned a miscarriage of justice. The case of IBRAHIM V.

STATE (supra) is poles apart from the facts of this case. See also AGBO V. STATE (2006) 6 NWLR (PT. 977) 545; AMADI V. FRN (2008) 18 NWLR (PT. 119); EGUNJOBI V. FRN (2012) LPELR – 15537 (SC) at pages 55 – 56 per Peter-Odili, JSC.

​The Appellant’s counsel in this appeal has raised a legion of objections challenging the admissibility of the Appellant’s confessional statement. One of the objections include the fact that the IPO used the word “obtained” in recording the statement of the Appellant and the other is that the Appellant’s confessional statement does not contain an

25

illiterate jurat in compliance with Section 3 of the Illiterates Protection Law of Delta State of Nigeria, 2006.

On the complaint as to the use of the word “obtained”, it is necessary to refer to the evidence of PW2 Effiong Imet, the investigating police officer (IPO). PW2 gave evidence at page 65 of the record as follows:- “I recorded the statement of the accused at Koko Police Station under caution. The accused volunteered his statement to me under caution. I recorded the statement of the accused for him in English Language… This is the statement I recorded from the accused. When I recorded the statement of the accused, I discovered that the statement of the accused was confessional …”.

Again he stated: “I can recognized the statement I recorded from the accused and the attestation form while I signed as a witness”.

The witness in his evidence in-chief consistently maintained the use of the words “the statement I recorded” and that he can recognize the statement he recorded. In view of the foregoing, the complaint of the Appellant on this ground is of no moment

​On the absence of an illiterate jurat, assuming

26

the Appellant is an illiterate and his statement was recorded in English language by PW2, the Courts have always accepted such statements without the need for an illiterate jurat. See OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793.

The rationale for this is that one of the major essence of the provisions of the Illiterates Protection Law is to ensure that the person who made the document on behalf of the illiterate is identifiable and traceable so that where there exists a doubt or there is a denial as to the correct statements that were made by an illiterate in a document, the writer would be traced to show whether the contents of the document represented the veracity of what the illiterate asserted. SeeEDOKPOLO & CO LTD VS OHENHEN (1994) 7 NWLR (PT.858) 511, FATUNBI VS OLANLOYE (2004) 6-7 SC 68.

Furthermore, the Illiterates Protection Law avails an illiterate in civil causes and in respect of documents recorded by another at his instance. Where the document creates legal rights and the writer benefits thereunder, the law sets in to protect the illiterate from any fraud by requiring the writer to comply with its requirements. Basically, compliance

27

with the law is in respect of civil matters and the emphasis is on protection of an illiterate in respect of execution of documents which may have the effect of compromising his civil rights and obligations. A statement made to a police officer by a suspect in the course of investigation does not fall within the protection of Illiterates Protection Law, as the statement does not involve the civil rights or obligations of either the accused or the police officer.

Hence, based on the foregoing postulations, the Illiterates Protection Law does not apply to statements recorded in criminal cases by the police. See JOHN V. STATE (2017) 16 NWLR (PT. 1561) 304; DAJO V. STATE (2019) 2 NWLR (PT. 1656) 281 at 299; SUNDAY V. FRN (2019) 4 NWLR (PT. 1662) 211.

On the Appellant’s issue no. 3, I am of the view that the dying declaration of the deceased as testified to by PW1 qualified as a dying declaration and same fixes the Appellant at the crime scene. ​It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he or she was going to die is admissible as a dying declaration.

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See Section 40 of the Evidence Act; AKINFE V. STATE (1988) 3 NWLR (PT.83) 729; OKOKOR V. STATE (1967) NMLR 189; KING V. STATE (2016) LPELR – 40046 (SC); OKEREKE V. STATE (2016) LPELR – 40012 (SC) at 37; EZEKWE V. STATE (2018) LPELR – 44392 (SC) at 25 – 26. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties.

The Respondent in the instant appeal through the testimony of PW1 led evidence as to actual words said as the dying declaration by the deceased and the said statement was a verifiable direct statement by the deceased, directed at the Appellant. PW1 in his evidence at trial said the deceased shouted: “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body”. The statement of the deceased when the Appellant poured acid on her as recounted by PW1 amounts to a dying declaration by the standard of the law of evidence.

Considering this issue, the Court below at page 187 of the record of appeal held that: “The lower Court held that the declaration of the deceased as testified to by PW1 was admissible as a dying declaration. I am in complete agreement.

29

The belief of a person that he is in danger of approaching death is objective and not subjective. The statement of the deceased was made when she believed that she was approaching death as a result of the acid which was poured on her and which caused her death. The statement was admissible against the Appellant in the trial where the cause of death of the deceased was in issue.”

The Appellant’s counsel in his brief made concerted efforts to make a mountain out of a molehill by raising lame issues in a bid to distract the Court from the crucial issues in the appeal.

From the overwhelming evidence on record, I hold that the Respondent had proved the charge of murder against the Appellant beyond reasonable doubt. The Appellant’s confession was proved against him. A confessional statement which is voluntarily made is an admission by the maker that he committed the offence. It is the best evidence in support of the case of the prosecution against an accused person. However, such evidence, apart from being voluntarily made, must be positive, direct, pungent and consistent with other facts as proved in the case. See the case of DAIRO V.

STATE (2017) LPELR – 43724 (SC).

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The Appellant’s confession is consistent with the evidence adduced by PW1 and PW3. This Court in the case of SMART V. STATE (2016) LPELR -40827 (SC) held as follows: “It is pertinent to state that the best form of evidence in a criminal charge and trial is where the accused makes a confession and admitting the commission of the offence. In other words, the best person seized with the knowledge of the Act complained of cannot be any other than the actor himself. Hence premium and quality placed on such evidence is conclusive that conviction on same alone is sustainable in law.”

​At this juncture and before I draw the curtain, I wish to deprecate the attitude of learned counsel for the Appellant in manufacturing stories to suit the interest of his client. In attacking the evidence of PW3, learned counsel stated in paragraphs 2.34 to 2.36 pages 12 to 13 of the brief that there was no evidence of how the deceased was preserved and that the deceased was discharged before she died. PW1 stated in clear terms that the deceased died on admission in the hospital and that the body had been in the mortuary. PW1 on page 55 lines 17 to 27

31

stated thus: “While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her by charging her. The deceased has not been buried, her remains were deposited in a mortuary.

The parents of the accused came to beg us to settle the matter by offering us financial settlement and I told them that money cannot buy the life of the deceased, whom I brought up from the age of 4 before she died at about 17 years.”

PW3 in both his evidence in chief and under cross-examination on pages 34 and 35 confirmed that the body of the deceased was preserved in the mortuary since 22nd July, 2009. At page 80, lines 9 – 12, PW3 maintained his stand to the effect that the body was preserved, even under the fire of cross-examination. Hear PW3: “The deceased had died about two years before I carried out the post mortem on her. It is possible to identify the complexion of the deceased, even though she had stayed in the

32

mortuary for a long time because the body was preserved.”

Learned counsel should refrain from manufacturing facts to suit the interest of his client. As a minister in the Temple of Justice, counsel should always be guided by raw facts as disclosed by the evidence before the Court. To be forewarned is to be forearmed, learned counsel should heed to this advice against the future.

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 appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. ll Laws of the defunct Bendel State as applicable to Delta State is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother Adamu Jauro, JSC and to register the support in the reasonings from which the decision came

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about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Benin Division or lower Court or Court below, Coram: Ugochukwu Anthony, Mudashiru Nasiru Oniyangi and Philomena Mbua Ekpe JJCA, delivered on the 7th day of June, 2016 dismissing the appeal of the appellant that there is no reason to fault the decision of the trial High Court of Delta State sitting in Sapele per E.N. Emudainowho J. that the offence of murder against the appellant was proved beyond reasonable doubt.

FACTS BRIEFLY STATED The Appellant was arraigned at the lower Court on a count charge of murder as contained in the information. The particulars of the information are stated hereunder: STATEMENT OF OFFENCE: COUNT I Murder, punishable under Section 319(1) of the Criminal Code, Cap 48, Vol. II, Laws of the defunct Bendel State 1976 as applicable in Delta State. PARTICULARS OF OFFENCE EDIKE ENEBELI (M) on or about the 6th of May, 2009 at Koko Beach within Sapele Judicial Division murdered one Alero Eniyan.

​The prosecution fielded three witnesses and tendered seven (7) exhibits. The Appellant gave evidence in

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support of his case and called one witness. Judgment was delivered at the lower Court on 16th July, 2012 wherein the Appellant was found guilty and sentenced to death by hanging. Aggrieved with the said judgment the appellant appealed to the Court below which affirmed the decision of the trial High Court.

Further dissatisfied, appellant has come before this Court to ventilate his grievances.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, Olukunle Edun, Esq. adopted the brief of argument of the appellant filed the 22/1/2018 and deemed filed on 17/10/2019. He distilled three issues for determination which are thus:- i. Whether Exhibit “P5” (the purported confessional statement) is admissible in evidence when the evidence showed that it was not made by the appellant or severely coerced from him. (Distilled from Grounds 2, 4, 5 & 6 of the Amended Notice of Appeal). ii.

Whether the Respondent was also to prove the charge of murder against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 7, 8, 9 &10 of the Amended Notice of Appeal). iii. Whether the statement of the deceased to

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PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be rightly interpreted as a dying declaration? Distilled from Grounds 3 & 11 of the Amended Notice of Appeal.

Learned counsel for the respondent, C.O. Abagwu Esq, Deputy Director in the Department of Appeals, Ministry of Justice, Delta State, adopted the brief of argument filed on 14/10/2019 and deemed filed on 17/10/2019.

He raised three issues for determination which are as follows:- (1) WHETHER THE RESPONDENT WAS ABLE TO PROVE THE CHARGE OF MURDER AGAINST THE APPELLANT BEYOND REASONABLE DOUBT? (2) WHETHER THE STATEMENT OF THE DECEASED TO PW1 THAT “DADDY OH, DADDY OH, MUMMY OH, MUMMY OH, EDIKE DON KILL ME, HE POUR AND ACID FOR MY BODY” CAN BE RIGHTLY INTERPRETED AS A DYING DECLARATION. (3) WHETHER EXHIBT “P5” (THE APPELLANT’S CONFESSIONAL STATEMENT) IS ADMISSIBLE IN EVIDENCE?

The issue No. 2 of the appellant which is the Issue No. 1 of the respondent is sufficient in the determination of the appeal and I shall make use of it as a single issue.

SOLE ISSUE Whether the respondent was able to prove the charge of murder against the appellant beyond reasonable doubt.

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Canvassing the position of the appellant, learned counsel contended that the Court should disregard Exhibit “P5” alleged to be the confessional statement made by the appellant because it does not qualify as a confessional statement in law. He cited Section 28 of the Evidence Act, 2011.

That the appellant was charged with the murder of Alero Eniyan on the 6th of May, 2005 and PW1 and PW2 led evidence that the said deceased did not die on the 6th day of May, 2009 but on the 22nd day of July, 2009. That Exhibit “P5” the purported confessional statement captured the activities of the appellant done on the 5th day of May, 2009 and no mention was made of the 6th May, 2009 or 22nd July 2009 and so the appellant could not have on the 5th day of May, 2009 confessed to an offence committed the following day or subsequent days.

For the appellant it was submitted that a statement obtained upon demand cannot be said to be voluntary. He cited Onobu v IGP (1961) NNLR 25 at 26; State v Olashehu (2011) LPELR SC 11; State v Rabiu (2013) Vol.220 LRCN (pt.2) 120 etc.

​That Exhibit “P5” did not meet the

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mandatory requirements of the provisions of Section 3 of the Illiterate Protection Law of Delta State, Law of Delta State of Nigeria 2006 as there was no jurat.

Learned counsel for the appellant stated that Exhibit “P6” the purported attestation document revealed that Exhibit “P5” was not made voluntarily or never made by the appellant.

It was contended that the evidence led by the prosecution witnesses did not support the charge that the deceased was killed on the 6th day of May, 2009 as stated in the information. He cited Ibrahim v The State (2015) All FWLR (pt. 779) 1149 at 1171-1178.

That the Court should reject the medical evidence of PW3 and the report, exhibit “7” as it was wrongly admitted in evidence. He referred to Shande v State (2005) All FWLR (pt. 279) 1365.

For the appellant it was submitted that the lower Court erred in holding that what the deceased told PW1 amounted to a dying declaration. That exhibit “P1”, the statement of the deceased did not mention the name Edike and the “P1” contradicted the evidence of PW2 and it was not for the Court to pick and choose which piece of evidence to utilise. He cited Udosen v State

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(2007) 4 NWLR (pt. 1023) 125 etc.

The learned counsel for the respondent submitted that the corpse of Alero Eniyan (the deceased) was identified by one Eniyan Ede, to PW3, Francis Nkoli Nwachohor who performed the autopsy which established that the Alero died.

He stated that an analysis of the extra-judicial statement of the appellant and the evidence of the PW1, PW3 and statement of Alero Eniyan revealed that the crucial pieces of evidence linked the appellant with the murder of the deceased.

That the deceased’s statement shouting shortly after the acid was poured on her that “Edike don kill me” was a dying declaration made so soon as the acid was poured on her with the corrosive substance on her body. He cited Anekwe v State (1976) LPELR (486) p 1 at 11.

Learned counsel for the appellant contended that the confessional statement, Exhibit “P5” was admitted after a trial-within-trial. That the Illiterate Protection Law does not apply to confessional statements recorded in the course of investigation. He citedJohn v The State (2017) 16 NWLR (pt.1591) 304 at 335. ​ He stated further that appellant cannot now complain on the error

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on the face of the charge since he was not misled. He cited Egunjobi v Federal Republic of Nigeria (2013) 3 NWLR (pt.1342) 534 at 578-579.

In a charge of murder such as the one under discourse, the prosecution must lead credible evidence to establish the essential elements of the offence which are the following: (a) That the deceased had died. (b) That the death of the deceased was caused by the accused person and (c) That the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence. SEE ADEKUNLE VS. STATE (2006) 14 NWLR (PT. 1000) Pg. 717 @ Pg. 736-737.

On the first ingredient, PW1 ENIYAN EDE, the man that brought the deceased up testified as follows: “I know Alero Eniyan, I will describe her as my daughter because I brought her up. Alero Eniyan is dead”. SEE PAGES 54 OF THE RECORD OF APPEAL

At Pg.55 of the Record of Appeal, the same PW1 stated thus: “The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died”.

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The corpse of Alero Eniyan (The deceased) was identified by one Eniyan Ede to PW3 Francis Nkaoli Nwacholor who performed autopsy. He testified as follows: “…I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damages to the tissues in these areas that I have described”.

The learned trial judge in delivering the judgment stated thus: “From the disceptation in this matter there is no contention with regard to the first ingredient, it is agreed on all sides that the deceased Alero Eniyan is dead”.

Clearly the Respondent has established that Alero Eniyan is dead. The next question is to find out whether it was the Appellant who killed the deceased?

PW1, Eniyan Ede who is the step father of the deceased stated as follows: “At about 2.30am on the 6th day of May, 2009, I was sleeping in my room with my wife when I heard Alero shout “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” …we noticed as soon as we came out that the deceased skin from her face to her breast” and all over her body had started smelling because of the acid poured on her … While at

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Aigbediae hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the Hospital to carry my pregnant wife who had been nursing her, by charging her … The parents of the accused came to beg us to settle the matter by offering us financial settlement and I told them that money cannot buy the life of the deceased whom I brought up from the age of 4 before she died at about 17 years. SEE PAGES 54 – 56 OF THE RECORD OF APPEAL.

And also during cross-examining, he said: “…I was in my bedroom with my wife when I heard my daughter shout Edike don kill me oh, he pour acid for my body oh” I did not hear the voice of another person, but I heard the sound of someone running out of my house”. SEE PAGE 58 OF THE RECORD OF APPEAL

PW3 Francis Nkaoli Nwachokor in Examination in Chief Stated: “…Further examination of Alero revealed that she was aged about 16 (sixteen) years and she measured 4 feet and 11 inches in length. She was slim and dark in complexion. The

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body of Alero was bandaged in her head and her chest. Both things of Alero were bandaged. Further examination showed that she had corrosive chemical burns that affected her head, face, neck, check (anterporling) in front up to her upper abdomen. The back of Alero was also affected up to the level of the shoulder. Her entire right upper hand from the shoulder to the finger, her left arm that is from her elbow up, her two things. Further examination of her revealed that her skin on her head had shifted and the skull bone was visible.

Her skin had also shifted in the neck and chest but were not revealing, the underlying bones. I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in these arrears that I have described”.

The statement of Alero Eniyan recorded on 13/5/2009 which was admitted and marked as Exhibit P1 through PW2, Police Constable Effiong Imeh is reproduced hereunder, viz: “On the 06/05/2009 at about 32 hours as I was sleeping one Edike Eriebeli who is my boyfriend all of a sudden somebody from door of my room and open it by force, I later recognised from door of my room

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and open it by force, I later recognised his face to be my former boyfriend by name ‘Edike Enebeli’. He poured the raw acid on me from the jerrican and immediately he ran away. I started to shout for help, not knowing that my parents were padlock by the same boy. For the past three months that I left him, he heard that I wanted to wed another boy a week ahead and that was his grievance, the boy earlier threatened that he will kill me as I refuse to marry him…” SEE PAGES 4 – 5 OF THE RECORD OF APPEAL

The Statement of the Appellant which was tendered through PW2 the Investigating Police Officer which was later admitted and marked Exhibit “P5” after a trial within trial clearly states as follows: “l know one Alero Eniyan is my girlfriend. I have been into relationship with Alero Eniyan since year 2005 September, sometimes ago.

Alero mother warn me from her daughter that I should stay away from her daughter, that she don’t want me to continue the relationship with her daughter that I should stay away from her daughter, that she don’t want me to continue the relationship with her daughter any longer, yesterday being 05/05/2009 at about 4.30pm. I

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was in Oghara with my new girl friend call Magdalene, it was there in Oghara I bought 4 litres of acid on my way coming back, getting to Koko Junction there is no motor to carry me to Koko, there in Koko Junction. I have to decide and went to one Roman Emujeben who is living in Koko Junction there and deceived him that I am a student of University of Port and there is no means for me to get to Koko, it was there the man gave me his bicycle, then immediately as I got to Koko, move straight at 23 Housing Estate, Koroba Road, Koko where my girlfriend is living.

Then when I get to the house, I padlock her parents bedroom. Then I broke the window of my girlfriend while she was sleeping. I poured the 4 litres of acid on her body. Why I poured the acid on her was that she was abusing me and secondly, I heard that she is planning to marry another person”. SEE PAGES 6 AND 7 OF THE RECORD OF APPEAL

On the totality of the evidence adduced at the trial Court, the Court below held as follow:- “The confessional statement of the Appellant, the dying declaration of the deceased and the testimony of the PW1 and PW3 as rightly found by the lower Court

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established the other two elements of the offence”.

Indeed the pieces of evidence made available to the trial Court including the confessional statement of the appellant linked the murder of the deceased to the appellant as that is the only rational conclusion in the light of the strong and overwhelming evidence proffered by the prosecution witnesses without leaving out the statement of the deceased at the point of death.

On the third ingredient, the act of the appellant by pouring four litres of acid on the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence as happened in this case. See Amayo v State (2001) 18 NWLR (pt. 745) 251. ​Judging from the intentional act of injury committed, the probability of death resulting is high and there is no difficulty for a finding by the Court that the appellant intended to cause death or inflict serious bodily harm sufficient in the ordinary course of nature to cause death.

It is settled in law the presumption that a man intends the natural and probable consequence of his acts. In the confessional statement, Exhibit “P5” the appellant admitted buying

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acid at Oghara and when he returned to Koko, he collected a bicycle from one Romanus Emujebei with which he rode to the residence of the parents of the deceased, where she also resides. He stated further in the extra-judicial statement that after he entered the house, he padlocked the bedroom of the parents of the deceased and poured the four litres of acid on the body of deceased while she was sleeping. For a fact, the appellant intended grievous harm to the deceased hence he locked the bedroom of her parents to prevent help from getting to the deceased quickly enough.

Therefore the appellant’s intendment is obvious.

The prosecution laid down a surfeit of evidence from which the prosecution proved the elements of the offence of murder beyond reasonable doubt and so the Court below was well positioned to affirm the decision of the trial Court in convicting the appellant. ​ Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike Don kill me, He pour acid for my body” can be interpreted as a dying declaration. Section 40 (1) of the Evidence Act, 2011 provides: “40 (1) A statement made by a person as to the

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cause of his death or as to any of the circumstances of the evidence which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery”. It is gleaned from Section 40(1) of the Evidence Act that for a statement to qualify as dying declaration, the person making the statement must believe himself to be in danger of approaching death.

The belief in the danger of approaching death is subjective not objective. SEEKING VS. THE STATE (2016) LPELR (40046) Pg. 1 @ Pg.58. I agree with learned counsel for the respondent that the nature and gravity of the injury and the part of the body on which it inflicted ought to be considered in determining whether what the deceased said in relation to the cause of her injury from which she died later was dying declaration or not. ​It is not necessary to prove by expression of the deceased that the made the statement in fear of impending death.

It would be inferred from the nature of the wound or cause of death

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without further express evidence that the deceased believed she was dying. When the deceased was poured with four litres of acid on her body and she made a statement saying, “Daddy oh, Daddy oh, ‘Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body”. It is clear and unequivocal that the statement was made by the deceased in imminent fear of death and believing at the time she made the statement that she was going to die.

Being taken to the Hospital after the act of acid bath by the appellant would give anyone hope of recovery, but that does not mean that the deceased did not believe she was not going to die. Thus, the statement made by the deceased to PW1 is a dying declaration and it was properly admitted in evidence by the trial Court as EXHIBIT “P1″. The raison d’etre for the principle of dying declaration as stated by Eyre C.B in the old English case of R. vs.

WOODLUCK (1789) I leach 500 @ 502 is as follows: “The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to

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falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn so awful, is considered by the laws as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice”. The deceased’s statement shouting shortly after the acid was poured on her that “Edike don kill me” was a dying declaration made so soon as the acid was poured on her and as she was smarting from the excruciating pains of the corrosive substance on her body.

In such circumstances, the declaration was a true reflection of what was happening to her and was therefore part of the res gestae. SEE ANEKWE VS. THE STATE (1976) LPELR (486) Pg. 1 @Pg. 11

​The Lower Court was correct in its summation when it held as follows:- “The lower Court held that the declaration of the deceased as testified to by the PW1 was admissible as a dying declaration. I am in complete agreement. The belief of a person that he is in danger of approaching death is subjective and not objective. The statement of the deceased was made when she believed that she was approaching death as a result of

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the acid which was poured on her on which caused her death. The statement was admissible against the Appellant in the trial where the cause of death of the deceased was in issue.”

On the admissibility of “P5” I refer to Section 28 of Evidence Act. Section 28 of the Evidence Act, 2011 defines a confession as: “Any admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime”. SEE NWAKOYE VS. STATE (2016) ALL FWLR (pt. 850) @ Pg. 1211 Ratio 6.

On the 31st day of October, 2011, the trial Court commenced a trial within-trial after the counsel for the appellant objected to the admissibility of the statement and the attestation form on the ground that they were signed under duress. On the 6th day of December, 2011, the trial judge delivered its ruling wherein he held that from the totality of all the above that exhibit “X” was voluntarily made by the accused. See page 76 and 77 of the Record of Appeal.

Furthermore, the lower Court at pg. 191 of the Record of Appeal after reviewing and evaluating the evidence on record held thus: “(Sic) in the record is the fact that

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the lower Court applied the relevant tests to ascertain the weight to be attached to the confessional statement, Exhibit P5 and found other credible evidence and circumstances which made it probable that the confession was true before proceeding to act on the same. The lower Court stated as follows on pages 112 – 113 of the records”. “I have carefully applied the tests laid down in UBIERHO VS. STATE Supra to Exhibit “P5” and I find the following to be established.

In exhibit “P5”, the accused that on 5th of May 2009 he bought 4 litres of acid at Oghara and when he got to Koko, he rode to the residence of the deceased at No. 23, Housing Estate Korogbe Road Koko. Upon arrival at No. 23, Housing Estate, he padlocked the bedroom of her parents, broke the window of Alero Eniyan (now deceased) whom he referred to as his girlfriend and bathed her with the four (4) litres of acid.

The reason for this dastardly act of the accused is that the deceased was abusing him and he heard that she was planning to marry another man… All of these pieces of evidence establish that the confession in Exhibit “P5” is time. “I am in complete agreement. The

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evidence on record contained facts as highlighted by the lower Court to show that the confession is true. The Appellant had the opportunity to committing the offence, the confession which was consistent with other facts ascertained and proved is possible and was true as far as can be tested. To that extent that confession was corroborated and admitted the essential elements of the offence charged. The confession is the best evidence that can be produced”.

It is trite in law, that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. SEE OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) pg. 351 @ PG. 387.

​As a matter of fact, exhibit “P5” the confessional statement made by the Appellant from which he tried to retract at the trial Court but failed to achieve that purpose gave a graphic account of how the plot to bath the deceased with acid was hatched, the reason behind the act and the surreptitious manner it was finally executed. Thus, we submit finally

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on this score that Exhibit “P5” the, confessional statement of the Appellant was admissible in evidence.

Appellant counsel at pg.6, paras 2.15 stated that Exhibit “P5″ (the appellant confessional statement failed to comply with the mandatory requirements of the provisions of Section 3 of the Illiterate Protection Law of Delta State; Laws of Delta State of Nigeria, 2006. We submit that a statement made to a police officer by an accused person in the course of investigation does not fall within the protection under the Illiterate Protection Law, as such statement does not involve the civil rights and/or obligations of either the accused person or the police officer.

A statement obtained from a person accused of a crime or witnesses thereto is not equated with a document that confers an interest in the writer. The statement so obtained forms part of the evidence of the prosecutor which has the burden of proving its case beyond reasonable doubt. To put it straight, the Illiterates Protection Law did not apply to the confessional statement of the appellant recorded in the course of investigation. See John v The State (2017) 16 NWLR (pt. 1591) 304 at 335.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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In respect to the purported of the Attestation form, it is obvious from it that the appellant signed it by thumb printing in the form, wherein the appellant stated that he was cautioned, that he understood the caution and it was after that caution that he made the statement which was reduced into writing, which was read over to him and again he put his thumb print impression on the statement was made voluntarily and on his own free will.

In regard to the failure of the prosecution to prove the date of death as contained in the charge. It has to be pointed out that by virtue of Section 166 of the Criminal Procedure Act, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was infact misled by such error or omission.

Therefore since the appellant failed to show that he was misled by what he perceived as a defect in the charge read to him at the trial, it is too late to complain about the defect during appellate proceedings. I place reliance on Egunjobi v Federal Republic of Nigeria (2013) 3

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NWLR (pt 1342) 534 at 578-579; Agbo v State (2006) 6 NWLR (pt 977) 545. The situation on ground is covered by Section 167 of the Criminal Procedure Act which provides thus:- “Any objection to a charge for any formal defect on the fact thereof shall be taken immediately after the charge has been read over to the accused and not later”.

In this case, the charge clearly stated the date the deceased died as the 6th May, 2009 (the date the Appellant poured acid on the deceased) instead of the 22nd July, 2009 when the deceased finally gave up the ghost. Hear “PW1” Eniyan Ede at Pg. 54 of the Record of Appeal: “At about 2:30am, on the 6th day of May, 2009 I was sleep in my room with my wife when I heard Alero shout”. Daddy oh, Daddy oh, mummy oh, mummy oh, Edike don kill me, he pour acid for my body”.

At Pg. 56 he further stated: “The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died…” ON AUTOPSY OR POST MORTEM: PW3 Francis Nkwoli Nwachokor gave evidence thus: “l am a consultant pathologist and a medical practitioner in the employment of the

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Hospital Management board, Delta State attached to the Central Hospital, Warri… As a pathologist, the duties within my purview are physical pathology which deals with tisons diagnosis, morbid, anatomy and forensic pathology which has to do with autopsy, which is called corona system. I carried out an autopsy relating to the matter I was called upon to testify in connect with one Alero Eniyan on the 22nd of June, 2011… I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in these areas that I have describe”.

SEE PAGES 78 – 790 OF THE RECORD OF APPEAL

Learned counsel for the appellant contended outside what was contained in the Record that there was no autopsy or post mortem conducted. Thus, the Lower Court had no doubts in mind when it held thus: “The lower Court then conclusively founds as a fact and held as follows at Pg. 113 of the Records; “I therefore find from the statement of the accused in exhibit “P5″ and the pathologist beyond reasonable doubt that the act of the accused by which he poured acid on Alero Eniyan caused the death of the

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deceased”. SEE PAGE 192 OF THE RECORD OF APPEAL

On the confessional statement, PW2 Effiong Imett the investigating Polite Officer in this case gave evidence at Pg. 65 of the Record of Appeal: “I recorded the statement of the accused at Koko Police Station under caution. The accused volunteered his statement to me under caution. I recorded the statement of the accused for him in English Language… This is the statement I recorded from the accused. When I recorded the statement of the accused, I discovered that the statement of the accused was confessional

Again, he stated: “l can recognize the statement I recorded from the accused and the attestation form while I signed as a witness”.

Thus, the PW2 in his examination in chief constantly used the words, “the statement I recorded” “l recorded the statement” “when I recorded” “l can recognize the statement I recorded” more than the use of the word “statement I obtained’

ON EXHIBIT “A1” THE STATEMENT OF THE DECEASED The lower Court conclusively found as a fact and held as follows at Pg. 187 of the records: “It seems apparent that at the time the deceased

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made the extra-judicial statement while on admission in the Hospital, she did not seem to think herself in danger of approaching death as a result of which she asked the question “whether she will survive in this condition”. Consequently the lower Court rightly held that the said exhibit “P1″ was not admissible as a dying declaration”.

There is abundant evidence from which the concurrent findings of the two Courts below were made and there being no perversity or misapplication of law, I cannot disturb them. The conclusion is that there is no merit in the appeal and I dismiss it. I abide by the consequential orders made. Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of perusing before now a draft of the lead judgment just delivered by my learned brother, Adamu Jauro, JSC and I entirely agree with his Lordship that the appeal lacks merit. I adopt the totality of his Lordship’s reasons advanced therein and will make only a few comments in appreciation of the judgment. ​ The position of the law is trite that the strongest evidence establishing the guilt of an accused is his own confessional statement as long as the Court

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is satisfied of the truth of the confession and in that satisfaction lies the requirement of the fulfilment of the veracity test. That is to say that the statement is corroborated by other pieces of evidence outside the confessional statement. See Ikemson v State (1989) 3 NWLR (pt. 110) 455; C.O.P. v Alozie (2017) 7 NWLR (pt. 1565) 368; FRN v Barminas (2017) 15 NWLR (pt. 1588) 177.

In the instant case, the Appellant in his extra-judicial statement admitted in evidence as Exhibit P5 gave a graphic detail of how he poured acid on the deceased. His statement was corroborated by the evidence of PW1 who is the victim’s stepfather and PW3 who conducted the autopsy. PW3 maintained that the victim died from “overwhelming corrosive chemical burns.”

I hold the view that the Court was right to admit and rely on the Appellant’s confessional statement in convicting him. The prosecution sufficiently proved the charge of murder against the Appellant beyond reasonable doubt and this Court has no reason to interfere with the concurrent findings of the two Courts below. ​ In view of these few comments and for the more elaborate reasons adumbrated in the lead

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judgment of my learned brother; I also see no merit in this appeal. It is hereby dismissed by me. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Adamu Jauro, JSC, has accorded me the privilege of a preview of the judgment just delivered. I concur with the reasoning reached therein, to the conclusive effect that the instant appeal is devoid of merits.

Hence, having adopted the said reasoning as mine, I too hereby affirm the concurrent judgment of the Court of Appeal, Benin Judicial Division delivered on June 6, 2016 in Appeal No. CA/B/239C/2013.

Accordingly, I abide by the consequential order thereby affirming the conviction and sentence of the Appellant by the Court below for the offence of murder, punishable under Section 319(1) of the Criminal Code CAP. 48 Volume II Laws of the defunct Bendel State as applicable to Edo State.

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

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Judgment

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Kwara State High Court, sitting in Ilorin, (hereinafter referred to as the trial Court) delivered on 15th day of April, 2019 by Hon. Justice S.D. Kawu in Suit No. KWS/46c/2016. The facts leading to this appeal are that on 26/5/2016, the PW2 (Inspector Stanley) and his team were on stop and search operation along Ofa/Erinle Road in Kwara State when a commercial vehicle and its occupants were stopped and searched.

In the process, a locally made pistol with four (4) live cartridges and charms (exhibits1-8) were recovered from the Appellant’s bag. The Appellant was arraigned and tried on a 2(two) count charge.

The first is for being illegally in possession of a firearm without a license or lawful authority to carry same punishable under Section 3 (1) of the Robbery and Firearms Special Provisions Act Cap R II LFN 2004 and the second charge for being a member of the Eiye Secret society punishable under Section 1 of the Secret Society Law, Laws of Kwara State. ​At the conclusion of trial, the learned trial judge convicted the Appellant on the two charges and sentenced him to two years imprisonment with the option of N20,000.00 fine in respect of the first count of illegal possession of firearms and to ten (10) years imprisonment and a fine of fifty thousand (N50,000) in respect of the second charge of being a member of a secret society.

Aggrieved by his conviction and sentence the Appellant appealed to this Court and by an Amended Notice of Appeal filed on 3/11/2021 raised eight (8) grounds of appeal as follows: GROUND ONE: The learned trial Judge erred in law when his lordship wrongfully admitted the Appellant’s statement as Exhibit P9 and attached probative value to it. GROUND TWO: The learned trial Judge erred in law in relying on Exhibit P10 in deciding whether to believe the evidence of the prosecution that the accused was found in possession of Exhibit P2 or the denial of the Appellant that it was not found on him.

GROUND THREE: The learned trial Judge erred in law when his lordship held as follows: – “From the evidence of PW2 which was never shaken under cross-examination and the contents of Exhibit P9 and P10, I am satisfied that on 26/5/2016 along Erin-Ile/Offa road, the accused was found in possession of a locally made pistol admitted as Exhibit P2 before the Court”.

GROUND FOUR: The learned trial Judge erred in law when his lordship held thus: “I am of the firm view that the state proved its case of accused’s membership of Eiye cult beyond reasonable doubt by virtue of the piece of evidence of PW2 and Exhibit P9, the locally made pistol admitted as Exhibit P2, which the Court of Appeal in unreported case of OLASILE FATAI V THE STATE, Appeal No. CA/IL/C.32/2017 delivered on 28th May, 2018 held to be a “…… one of the weapons of choice of cultist in Nigerian higher institution.

GROUND FIVE: The learned trial Judge erred in law in holding that; it is instructive to note that in his defence before the Court the accused did not specifically deny his membership of Eiye secret cult”. GROUND SIX: The learned trial Judge erred in law when his lordship relied on the tattoo of bird on the body of the Appellant to support the conclusion that the Appellant is a member of Eiye confraternity. GROUND SEVEN: The learned trial Judge erred in law when His Lordship held that contradictions in the evidence of the prosecution witnesses are not material to the determination of the case.

GROUND EIGHT: The judgment is altogether unreasonable, unwarranted and cannot be supported having regards to the evidence led. The record of appeal was transmitted on 20/8/021. The Appellant’s brief of Argument was filled on 3/11/2021. The Respondent’s brief of argument was filed on 8/2/2022. The Appellant filed his reply brief on 17/2/2022 while the appeal was heard on 01/03/2022. In his brief of argument, the learned counsel for the Appellant raised 2 (two) issues for determination. Thus: 1.

Whether or not, the learned trial Judge was right to have admitted the Appellant’s statement to the police as Exhibit P9, and to attach probative value to it. 2. Whether or not, the learned trial Judge was right in holding that the prosecution has proved its case against the appellant beyond reasonable doubt. ​In respect of issue one, counsel submitted that the learned trial Court was wrong in admitting exhibit P9 and giving it probative value, hence the conviction and sentencing of the Appellant based on the same document.

That there were evidence of torture, threat to shoot, and beating of the Appellant with cutlass which amount to oppression within the meaning of Section 29(5) of the Evidence Act which were not challenged under cross-examination. ​Continuing counsel argued that there is evidence in the trial within trial by the father of the Appellant that; “when the accused was brought out there were wounds and injury on his body and I was perplexed” – at page 90 of the record. That the injury is as a result of the beating he received with cutlass while trying to make him sign exhibit P9.

That the respondent never deemed it fit to challenge this evidence under cross-examination. That the position of the law is trite that where the piece of evidence is not challenged or contradicted, the Court is bound to act on it. That where an accused person was not cross-examined or his claim of being tortured before the statement was extracted from him would cast serious doubt on the voluntariness of the confessional statement counsel referred to Nalado v State (2019) 13NWLR (Pt. 1688) 1.

In respect of issue 2 (two) counsel argued that by Section 15 of the Secret Cults and Secret Societies (prohibition) law 2016 a secret cult or secret society includes a cult or secret association, group or body of persons (whether registered or not); That uses secret signs, oath, rites or symbols and which is formed to promote a cause, the purpose or Part of the purpose of which is to satisfy the interest of its members.

Counsel submits that in this case, there is no evidence led that the activities of Eiye Secret Society is not known to the public at larger or that the names of its members are kept secret and that the Eiye Secret Society is pursuing activities which are illegally, inimical, destructive or unlawful. ​Furthermore, that the Appellant gave evidence that he made 2(two) statements, the first being on 26/5/2016 which was voluntary and the second on 27/5/2016 which was involuntary by reason of the fact that he was asked to copy the statement already written by the police.

Counsel submitted that this was established as the prosecution did not deny or confront him on this point.

Counsel submitted that the failure of the prosecution to tender the first statement of the Appellant made on 26/5/2016 is fatal to their case, counsel referred to the cases of Olayinka V State (2007) 3 SCNJ 53, Ogudo V State (2011) 18 NWLR (pt 1278) 1. Apart from the foregoing, it is also the contention of counsel that the trial Court was wrong in using the content of exhibit P10 (Motion to bail) to reach the conclusion that exhibit P9 was made voluntarily. That exhibit P10 was not intended to contradict the evidence of the Appellant.

That it was not made by the Appellant therefore, he cannot be convicted by its content. That the reference by the trial Court to it in finding the Appellant guilty is against Section 232 of the Evidence Act. Counsel urged the Court to allow this appeal and set aside the judgment in this matter.

The learned counsel for the Respondent in his brief of argument raised a sole issue for determination thus: Whether the learned trial Judge was right in holding that the prosecution proved the offences of Membership of Eiye Secret Cult Confraternity and illegal Possession of Firearms beyond reasonable doubt against the appellant. (Relates to Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal). Counsel argued this sole issue under 2 (two) subheadings. The first is in relation to the membership of secret cult fraternity.

Counsel argued that exhibit P9 is a free and voluntary confession which detailed how and when the Appellant was initiated into the cult fraternity and his other members and rival cult members who wanted to kill him and his escape to Oshogbo. Counsel submitted that a confession alone without any corroborative evidence is enough to ground a conviction as long as the Court is satisfied that the confession is true referring to Gbenga Osho v. State (2018) 13 NWLR (Pt.1637) 474 and Stephen v. State (2013) 8 NWLR (Pt. 135) 153 AT 1670.

Continuing, counsel argued that the Appellant confessed to being a member of Eiye cult fraternity, had the mark or insignia of a bird on his left arm which is the sign of membership of the fraternity; that the cogent and direct evidence of the PW2 and PW3 the Police Officers that searched the Appellant, recovered the pistol with live cartridges and investigated the matter, coupled with the pistol which is a weapon of choice of cult found with the Appellant made the case of the prosecution as being proved beyond reasonable doubt. Counsel urged the Court to so hold.

On illegal possession of firearms, counsel argued that to sustain a conviction for the offence of illegal possession of firearm, the essential ingredients are – (1) That the accused was found in possession of firearms. (2) That the firearms were within the meaning of the Act. (3) That the accused person has no license to possess the firearms. Counsel referred to Abdullahi v. FRN (2018) LPELR-44719 and Momodu v. State (2008) All FWLR (Pt. 447) 67.

Counsel submitted that there is evidence of PW2 and PW3 that at the time of arrest of the Appellant locally made pistol (exhibit P2) and four live cartridges (exhibits P3 – P6) were found in Appellant’s possession. Exhibit P9 (Appellant’s confessional statement corroborated the evidence of PW2 and PW3. Counsel further referred to paragraph 50 of exhibit 10 (Motion for bail) where the Appellant’s father deposed on oath that “he was given the gun by a friend in order to protect himself from being attacked by members of the secret cult.

Counsel submitted that the foregoing has proved beyond reasonable doubt that the Appellant was in possession of exhibit P2, a locally made gun. Continuing, counsel argued that any lethal barreled weapon of any description qualifies as a firearm provided it can shoot a pellet. That PW2 and PW3 who are Policemen Inspector and Sergeant gave cogent and unchallenged evidence that exhibit P2 is a firearm that the Appellant failed to show that he is licensed to possess exhibit P2 (locally made gun). Counsel urged the Court to dismiss this appeal.

The learned counsel for the Appellant filed Appellant’s reply brief on 17/02/2022. I have carefully read through it and there is no reply on any points of law, rather it is a further argument of counsel, it is therefore, discountenanced. RESOLUTION The learned counsel for the Appellant donated 2 (two) issues for determination of this appeal, while the learned counsel for the Respondent donated one issue. I adopt the 2 (two) issues as raised by the counsel for the Appellant.

I shall therefore, treat the 2 (two) issues in the resolution of this appeal as follows: Issue one is; whether or not, the learned trial Judge was right to have admitted the Appellant’s statement to the police as Exhibit P9, and to attach probative value to it. The said exhibit P9 is the statement of the Appellant. It is a confessional statement.

On tendering it, the learned counsel for the Appellant objected on the ground that the statement was not voluntarily made by the Appellant, whereupon the trial Judge ordered for a trial within trial and at the end held that the statement was made by the Appellant in his own handwriting and was made voluntarily, therefore a true confession by the Appellant. Another issue raised by the learned counsel for the Appellant is that the trial Court made reference to exhibit P10 and used same in convicting the Appellant.

The law is trite and settled that a Court is entitled to look at the documents in his file and form an opinion therefrom. In view of the foregoing, the learned trial Judge was right in his decision that exhibit F9 was made voluntarily and gave it probative value. This issue is resolved against the Appellant. In respect of issue two, that is; whether or not, the learned trial Judge was right in holding that the prosecution has proved its case against the Appellant beyond reasonable doubt.

It is important to reproduce the provision of Sections 2(2), (7) and (14) of the Secret Cult and Secret Societies Prohibition Law of Kwara State as follows: Section 2(2) provides thus: No person shall – (a) Associate with a secret cult or secret society; or (b) Join a secret cult or secret society as a member; or (c) Give financial or material support to a secret cult or secret society; or (d) Participate in any activity of a secret cult or secret society.

Section 7 provides thus: Any person who – (a) Keeps in his possession or custody, or under his control any insignia, document or other property of a secret cult or secret society; or (b) Wears any insignia or is marked with any sign or symbol or tattoo of a secret cult or secret society; or (c) Uses any other object associated with a secret cult or secret society shall be presumed to be a member of the secret cult or secret society, unless the contrary is proved. ​Section 14 provides thus: Any person who contravenes the provisions of Section 2 or 8 commits an offence and is liable on conviction to imprisonment for a term of not less than 10 years but not exceeding 14 years and also to a fine of N50,000.00.

From exhibit P9, the Appellant confessed thus: “…Actually I am a member of Eiye secret cult confraternity which was initiated in year 2007 to 2008 by one Cleff in Lagos. I was given the Pistol by tope who is our No. 1 and I am No. 2. The Pistol has been in my possession since 2013 and I kept it at an uncompleted building at Iree. The said Pistol is for my personal protection. The following people are my members in Ilorin thus: 1. Lati star who is No. 4 position in the group of eiye. 2. Kapo who is No. 7 position in the group of eiye. 3. Waheed a.k.a wede he did not have any position. 4.

O.P. he was No. 5 postion in the group of eiye. 5. Basun Lanre he did not have any position there. 6. boboo he also did not have any position there. I was living at Ilorin before the incident of cultist rivalry fight occurred on April 3rd 2016. That was when our able leader Bayo Ajia was killed. During that time one Murphy…and Deji…wanted to kill me that was why I ran to Osogbo to stay with one of our relative by name Oluwabiyi… During the time of my initiation, I was given garri and rice…it was my father that asked me to go and stay in Osogbo… I was given No. 2 by Tope.

I have the mark of eiye on my left hand of my shoulder. The mark is a picture of eiye cult. The four cartridges were given to me along with the Pistol…” (Underlining for emphasis). I have held above that a confessional statement without more is capable of sustaining a conviction. The above confession of the Appellant supplied all the ingredients of the charges in this case. Not only that, the insignia of a bird was seen by the trial Judge as a tattoo on the body of the Appellant.

This Court per Ndukwe Anyanwu JCA, in the unreported judgment in Appeal No: CA/IL/33C/2020 in Tunde Zubair v The State delivered on Monday the 22nd day of March, 2021 held thus: “…The Appellant also stated that he was a member of Eiye Cult. The Appellant said he just attended the Cult programme at the weekend in Kwara Polytechnic. He also said that he had the tattoo of a bird which is the sign of their Eiye Cult. …The Appellant himself gave the name of the person who initiated him and when. He also gave the names of other cult members in Ilorin and Abuja.

The law is that there is no evidence stronger than a person’s own admission or confession… Confession made in judicial proceedings is of greater force or value than other proofs, Oche vs. The State (2007) 5 NWLR (PT. 1027) 214; Nwosu vs. The State (2004) 15 NWLR (PT.897) 446. (Underlined for emphasis). I hold that the trial Court was on solid ground when he convicted and sentenced the Appellant. I have nothing more to add. This issue is resolved in favour of the Respondent against the Appellant. I hold that this appeal is lacking in merit and it is hereby dismissed.

Judgment is entered accordingly. UZO IFEYINWA

NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother KENNETH IKECHUKWU AMADI, JCA. I must lend my voice to some issues raised in this appeal. ​The Appellant retracted his statement Exhibit 9 arguing that it was made involuntarily. However, the trial Judge held after a trial within trial that it was voluntarily made. It is interesting to note that the Appellant wrote his statement himself. In it, a lot of information only the Appellant would be ceased with was exposed in it (Exhibit 9).

It is true that an accused can be convicted on his Confessional Statement alone. In Kolade vs the State (2015) LPELR 41662 where the Court held: “Indeed, I would say that once properly admitted and is believed, a Confessional Statement nullifies or neutralizes all other statements inconsistent with it.” Per Okoronkwo, JCA. Also in Oseni vs The State (2012) LPELR 7833 where the Court held “There is no evidence stronger than a person’s own admission or confession. Such a confession is admissible. A confession made in judicial proceedings is of greater force or value than all other proofs.

A confession is more often denied or retracted. The denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie v. State (2007) 9 NWLR (pt.1038) pg.30 Ukpong v. Queen (No.1) (1961) 1 SCNLR 23 Idowu v. The State (2000) SC (pt.11) Pg.50.” Per Adekeye, JSC.

Again Tobi, JSC held in Magaji vs Nigerian Army (2008) LPELR 1814. “A confessional statement unequivocally confesses to the commission of the offence charged.” It is pertinent to also note that his Confessional Statement matches what the real picture is. The Appellant also has a tattoo of the Eiye Cult on his arm. This without let confirms his membership of the Eiye cult. This alone has corroborated all other material evidence placed before the Court. The Respondent has proved the charges against the Appellant beyond reasonable doubt.

I agree with that and also hold that this appeal is without merit. This appeal is therefore, dismissed. I also affirm the judgment of the lower Court.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA, I agree with the reasoning and conclusion therein. I dismiss the appeal and I abide by the consequential order.