Conspiracy

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YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the ruling of the Federal High Court, sitting in Lagos (the Court below) delivered on the 16th day of October, 2017 by HON. JUSTICE I.N. BUBA wherein the application of a No Case application was dismissed and the Appellant was ordered to enter his defence to the 22 counts filed against him by the Respondent. Aggrieved, the Appellant filed a Notice of Appeal dated 18/10/17 and filed on the same day setting out 5 grounds of Appeal.

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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Benin Division or Court below or Lower Court, CORAM: Helen Moronikeji Ogunwumiju, Ayobode Olujimi Lokulo-Sodupe and Tom Shaibu Yakubu JJCA which affirmed the conviction of the appellant by the Edo State High Court.

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SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant, and fourteen other Herdsmen, were arraigned before the Federal High Court, Jos, on a three-count Charge of conspiracy, possession of firearms and acts of terrorism, to wit;

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Judgment

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment) : The respondent was the Vice Chairman of the Task Force of the Youths Association of Amaorie Ozziza Community in Afikpo North L.G.A of Ebonyi State.

On 18-9-2016, as such Vice chairman, he and other leaders of the taskforce directed and led members of the said Task Force of the Youths Association of the Amaorie Ozziza to go out and force youths in the community that had refused to attend the meeting of the Youths Association holding that day at the community playground, Armed with sticks, machetes and axe, singing war songs, they invaded the home of one Ali Agha to compel him to attend the said meeting.

In the process of compelling him to follow them, they killed him by inflicting multiple machete cuts on his body resulting in acute loss of blood.

​Nine members of the group, including the respondent, were arrested by the police in connection with the incident. They were arraigned before the High Court of Ebonyi State, at Afikpo in Afikpo Judicial Division in criminal case No. HAF/24C/2017 on an amended one count charge of murder of Ali Agha contrary to Section 319(1) of the Criminal Code Law  Cap. 33 Vol. 1 Laws of Ebonyi. The respondent was the 3rd accused.

Following conclusion of evidence and addresses by the prosecution and the defence, the trial Court rendered its judgment on 15-10-2018, holding inter alia that- “The firm view of this Court is that all the accused persons in this charge are caught up by Section 7 of the Criminal Code Law Cap 33, vol. 1, Laws of Ebonyi State of Nigeria, 2009. ANIGBOGU V.

UCHE JIGBO (2002) 10 NWLR (Pt. 776) page 472 at page 477 on need for local associations not to violate citizen’s rights to freedom of association, Court of Appeal held thus: “Desirable as development project in the community may be, there must be precaution to ensure that the fundamental rights of individuals are not trampled upon by popular enthusiasm. These rights have been enshrined in the legislation, that is the constitutions, enjoy superiority over local custom, freedom of association and religion are all constitutional rights which ought to be respected”. See also the case of Agbai v.

Okogbue (1991) 1 NWLR (Pt. 204) 391. The above authorities, it is evident that the movement of the youths to the house of the deceased in the manner in which it was carried out, was unconstitutional and was in the … a breach of the fundamental right of freedom of association of the deceased as stated by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is the law that where more than one person is accused of joint commission of crime as in the instant case, it is enough to prove that they all participated in the crime.

What each did in furtherance of the commission of the crime is immaterial. The fact of the common intention manifesting in the execution of the common object is enough to render the accused persons guilty of the offence. The Supreme Court in NWANKWOALA V. STATE (2006) 14 NWLR (pt. 1000) … at page 667 Ratio 3 – where on proof of common intention to commit crime, the Court intoned as follows: “where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime.

What each did in furtherance to the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. ” The Supreme Court in the same case at page 667 ratio 4, on joint liability for common action to commit crime the Supreme Court intoned as follows: “Where common intention is established, a fatal blow or gunshot though given by any of the parties is deemed in the eyes of the law to have been given by all those present and participating.

The person who actually delivered the fatal blow is, in that case, no more than the hand by which others also struck.” Consequently, the firm view of this Court that based on the pieces of evidence of PW3, PW4, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker.

The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple witness were on the lateral part of the deceased which are used for defence. The view of this Court is that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiangwu alone while the other accused persons stood.

Even if all the accused persons stood akimbo while Ejike Obiangwu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiangwu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra). The further view of this Court is that even if it was only Ejike Obiangwu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v.

State (supra), Ejike Obiangwu would only be the … which the other accused persons struck. The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise”.

The trial Court convicted the respondent and his co-accuseds for the murder of Ali Agha and sentenced them to death by hanging.

Dissatisfied with this judgment, the respondent herein commenced appeal No. CA/E/131C/2018 to the Court of Appeal at Enugu by filing a notice of appeal on 21-11-2018 against the said judgment. On 1-8-2019, the Court of Appeal delivered its judgment.

It concurred with the finding of the trial Court that the evidence adduced by the prosecution proved that the deceased, Alli Agha was murdered and then proceeded to decide inter alia that- “The appellant raised the defence of alibi at the earliest opportunity when he stated that he did not go with the other youths and task force members to compel other people to attend the meeting in his extra-judicial statement, see page 66 of the Records. The appellant subsequently stated that he was at the village square with the chairman where they waited for the others to join the meeting.

This is further corroborated by the fact that none of the other Accused persons mentioned the appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial statements; neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the Prosecuting placing the appellant at the scene of the crime. The defence of alibi, where raised presupposes that the Accused person was somewhere else other than the crime scene at the time crime was committed.

Appellant furnished the respondent with the information of about which left to the respondent to duly investigate it is the responsibility of the respondent to investigate, this rebut it or place the appellant at the scene of the crime which had to do. The police must investigate the defence of alibi at the … opportunity. That was not done in the instant case and the prosecution did not offer any explanation for the lapse. That was also a serious blunder on the part of the prosecution. See Ani v. State (2009) 16 NWLR (Pt. 1168) 443 S.C.

The onus is not on the Accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi. I am bound by this decision because the testimony of the PW5 was that “all these events happened in the presence of the youths president Augustine Ogbonnaya Egwu and his deputy, Inya Agu, Nkaa Egwu and others…” This to my mind does not elicit the appellant’s participation in the alleged crime; it only shows that he was present at the scene of the crime and nothing more.

The evidence of PW5 is not credible as it is wrought with inconsistencies; his extra-judicial statement contradicts his testimony in Court. The PW5 explicitly stated on page 12 of the Supplementary Record that; “As at the time I made my statement to the police, all about the incident was not fresh in my memory because as a result of the head injury that was inflicted on me, I had a mental problem… Before I signed my statement which was recorded for me by a policeman called Ojukwu because of the mental problem I had, it was not read to me.

I stated to the police the name of Igwe Oko and Inspector Egwu Oku as those that encouraged the youths by buying them drinks from where they moved to go and kill my brother. The police made a mistake by including their names as part of those that killed my brother.” Going by the mental state of PW5, it is risky to rely on his evidence and testimony as it is obviously unreliable.

The respondent shot itself on the foot by presenting the evidence and testimony of PW5 instead of that of a vital witness as Uche AIi who had an encounter with Ejike Obiangwu (the one who allegedly dealt the blow that killed the deceased).

Uche Ali had narrated in his extra-judicial statement on page 20 of the Records that when he heard there was a fight, he ran to the scene and found the deceased in a pool of his own blood where he was informed that it was Ejike Obiangwu that did it so he ran in the direction that he was told Ejike Obiangwu had followed and found Ejike Obiangwu still armed with a cutlass soaked with blood. The said Uche Ali received a machete cut too when he made enquiries as to why Ejike Obiangwu killed his brother.

It is curious that the Respondent did not call such vital witness to testify in Court which raises the presumption in Section 167(d) of the Evidence Act, 2011 that his evidence would have been detrimental to the case of the prosecution.

The learned trial Court on page 44 of the Supplementary Records stated thus; “It is in view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D that the earliest opportunity referred to him as one of the masterminds of the killing of the deceased.” In his extra-judicial statement, (Exhibit D), PW3 stated that: “The people that killed my brother are (1) Ejike Obiangwu (2) Isu Ogbonnaya (3) Nka Egwu.

The Youth President Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo” This does not place the Appellant at the scene of the crime; rather it raises the allegation of a conspiracy. The concept of conspiracy as seen in MBANG V. STATE (SUPRA) presupposes that two or more persons came together to form the common intention to commit an offence. This means that for a charge of conspiracy to succeed, the prosecution has to show the meeting of the minds of the Accused persons and an agreement between them to commit an offence.

PW5 on page 18 of the Records in his extra-judicial statement insinuated that on the 16thof September, 2016, there was a meeting or regrouping of the youths at the instance of Inspector Oko Egwu PW5 further stated that:- “The reason for the meeting that was called for that led to the killing of my elder brother was to discuss on the way for the youth to function again whether you agree or no” The above statement does not connote any intention to harm or even kill anybody. It does not reveal any conspiracy to commit an offence neither does it reveal the names of the participants of the meeting.

The PW5 did not mention that he was present at the meeting which could be reasonably inferred that the information he has on the said meeting of 16/09/16 is hearsay which is inadmissible. See OJO V GHARORO (2006) 10 NWLR (Pt. 987) 173 S.C OJUKWU V YARADUA (2009) 12 NWLR (Pt. 1154) 50 S.C and AROGUNDADE V STATE (2009) 6 NWLR (Pt. 1136) 165 S.C. Furthermore, PW5 recanted this statement (Exhibit B) during his testimony in Court when he stated that the police made a mistake by including the names of Inspector Egwu and Igwe Oko.

Therefore, there is no indication or evidence that any meeting took place before the date of the incident, and the meeting that was scheduled to take place never took place because of the incident. Where then is the evidence of conspiracy? None of the witness actually identified or specifically pin point what the Appellant did to kill the deceased nor did they state in clear terms the role the Appellant played in the killing of the deceased, if any.

PW3 in his statement to the police which was given at the earliest opportunity did not mention the extent of the appellant’s involvement in the killing of the deceased, he only stated that the chairman of the youths and the appellant who was the vice chairman masterminded the killing of the deceased without adducing further evidence as to the alleged conspiracy. The witness is not allowed to just make a blanket statement without providing specific details to this alleged plot to kill the deceased.

The statement of PW3 in this regard is a mere statement and not a statement of fact as evidence was not adduced to prove same and it is therefore not sufficient to implicate the appellant. The testimony given at the earliest opportunity is the best evidence, when the evidence and events are still fresh in the mind of the witness and not when the witness has had ample time and opportunity to implicate others. It is a long established principle of law that to be held credible and acted upon, the name of a suspect must be mentioned at the very first opportunity.

During the cross-examination, PW3 stated that he does not know whether there was a meeting of the youths. See page 187 of the Record(s) If this is the case, how then did PW3 come to the conclusion that the appellant masterminded the killing of the deceased? There is no evidence to that effect. DW1 and DW2 as elders in the community gave evidence to the effect that the elders of the community had granted permission to the youths of the community to hold the meeting slated for the 18/09/16 to discuss the way forward on the completion of lock-up stall initiated by the youths.

This evidence was not contradicted, rebutted nor refuted. Therefore, the purpose of the meeting slated for 18/09/16 was slated by DW1 and DW2 and not to conspire to kill the deceased. The Respondent failed to prove that, it was the act of the appellant that caused the death of the deceased. The only ingredient of the offence of murder that was established by the respondent ease the first ingredient which is that the deceased had died. Since the second ingredient which relates to cause of death was not established, the third ingredient and conspiracy theory goes to no issue.

Having a corpse as proof of death is not sufficient evidence to hang another man for the death of the deceased. The intention to kill as in the motive and the actual act of killing or ensuring the act is done, as in a conspiracy must be established beyond reasonable doubt. The Prosecution failed to prove the 2nd & 3rd ingredients of the offence of murder beyond reasonable doubt. The absence of a clear intention and common intention in the circumstance of this case compels one to allow the appellant the benefit of the doubt. This appeal is allowed.

The decision of the learned trial Court is hereby quashed. The appellant is discharged and acquitted and shall be released from custody immediately”.

It is against the above judgment of the Court of Appeal that the appellant herein filed a notice of appeal on 6-8-2019 commencing this appeal No. SC. 1146c/2019. The notice of appeal contains three grounds for the appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised two issues for determination as follows- I. “Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased”. (Ground 1) II. “Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Ground 2 and 3).”

I must start the consideration of the two issues raised for determination by the parties herein in their respective briefs by observing that the judgment of the Court of Appeal exposes that its review of the factual basis of the judgment of the trial Court did not follow the prescription in Section 135 of the Evidence Act thusly- (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of providing reasonable doubt is shifted onto the defendant.

By virtue of this provision, the Court of Appeal was bound to find out if the evidence of the prosecution on its own established a case against the respondent beyond reasonable doubt and if it finds that it did, then proceed to find out if the evidence of the defence proved reasonable doubt in the case established by the evidence of the prosecution. The judgment must prima facie reflect this approach in dealing with the evidential basis of the decision. The judgment of the Court of Appeal shows that the Court did not direct itself on the appropriate approach to adopt in its appellate review.

It went straight to picking out what it adjudged as faults in the evidential basis of isolated parts of the judgment of the trial Court. The judgment of the trial Court was based on findings of facts that were largely founded on the credibility of witness testimonies and the trial Court’s belief of the said witness. Therefore, an appellate review of the evidential basis of such findings of fact must be limited to finding out if the findings of facts were perverse in the sense that they were not supported by any evidence at all, or are contrary to the logic of the evidence or are unreasonable.

It is obvious from the terms of the judgment of the Court of Appeal that its decision that the prosecution failed to prove the case against the respondent beyond reasonable doubt is the result of its understanding of the evidence before it and the inferences and conclusions it drew from the said evidence and not the consideration of the validity of the findings of facts by the trial Court.

The law is settled by an unending line of judicial decisions that an appellate Court cannot interfere with the findings of facts by a trial Court or its belief of witnesses that have not been shown to be perverse because it holds a different view of the evidence. The appellate Court cannot substitute its own views for those of the trial Court, especially where the issue turns on the credibility of witnesses. Once, as in the present case, there is sufficient evidence on record from which the trial Court made its findings of facts, the appellate Court cannot interfere.

This is because the reception and evaluation of evidence are primarily the functions of the trial Court. See for example Efe V The State (1976)11 SC 75, Okonofua V The State (1981) 6-7 SC 1 @ 14, Bamgboye V University of Ilorin (1999) 6SC (Pt.ii) 72 and Fasikun V Oluronke (1999) 1 SC 16. In the light of my foregoing holding, this appeal succeeds without the need to further into the issues raised and argued in the briefs herein. Be this as it is, let me still consider them for whatever such exercise is worth.

Learned Counsel for the appellant in his brief has argued extensively that the said inferences and conclusions by the Court of Appeal are not supported by the evidence. Learned Counsel for the respondent in his brief argued in support of the said inferences drawn by the Court of Appeal from the evidence before it.

Let me now consider the merits of these arguments. Let me start with the finding of the Court of Appeal that:- “None of the other Accused persons mentioned the Appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial Statements, neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the prosecution placing the appellant at the scene of the crime.”

​This finding by the Court of Appeal is contrary to the evidence. PW5 in Exhibit B, his extra-Judicial Statement made at the police station during investigation before trial, stated that the respondent was present amongst the youths at the scene of the crime when the deceased, his elder brother was attacked and killed by the youths and that Ejike Obiangwu inflicted the machete cuts that killed the deceased and Chukwu BenbeIla inflicted the machete cut on PW5’s head.

The exact portion of the exhibit B that contains his statement reads thusly – “The deceased Ali Agha ‘m’ is my immediate elder brother.

It was at about 8am of 18-9-2016, I was coming out from my father’s compound when I saw my younger brother Agha Pius crying, I asked him what the problem was that made him to be crying and he replied that he was flogged by the youths of our village by names (1) Umeh Agwu ‘m’ (2) Chukwu Benbella as I was still standing with my younger brother, the youth made up of the following people came; Umeh Agwu ‘m’, Chukwu Benbella Ogbonna Egwu ‘m’, Aka Esa, ‘m’, Ejike Obiangwu ‘m’, Eko Chukwu ‘m’, Moses Onyia ‘m’, Sunday Ogbonaya Oko Aka Dede ‘m’, Oko Akpu ‘m’ Irem Chukwu ‘m’, Inspector Egwu Oko ‘m’, Igwe Oko ‘m’ and others whose names I cannot remember but if I see them, I will recognize them.

There came from same village with me. They were all armed with cutlasses and sticks. It was when they entered inside my father’s compound that the deceased, my elder brother, Ali Agha warned them that they should stop beating his younger brother again, at that point, Sunday Ogbonnaya, Oko Chukwu, Aka Dede and that my brother Ali Agha has insulted the youths, that he should either lied down to be given twenty strokes of cane or he will go to the village play ground to face the punishment but my brother refused and that was when they started cutting him with cutlass all over his body.

The name of the person that actually cut him at his face and back that led to his death is one Ejike Obiangwu ‘m’. The truth is that the people I saw that killed my elder brother are (1) Ejike Obiangwu and Chukwu Benbella ‘m’. It was even Chukwu Benbella that gave me a machete cut on my head. All this events happened in the presence of the youth president Augustine Ogbonannya Egwu and his deputy Inya Agu, Nkaaa Egwu and others. This is my statement.”

​The PW5 testified in open Court in examination in chief thusly: “I know one Ali Agha. He is my elder brother. He is dead now and in the mortuary. I know how he died. On 18/9/2016 in the morning hours which was a Sunday that people go to church. Then as I was coming out of my father’s compound, I saw my younger brother one Pius Okpara Agha, that is the PW3 as he was crying. I asked him why he was crying and he told me that these Accused persons in the dock and some who are on the run trooped into his shop and started beating him in his said shop.

As we were still talking my elder brother late came out of the house and also asked him why he was crying and he started narrating the incident to him. As we were still asking him, I heard a noise and that noise was from a great crowd who were singing war song which does not tolerate the presence of women. In a short while I saw this crowd of people coming into our compound holding machetes and sticks. As they came in, the 1st Accused who is the chairman of the task force asked my brother the deceased to come to the village square.

The deceased now stated that he had warned them not to come into our compound and beat my brother. At that point the 1st Accused person, stated that he had insulted the youths. As he asked my brother to come out, that the youths would give him 20 strokes of cane and my brother refused to come out. The 1st Accused person now ordered the youths to take hold of my brother.

As the 1st Accused gave this order, that Nicholas Olughu the 5th Accused person came into our house and started dragging the deceased out of the house forcefully. (This Nicholas Olughu was wearing Jonathan Goodluck 2015 T. shirt.)” When the deceased saw that the youths were serious about him coming out, he ran away. These Accused persons and others on the run pursued him. As I saw this and reasoned that the youths could kill my brother I ran after them. As I ran a little the 7th Accused person held me while the 4th Accused person inflicted a machete cut on my head.

The scar still on my head, if the Court so desires, the Court can see it. (The Court actually observed the head of the PW5 and saw a scar reminiscent of a machete cut). As I looked up, I saw the youths had entangled my brother the deceased with their legs and he fell down. They now stated inflicting machete cuts on him as if he was a tree. When they saw that he had become weak and dead, they left him and ran away still chanting their war song to the village square. I started carrying the deceased thinking that he was still alive and I did this in conjunction with the PW3.

As we were doing that I also saw that the PW3 was also given a machete cut. I also saw that PW4 had also been inflicted with machete cut on her face. I also saw that one Uche Ali had a machete cut. I now carried my brother the deceased on a motor bike and took him to Mater Hospital where a medical Doctor examined and confirmed him dead. I left that hospital and went to the Police Division in Afikpo and lodged a complaint. The police now accompanied me to the Mater Hospital. As we were going to the hospital, the police engaged the services of a photographer.

As I saw that I was bleeding profusely, I left for Afikpo Medical Center for treatment. After, the treatment the following day I went to the police at Abakaliki and made a statement.

Under cross-examination he testified thusly – Q – In your statement of 19/9/2016, that is Exhibit B, you stated: “The people that I saw that killed my elder brother are

(1) Ejike Obiangwu and (2) Chukwu BenbeIIa ‘m’? A – The Accused persons and those still on the run are those that killed my brother, I even listed their names in a paper. Q – You told police in this Exhibit “B” also: “The name of the person that actually cut him at his face and back that led to his death in one Ejike Obiangwu? A – I was not myself when I made Exhibit B but I started that it was Ejike and others that killed my brother.

Q – Having mentioned Ejike as the person that killed your brother, you just started mentioning other persons that they were there in order to rope them A – Ejike and the Accused persons came to the scene of crime together and it was Ejike and these Accused persons and others still on the run that killed my brother; if Ejike did not kill my brother why is he running away.

PW3, Pius Okpara Agha in exhibit D, his extra-judicial statement made at the police station during investigation mentioned the respondent as one of the masterminds of the attack and killing of the deceased. The exact text of exhibit D reads thusly- “It was on the 18th of September, 2016 when I went to my shop at about 0700 hours and started work as a hair stylist.

As I finished barbing the first person and was about to barb the second person, the youth of Amorie Ozizza led by one Oko Chukwu Dede M. came to me and asked if I had no heard the bell that was ranged calling us for a meeting, I told them that I did not hear any bell, that I slept at Amaike Ozizza. They then told me that I should come out and receive twelve strokes of cane, at that point, I told them that it is too early that people are going to church, they started beating me, after which they left me and went to Ogo.

After sometime, they came back to me at my mother’s place Eziukwu Amorie Ozizza. On getting there, they saw me and late Ali Agha, one of the … the Ogo for the meeting, my brother late Ali Agha told them that we are going to church. They left us and went back.

After some time, the youths came back now singing a war song popularly sang in the village when there is problem, they armed themselves with cutlasses and sticks and started destroying the roof of the house at one Ugo Euo and after that we ran for our dear lives and they pursued us and met my brother late Ali Agha and started cutting him with cutlasses all over his body in the process, I went to rescue late Ali Agha and was cut with a cutlass by Chukwu BembeIIa and Umeh Agwu M all of the same village with me.

The people that killed my brother are (1) Ejike Obiahu M. (2) Isu Ogbonnaya ME and (3) Nka Egwu. The youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa M, he masterminded the whole thing with his vice Inya Adu Aringo. This is my statement”.

​His testimony in examination in chief in Court reads thusly- “It was on the 18th day of September, 2016 at about 7am on that Sunday, I and the deceased were living at Amikp in the house of my grandfather. On that Sunday morning, we came to Amaorie, that is, Eziukwu Amaorie. The deceased now decided to go and see our mother in that our compound to greet her. I went and opened my barbing salon as I opened the shop, the first customer came. I barbed his hair and went to the second customer.

As I was barbing the second customer, these Accused persons who are youths of Amaorie and others still on the run came and surrounded me and said: are you hearing the traditional gong being sounded? I now said that I did not hear it because I live at Amikpo. They told me to come out that they would administer to me twelve strokes of the cane. I told them that today is Sunday and that after barbing the second person that I will start going to church. As I was still telling them that, they all started flogging me, all over my body with sticks.

After flogging me, they now started going to the village square. I now closed my barbing salon and started going to my mother’s house because I was no longer myself. As I now was in my mother’s house, the deceased, myself and my mother were discussing in her house. As we were there discussing, all these Accused persons and others decided to come to my mother’s house and asked us what we were still doing there. The deceased now told them that what are you people doing here? That today is Sunday and that we were preparing to go to Church. They now went back to the village square.

As they were going, I told the deceased that theses Accused persons and others had been to my barbing salon and beat me up. As we were still in my mother’s house, these Accused persons and others still on the run started advancing towards my mother’s house chanting war songs such that a female who hears must take to flight. They were holding sticks, machetes and axe. As they got to my mother’s house, they commanded the deceased to come out from the house for them to give twenty strokes of the cane for neglecting them.

The deceased said that he will not come and that he was even a Counselor in Oziza and how come they have come to intimidate him. At this point they now rushed in to the said house to grab him and the deceased took to flight and I followed him in that flight. As both the deceased and I ran out of the house we ran toward different directions, with the deceased running towards where the elders of Amaorie perform the traditional rite while I hid myself. As I was in that hiding place, I started hearing the shouting of the deceased.

As a result of the shouting emanating from the deceased, because he was my elder brother I decided to come out of my hiding place to know what was happening to him. As I came out, I saw these Accused persons and others on the run inflicting machete cuts on the deceased jointly.

As I saw what the Accused persons were doing to the deceased, because the deceased was my elder brother, I could not bear what was happening to him, I braced up myself and rushed towards him, in a bid to rescue him from theses Accused persons and others still on the run, as I made this attempt, the 4th Accused person inflicted a machete cut on my arm. (The Court took a look at the said left arm and saw a scar that is reminiscent of a machete cut).

As I still attempted the rescue mission of the deceased one of the youths who was with the Accused persons and who is still on the run inflicted another machete cut on my hand, close to the wrist. They now jointly violently shoved me aside as a result of which I crash landed to the ground with my mouth and which inflicted injury on my lips which caused same to be stitched. Before I could get up, they had completely killed the deceased. I then stated shouting.

As I was shouting another of my elder brother called Alum Agha Geoffrey started running towards where I was with injury on his head which the youths had also inflicted on him. The youths also inflicted a head injury on one Uche Ali. I now told these people whom I mentioned above who also had injuries on them, but whose injuries were lighter than that of the deceased and one Ugochukwu Evo who had also gotten to the scene to assist me in carrying the deceased so that we could take him to where he could get medical attention.

They assisted me and we placed the deceased on motorcycle that took him to the Mater Misericordiae Hospital with the deceased foot daggling on the road. As we got to the said Hospital people scampered for safety and I started pleading with the people I saw around to please call for any medical doctor, the medical doctor examined the deceased and confirmed him dead. I then moved from the said Hospital to the Afikpo Divisional Police Headquarters and reported the incident.

They now followed me and also invited a photographer who accompanied them and we now got to the said hospital and the policemen then assisted in depositing the body of the deceased in the mortuary after taking his photographs. The police after depositing the body of the deceased in the mortuary, asked me to follow them to their station. As we got to the said police Division, the police men now called all other police stations within including the Police Stations at Unwana and Akpoha and Area Command Afikpo.

Policemen from the above mentioned stations gathered and told me to take them to Amaorie Oziza. As we got to the market square at Amaorie Oziza, these Accused persons and others still on the run used tyres to make burn fire on the roads as a result of which the said police men were compelled to park their vehicles at that market square and moved on foot to the Elu Amaorie where we all saw the Accused persons with the blood stained machete they were still holding and which they all held into air and were singing and dancing to the war song saying that nothing will happen.

They now started hauling stones on the advancing policemen as a result of which the police retreated for the safety of them and me. As we were making retreat, the police now called the Police State Command and reported the incident on account of which Police from the Ebonyi State Command Headquarters used three vehicles and came to Amaorie Oziza. Before the arrival of these police from Abakaliki, the Accused persons and others had dispersed.

Since these Accused persons and others had dispersed, the police from Abakaliki now took me along with them to Abakaliki where I now made statement to them stating what happened”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This testimony was not challenged or shaken in cross-examination, PW4, Regina Chukwu Evo, in her testimony in examination in chief, stated that “I can recall the event of 18/9/2016.

On that 18/9/2016, a Sunday in 2016, I was in my house carrying a baby when I heard the Youths of Amaorie with their sing song or war song marching towards the house of Mama Ali Agha the mother of the deceased carrying machetes, Axe and sticks and met the deceased in the house of his mother and chased him out of said house and he started running and these Accused persons obstructed his speed by using their feet to entangle his legs and he fell down and they started inflicting machete cuts on him.

Then I started begging them not to kill him that he is a human being o, then one of them called Ejike used the machete he was holding and inflicted machete cut on my face and I started bleeding profusely. I now immediately rushed to a patent medicine store where I was treated with stitches on my face. After this, as I was returning, I now saw the deceased Ali Agha as he was being conveyed to the hospital on a motor bike and I also saw Okpara and Alum who are the younger brothers of the deceased and one Uche Ali who were carrying various injuries on their bodies.

It is Ogbolsu and Ejike who are still on the run and these Accused persons that collaboratively killed the deceased. I made statement to the police in Abakaliki, Ebonyi State.”

Under cross-examination she testified that “Q- Between today and when you made your statement, when was the incident fresher in your memory? A- I have stated what I know what happened. It was these Accused persons that killed the deceased. I have stated the whole thing I know. It is these Accused persons that killed the deceased and inflicted machete cut on my face and I became unconscious and fell down. Q- You said in Exhibit E that it was Ejike Obiahu that used a cutlass and cut Ali Agha all over his body that caused his death?

A- It was not only Ejike Obiahu that inflicted machete cuts on the deceased. All the Accused persons and those still on the run inflicted machete cuts on the deceased and also inflicted machete cuts on my face. You see my face, it is stitched. Q- I am putting it to you that you have come to tell the Court lies by departing from your statement to the police? A- These people in the dock, if you want me to start mentioning their names, I will. They are the people that killed Ali Aghas I am not telling a lie.

Is it because Ejike Obiahu is not on trial that they are now alleging that it was Ejike alone that killed the deceased my brother. Q- Were you forced in the police station to mention only Ejike Obiahu? A- I never stated that it was Ejike Obiahu alone that killed the deceased. Q- Where precisely did his killing of the deceased take place? A- It was at Obu Amaorie that the Accused persons killed the deceased. Q- From your house to where the incident took place, can you give an idea as to the distance? A- The distance between my house and the Obu where the deceased was killed is about 1 pole.

Q- At the time of the happening of this incident, you told the police that you were in your house? A- I was in my house carrying a little child when the incident started. But when they chased after the deceased, I came out and started pleading with them to leave him alone and they refused. Q- You observed that day that it was the deceased who first inflicted a machete cut on Ejike Obiahu who then over-powered him and took the machete from him and then inflicted a cut or cuts on the deceased? A- It is a lie. They are now alleging as above because Ejike is not here in Court.

They are the people who killed the deceased. Q- How was the deceased related to you? A- The deceased was a member of my maternal family. Q- You are now telling the Court lies because of that relationship that you had with the deceased? A- I have not come to this Court to tell this Court lies. It is these Accused persons that killed the deceased. The deceased that they killed was not holding any wood or stick including myself that they inflicted machete cuts on my face. Q- In Amaorie Oziza, Youths had always been meeting for the good of the community before they stopped for a while?

A- I do not know. Q- That meeting that was called on 18/9/2016 was not for the killing of Ali Agha but for the purpose of the development of Amaorie Oziza? A- I do not know. But if it was for the development of the Community, why did they kill my brother on that day. Q- Between what you told the police in your statement, that is, Exhibit E and what you have told this Court; which do you want the Court to believe? A- It is these Accused persons that killed the deceased, inflicted machete cuts on the deceased’s brothers and myself.

Q- How many people were present in the house of Ali Agha’s mother’s house when the Amaorie Youths went to the house? A- There were many people there in the Ali Agha’s mother’s house. But when the Youths came with their war song, they ran away”.

It is glaring that PW3, PW4 and PW5 stated that the respondent was present at the scene of crime as part of the youths that went to the deceased house to force him to attend the youth meeting at the village square.

​The decision of the Court of Appeal that PW5’s testimony that the President of the youths and the respondent who was his deputy were present when crime was committed does not show that the respondent participated in the crime, as it only shows that he was present at the scene of crime and nothing more, is not correct in fact and in law considering the provisions of Section 8 of the Criminal Code Law and the facts that he was there as part of the joint action of the Youths task force for the unlawful purpose of forcing the deceased by flogging with cane to attend their meeting and the deceased was killed in the process.

The decision of the Court of Appeal that none of the witnesses actually identified or specifically pin point what the respondent did in killing of the deceased show that the Court did not address its mind to the law on joint responsibility for an offence committed during a joint enterprise to carry out an unlawful purpose. The basis of responsibility for the crime is participation in the joint enterprise with the common intention to carry out a purpose that is unlawful.

The specific role played in the commission of the offence that occurred in the joint enterprise is not a relevant consideration for joint responsibility by all members of the group for the crime.

The decision of the Court of Appeal that PW3’s testimony did not give specific details of how the respondent masterminded the killing of the deceased disregards the admitted facts that it was the youths association and Youths Task Force that decided that the Youth Task Force should go out and force the deceased to attend the meeting of the association holding that day at the village square and that the youths went to the house of the deceased to force him to attend the meeting and that the respondent as Vice President or Chairman of the Youths Task Force and his President was at the house of the deceased that day for that purpose.

Their leadership of the Youths Task Force and their presence at the deceased’s house when the invasion of the house and the killing of the deceased took place relieves the prosecution of any duty to prove any other overt acts of their mastermind of the attack.

It is not disputed on the evidence of both sides that when the Youth Association meeting scheduled to hold that day was about to start, it was observed that some of the youths were not present. On the direction of the President Youths Association, the Youth Task Force went out to compel the absent youths to attend the meeting. The absent youths would be flogged 20 strokes of cane for failing to attend the meeting voluntarily before they are compelled to attend the meeting.

It has never been in dispute that the youths, with the common intention to force the deceased to attend the said meeting, went out on 18-9-2016 to actually force the deceased to attend the meeting.

The question of whether they conspired to kill the deceased is irrelevant in the circumstances of this case. The Court of Appeal did not direct itself on the proper question to ask on the evidence. The proper question is whether there is evidence of a common intention of the group of youths to go and force the deceased to attend the meeting.

The case of the prosecution is not that the youths conspired to go and kill the deceased. Its case from the evidence is that they formed a common intention to go and force him to attend the meeting and that in the process of executing or carrying out that unlawful purpose as a group, the deceased was killed by the machete cuts of one or more member of the group. Those facts are not in dispute on the evidence.

The part of the judgment of the trial Court that held that the evidence of PW3, PW4 and PW5 eye witnesses of the crime sufficiently fixed the respondent at the crime scene, reads thusly- “It is view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D at the earliest opportunity referred to him as one of the masterminds of the killing of the deceased”.

In his extra-judicial statement, (Exhibit D), PW3 state that; “The people that killed my brother are (1) Ejike Obiahu (2) Isu Ogbonaya (3) Nka Egwu. The Youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo”.

The Court of Appeal reproduced the above part of the trial Court judgment in its judgment and held thusly- “This does not place the appellant at the scene of crime, rather it raises the allegation of a conspiracy”. This holding is glaringly wrong as it is not supported by the evidence. The Court of Appeal drew the wrong conclusions from the said evidence.

​The decision of the trial Court is that the evidence given by PW3, PW4 and PW5 fixed the respondent at the scene of the crime. The Court of Appeal had earlier in its judgment held that the testimony of PW5 showed that the respondent was present at the scene of crime at the time the crime was committed.

Having held that the testimony of PW5 showed the presence of the respondent at the crime scene, the Court of Appeal contradicted itself when it held that the prosecution were bound to investigate the claim of the respondent in his extra-judicial statement at the police that he remained at the village square and did not follow the Youths Task Force to go and force the deceased and other youths to attend the meeting and so was not at the place where the youths attacked and killed the deceased.

It is a recurring judicial restatement of considerable antiquity that where eye witness testimony or other evidence has fixed the accused at the crime scene when the crime was committed, and the evidence is believed by the trial Court, the fact that the police did not investigate the claim of alibi becomes irrelevant.

Whereas in this case the respondent was mentioned by three eye-witnesses, as being amongst the youths they saw attack and killed the deceased in his house, it becomes a straight issue of credibility of the witnesses and once the trial Court believes the witnesses as happened in this case, the trial Court’s reliance on such testimonies as evidence of his presence at the scene of crime cannot be faulted. Even the Court of Appeal affirmed the decision of the trial Court that the evidence of PW5 show that the respondent was present at the scene of crime. See Ezekiel Adekunle v.

The State (1989) 12 SCNJ 184 at 190, Obiode v. The State (1970) 1 All NLR 35 and Mathew Obakpolor v. The State (1991) 1 SCNJ 91.

I find it difficult to agree with the decision of the Court of Appeal that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established, but for the prosecution to disprove the alibi”.

In a situation where during trial three witnesses for the prosecution testified that the respondent was among the youths that came to the deceased’s compound, attacked him and killed him and that the respondent was present when the deceased was attacked and killed, the respondent cannot safely rely on his mere assertion that he did not follow the youths to the deceased’s house and that he remained at the village square for his defence to the testimonies of the three prosecution witnesses fixing him at the scene of crime.

As this Court held in Obakpolor V The State “It is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence”.

Apart from stating in exhibit K, his extra-judicial statement at the police station and in his testimony in open Court that he remained in the village square and did not follow the youths to go to force the deceased to attend the meeting, he did not mention the names of any person in whose company he was or that saw him at the village square at the material time.

​His statement in exhibit K reads thusly- “My name is Inya Adu M. AKA Ringo, I am a native of Agba Amorie Ozizza in Afikpo North LGA of Ebonyi State. Born into the family of late Mr Adu Egwu and late Mrs Uzo Inya. I am the last born in the family. I am married with five children. A fisher man by profession. I had my primary education and secondary education at comprehensive secondary school Ozizza but I stopped in JSS 3. I know the deceased late Ali Agha. We are from the same village. I am the vice chairman of Amorie youth association. We have task force members of the youth.

The chief task force is Sunday Oko Chukwu M. AKA DEDE. Other members of the task force are 1. Eko Chukwu M. 2. Elem Oyari M. Inya. 3. Ogbonnia Obure M. AKA Consider. 4. Anderson Agwo Ume M. 5. Ewa Olughu M, 6. Chukwu Bembella M, 7. Ejike Obiahu M. The task force members are empowered to use cane in the course of their duties. It is equally the duty of the task force members to go to the village and force members of the youth who refused to come for meeting to attend. In case they force any member to come for meeting and he refuses, they now use their cane on such person.

On the 18th of September, 2016 we the youth members of Amorie Ozizza scheduled a meeting to be held at the village square Amorie. At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come. As the task force members came back, they reported to us that some people like Evo Chukwu m, Okechukwu m, Elem Ali m, Uche Ali m, and others whose names I cannot remember refused to come for the meeting.

We then instructed them to go back and force them to come for the meeting, after some time, they came back and reported that when they got to them, they met one Ali Agha M, who told them that they should go, that they have formed their own group. After reporting that to us, we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting but I did not go with them.

The next thing I heard was that as reported by the Chief task force Sunday Oko Chukwu M, was that as they reached, Ali Agha collected machete and gave Ejike Obiahu a cut on his body which caused him harm, that was when Ejike Obiahu collected the cutlass and gave him several cuts on his body but he did not die instantly, it was when he was rushed to the hospital that he was confirmed dead. It was Ejike Obiahu that killed Ali Agha. We did not have any meeting to kill Ali Agha. As Ali Agha died, the police came and started arresting people. So I ran away to Ekok Cameroun.

It was there at Cameroun that I was called by my people to come back that running will not solve my problem. I don’t know where Ejike Obiahu is now. I don’t have his phone number. This is my statement”.

His testimony in examination in chief as DW5 in open Court reads thusly- “On 18/9/2016, what I know about this charge is that I returned home on 16/9/2016 because of the burial of the mother of Inspector Oko Egwu. So after the said burial which took place on 17/9/2016, then on 18/9/2016 in the morning hour I heard the bell of the community toll and I came to the village square which is the usual place of our meeting. As I got to the village, I observed that other youths who presumably heard the bell also were also advancing towards the village square.

At that village square all the youths that had gathered were waiting for the task force members who were in-charge of the ringing of the bell and who after the ringing of the bell would move round the village to ensure that all the youths attended the meeting. As we were still waiting at the village square for the arrival of the task force members who on their own split themselves into two groups for efficient discharge of their duties, one of these two groups of the task force members arrived the village square first.

The youth then started waiting for the arrival of the second group so that the meeting would commence. The second group of the taskforce members eventually arrived the village square and informed the youths that there were some youths who stated that they would not attend the meeting. The task force members were asked to go back and bring those youths who said they would not attend the meeting.

There was also the information from the second group of the task force to the effect that the deceased Ali Agha told them they the youths at the village square could go on with their meeting that they themselves had formed their youth association and would be holding their own meeting since Amaorie youth association is not more than one in Amaorie, the whole task force members were now asked to go back and bring those youths.

While at the village square, we did not know that there was any problem, what we saw next was the 4th Accused person coming to the village square with a machete cut on his head and blood flowing there-from. We became dumb founded because we were aware that the task force members do not use machete to accomplish their assignments. We then decided to go to the chairman of Amaorie Development Union and tell him what was happening. It was while we were at the chairman’s place that we heard that Ejike had inflicted machete cut on the deceased. We did not sing any war song.”

The assertion without more did not sufficiently raise an alibi. The statement in exhibit K did not provide particulars of facts that police should verify. His testimony in open Court suffers the same lack of particulars of facts that may cast reasonable doubt in the testimonies of PW3, PW4 and PW5 that they saw him at the scene of crime amongst the youths that attacked and killed the deceased. The belief of the testimonies of PW3, PW4 and PW5 is justified even by the content of the respondent’s statement in exhibit K and his testimony as DW5 in open Court.

​Let me consider the holding of the Court of Appeal that the prosecution failed to prove that it was the act of the respondent that caused the death of the deceased and that the prosecution failed to prove common intention and a clear intention in the circumstances of this case. This holding is clearly wrong. The Court of Appeal judgment was silent about the findings of facts by the trial Court that it is the several machete cuts inflicted on the deceased by the youths that attacked him in his house on 18-9-2016 that caused the death of the deceased.

The trial Court relied on the evidence of the witnesses of both sides and documentary exhibits Q, Q1 and Q2 (order for post mortem examination, Death Report to coroner and Report of Medical Practitioner) in making these findings of fact. The judgment of the Court of Appeal did not consider if the findings are perverse and did not impeach them.

It was silent on the medical evidence that the several machete cuts of the deceased caused his death, which evidence is contained in exhibit Q, Q1 and Q2 and the testimony of PW2, the medical officer that examined his corpse and issued exhibit Q2 and in the testimonies both prosecution and defence witnesses. It is obvious from the evidence of both sides that the death of the deceased and the fact that it was caused by the several machete cuts inflicted on him by the youths in his house is not in dispute on the evidence.

​It is not in dispute on the evidence of both the prosecution and the defence, that the Amaorie Ozizza Youths Association Task Force with common intention to go and force the deceased to attend the youth association meeting holding at the village square, proceeded to his house for that purpose and that in the process, some members of the youths Task Force inflicted machete cuts on the deceased killing him.

It is not in dispute on the evidence of both sides that when they set out to go and compel the deceased to attend their meeting, their common intention was to compel him by flogging him with canes and not to kill him, even though they were armed with axe, machete and sticks.

The respondent stated in exhibit K that it is their duty as task force members to use cane on any youth who refused to attend meeting, that on 18-9-2016, task force members reported that some youths refused to attend meeting, “that when they received report that the deceased refused to come and said he had formed his own group, “we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”.

​The trial Court believed the testimonies of PW3, PW4 and PW5 that they saw the respondent at the scene of crime when the crime was committed.

Apart from the evidence of PW3, PW4 and PW5 that they saw him amongst the youths that came back to force the deceased to attend the meeting, but who ended up attacking and killing him, his statement that he and others directed or instructed the youths to go and forcefully bring the deceased and his splinter group to their meeting, further makes him culpable and responsible for any crime committed by any member of youth groups in the process of executing the instructions of the respondent and others.

This is so by virtue of Section 9 of the Criminal Code Law of Ebonyi State which provides thusly – “When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.”

What the respondent directed them to do include to lash the deceased and other youths that had refused to attend the youth meeting 12 strokes of the cane for not attending the meeting voluntarily and forcefully drag them to the meeting. Forcefully dragging or compelling a person to the meeting is obviously a physical assault of a person for the purpose of forcing him to attend the meeting. This is clearly the crime of assault. Lashing a person 12 strokes of cane obviously inflicts grievous bodily harm on him, which is another crime.

So the respondent directed the youths to commit crimes to compel the deceased to attend the meeting he was unwilling to attend.

​It is not in dispute that the deceased resisted his being caned and being forcefully taken to the meeting and took flight from his house with the rampaging youths in hot pursuit of him. When they caught up with him, they inflicted multiple matchet cuts on him resulting in his death. In the light of these facts, it is impossible to relieve the respondent of joint responsibility for the murder of Ali Agha by the youths he sent to cane him and force him to attend the youth meeting.

It is immaterial that in committing the offence he counseled them to commit, they killed Ali Agha, clearly a probable consequences of carrying out the counsel of the respondent. The respondent who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.

The Court of Appeal did not fault the decision of the trial Court that forcing the deceased and others to attend the meeting of the youth association is unlawful and unconstitutional. The decision therefore subsists as correct and conclusive and binding.

The conviction of the respondent for the murder of the deceased, even though he did not personally inflict machete cut on the deceased, is justified by Ss. 8 and 9 of the Criminal Code Law, Cap 33, Volume 1 Laws of Ebonyi State which provides that 8. “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. 9.

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.” This Court has in a long line of cases applied these provisions. InMbang v. The State (2009) LPELR 1852 (SC), this Court held thusly- ” …In Ogbali & Anor v. State (1983) N.S.C.S. 156 at pp. 157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions.

Bello J.S.C (as then was) said: “The only issue worthy of consideration on both appeals, in my view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

“I may point out straightaway that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section.

Firstly, there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; and thirdly that the death of that person was a probable consequence of the prosecution of the unlawful purpose.” In Nwankwoala & Anor v. The State (2006) LPELR-2112 (SC), this Court held thusly- “Where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime.

What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Patrick Ikemson & 7 Ors. V. The State (1989) 3 NWLR (Pt. 110) 455 at 466. Where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating.

The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others also struck. See Ofor v. Queen (1955) 15 WACA 4 at 5; Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 518. And in practical terms, common intention is incapable of positive proof. Its existence can only be inferred from the circumstances disclosed.” ​Where the common intention to prosecute an unlawful purpose is not expressed by the group, it can be inferred from their joint execution of the unlawful purpose.

In our present case, the task force of the Youth Association clearly stated their common intention to collectively go and physically compel the deceased and others to attend the community youth meeting. The crime committed in the joint execution of an unlawful purpose need not be the common purpose that was commonly intended by the joint action.

But if the crime so committed in the joint execution of the unlawful purpose is a probable consequence of the execution of the unlawful purpose, every participant in the joint execution of the unlawful purpose commits the crime irrespective of their specific role in the joint execution of the unlawful purpose.

​It is not in dispute on the evidence of the prosecution and the defence that the Youths Task Force agreed to go out and physically compel the deceased. The respondent and others proceeded in their joint enterprise armed with sticks and machete and invaded the home of the deceased, chanting war songs. None of the members of the youth task force was merely present in the deceased’s house on the fateful day. They were not there by accident or as persons innocently passing by or as persons living there or as friendly visitors.

So their presence there could not be rightly described as a mere presence. They came from the village play ground with the common intention to come to the house of Ali Agha and compel him to attend their meeting.

Instead of going there in a peaceful manner, they invaded the house armed with sticks and machetes, chanting war songs. The trial Court found as a fact that the deceased was killed by the members of the task force youths that invaded his home to force him to attend their meeting and that he died on the spot during that invasion due to the several machetes cuts inflicted on him by the youths task force members,

​The trial Court found as a fact that PW3, PW4, PW5 and PW6 who were eyewitnesses of the killing of the deceased by the members of the Youths Task Force that invaded his home gave direct evidence of the death of the deceased during the invasion. PW3, PW4 and PW5 mentioned some of the persons they saw inflict machete cuts on the deceased.

Exhibit Q2, the report of post mortem examination of the deceased’s corpse state that there were 8 multiple cuts on the body corroborating the testimony of PW2, the medical officer that examined the corpse, that- “from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life. From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.

The trial Court found as a fact that – “Page 49: Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that death of the deceased is the unusual consequence of that enterprise. It is therefore clarion and crystal clear that the 1st to the 9th accused person are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased- Ali Agha to his creator”.

​In our present case the common intention to carry out that joint enterprise is established by the evidence of their decision to go and compel the other youths including the deceased to attend the meeting and the evidence of their participation in the joint invasion of the deceased’s residence to force him to attend their meeting. By their joint invasion of the home of the deceased to force him to attend their meeting, each of them became responsible for anything done by any member of the group to force the deceased to go and attend their meeting. In Eyorokoromo & Anor vs.

The State (1983) LPELR-1188 (SC), Ubierho vs. The State (2005) 2 SC (Pt. 1) 18, Alarape vs. The State (2001) 2 SC 164, Mohammed vs. The State (1980) 3-4 SC 56 and several other cases this Court has repeatedly held that in a concerted attack to prosecute an unlawful purpose, it is not the law to look for the person who struck the lethal blow.

Everyone who partakes in the attack is equally guilty of the crime committed during prosecution of the unlawful purpose. ​The question whether each individual participant in the joint invasion had the intention that Ali Agha should be killed or injured during the invasion or process of compelling him to attend the meeting is irrelevant in determining the criminal responsibility of each member of the group for the killing or injury of Ali Agha by their acts to force him to attend their meeting.

The prosecution has no burden to prove that each member of the group intended that Ali Agha should be killed or injured by their actions to force him to attend their meeting. The principle underlying criminal responsibility in cases where a person is accused or alleged to have on his own, singly committed an offence cannot apply to cases where a person is accused of committing a crime that occurred during the joint execution of an unlawful purpose that he and other persons had formed a common intention to prosecute.

​What the prosecution must prove to establish the guilt of each member of the group for the killing of Ali Agha, is that the killing was a probable consequence of what the group did to force the deceased to attend their meeting.

Once the evidence establishes that the killing of Ali Agha was a probable result of their actions to force him to attend their meeting, each of them is responsible for killing him, irrespective of who took what specific action amongst them and the individual intention of each of them concerning what should or can result from the actions of each member of the group.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The trial Court in its judgment found thusly- “Consequently the firm view of this Court is that based on the pieces of evidence of PW3, PW, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker. The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple injuries were on the lateral part of the deceased which are used for defence.

The view of this Court that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiahu alone while the other accused persons stood. Even if all the accused persons stood akimbo while Ejike Obiahu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiahu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra).

The further view of this Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v. State (supra), Ejike Obiahu would only be the … which the other accused persons struck. The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise.

Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that the death of the deceased is the unusual consequence of that enterprise. It is therefore clarion and crystal clear that the 1st to the 9th accused persons are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased - Ali Agha to his creator.

Consequently, the finding of this Court that the death of the deceased was caused by the acts of the accused persons. Attention of this Court now swivels to the third ingredient of murder which the prosecution must prove in order to shout eureka. That is, that the act or omission of the accused persons which caused the death of the deceased was intentional with knowledge of death or grievous bodily harm was the probable consequence.

This Court has painstakingly enunciated the evidence of prosecution witnesses to the various accompaniment of exhibits which clearly disclose that multiple injuries were melted on the deceased by the accused persons with the aid of machetes. The only rationale that can stem from the acts of all the accused persons on the uncontradicted documentary and oral evidence before the Court is that the acts of the accused persons which caused death of the deceased were intentional with knowledge that death or grievous bodily harm was its natural or probable consequence.”

​Considering the nature of the things done by the invaders during the execution of their unlawful purpose of forcing the deceased to attend their meeting, their killing him was clearly a probable consequence of their execution of the unlawful purpose. They had set out for the execution of that purpose armed with sticks, machetes and axe. They invaded the deceased’s home, commanded him to come out for them to lash him twenty strokes of the cane for refusing to honour their summons for the meeting. When the deceased refused to come out, they rushed into the house to hold him.

The deceased escaped from the house and took flight. They followed him and inflicted several machete cuts on him. PW3, PW4, PW5 and one Uche Alli who tried to rescue the deceased from the youths’ task force members was also inflicted machete cuts.

After inflicting multiple machete cuts on the deceased till he became weak and lifeless, the members of the youth task force left, continued chanting war songs and proceeded to the village square. PW3, PW5 and one Ugochukwu Evo arranged and immediately carried the deceased on a motorcycle to the hospital. The medical doctor immediately examined the deceased and confirmed him dead.

Exhibit Q2, the medical report of the examination of the deceased states that the corpse was received at the mortuary on 18-9-2016 at 1400 hrs (2pm), that the deceased died on 18-9-2016, that the corpse was examined on 25-11-2016 at 11.30 hrs (11.30am) and that the cause of his death was multiple machete cuts and hemorrhagic shock. PW2 the medical doctor that conducted the examination testified that- “from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life.

From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.”

The fact that the task force members invaded the deceased’s home armed with sticks, machetes and axe show that they invaded the house with the intention to inflict violence of any degree for the purpose of overcoming his resistance and force him to attend their meeting. It is clear from the foregoing facts that killing the deceased was a probable consequence of all that they did for the purpose of forcing the deceased to attend their meeting. As this Court held in State v.

Oladimeji (2003) 7 SC 108 “if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary, for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder”.

Since the killing of Ali Agha is a probable consequence of what the respondent and other members of the youth task force did in the joint prosecution of their unlawful purpose, each member of that youth task force is guilty of the murder of Ali Agha, irrespective of which of them inflicted the actual machete cut that killed him.

The law is settled that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is guilty of committing the offence. See Ubierho v. The State (2005) 2 SC (Pt. 1) 18 and Nwankwoala & Anor v. The State (supra).

In the light of the foregoing, the lone issue framed herein for the determination of this appeal is resolved in favour of the appellant.

​This appeal has merit. It is hereby allowed. The judgment of the Court of Appeal sitting in Enugu in Appeal No.

CA/E/131C/2018 delivered on 1-8-2019 is hereby set aside. The judgment of the High Court of Ebonyi State at Afikpo, in Charge No. HAF/24C/2017 delivered on 15-10-2018, convicting the respondent for the murder of Ali Agha and sentencing the respondent to death by hanging by the neck is hereby restored and shall take effect accordingly.

MARY UKAEGO PETER-ODILI, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Enugu Division or lower Court or Court below, Coram: Misitura Omodere Bolaji-Yusuf, Joseph Olubunmi Kayode Oyewole JJCA and Monica B. Dongban-Mensen, JCA (as he then was), delivered on 1st August, 2019 which set aside the judgment, conviction and sentence of the High Court of Ebonyi State, sitting at Afikpo on a count of murder contrary to Section 319 (1) of the Criminal Code Laws of Eboyi State of Nigeria, 2009.

The details leading to this appeal are well set out in the lead judgment delivered by my learned brother, Akomaye Agim, JSC, the reasonings thereof, I agree with.

​At the hearing on 23/9/2021, learned counsel for the appellant, A.O. Odum Esq adopted the brief of argument filed on 21/11/2019 wherein he distilled two issues for determination, viz:- 1. Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased. 2. Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Grounds 2 and 3).

Learned counsel for the respondent, Roy O. Umahi Nwaeze Esq adopted the brief of argument filed on 18/12/2019 and adopted the issues crafted by the appellant. I shall make use of Issue 2 of the questions raised as it is sufficient in the determination of this appeal.

ISSUE 2 Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. Advancing the arguments in favour of the position of the appellant, learned counsel contended that the three ingredients of the offence of murder were established beyond reasonable doubt at the trial Court and the lower Court was wrong to hold otherwise.

​That the defence of alibi put forward by the respondent was not sustainable as the evidence proffered by the prosecution placed him at the scene of crime and at all times material. He cited Agbiti v Nigerian Navy (2011) LPELR-2944 (SC) P.53; Hambe & Anor v. Hueze & Ors (2001) 4 NWLR (pt.703) 372 etc.

That in the proof of conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprises need not be given as all that is necessary to be shown is a meeting of minds. He relied on Oladejo V State (2014) LPELR-22946 (SC) etc.

Learned counsel for the respondent contended by stating that the appellant’s case was full of inconsistencies and material contradictions and was not proved beyond all reasonable doubt and the respondent’s plea of alibi not investigated. He cited Adamu v State (2019) LPELR-46902 (SC), Anekwe v State (2014) 10 NWLR (pt. 1415) 353 at 379; Nnunukwe v The State (2004) All FWLR 201 etc.

That the respondent was entitled to the acquittal as the prosecution failed to prove some of the essential elements or ingredients of the charge. He cited Onuchukwu v The State (1998) 1 SCNJ 36 at 49 etc.

​It is now well settled in law that the burden of proof is on the prosecution who must prove its case beyond reasonable doubt.

This concept is embodied in the Evidence Act, 2011 as amended and it would help to quote it thus:- “135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to 139 of this Act, on a person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant”.

It is trite that in order to discharge the burden of proof in a criminal case the prosecution must prove the ingredients of the offence with which the accused is charged beyond reasonable doubt. This well-established principle of law was reiterated by this apex Court in NWATURUOCHA V. STATE (2011) LPELR- 8119(SC) where it was held as follows:- “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge.

While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify at the proceedings- Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged, Amadi v. The State (1993) 8 NWLR pt. 314 pg. 644 at pg. 668; Alor v The State (1997) 4 NWLR pt. 501 pg. 511.”

I agree with learned counsel for the appellant that the law is also firmly established that a conviction for murder would be sustained if the prosecution is able to prove the ingredients of murder beyond reasonable doubt. This principle of law was reiterated by this Court in AKINLOLU V. STATE (2015) LPELR-25986. To establish the offence of murder, the prosecution must prove beyond reasonable doubt that the deceased died.

They must also prove the cause of death which cause must be traceable to an act or omission of the accused person and they must prove that the said act or omission of the accused person was intentional knowing that death or grievous bodily harm was a consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270. See also Kada v State (1991) 22 NSCC (pt. ii) p. 592; State v. Danjummai(1996) 8 NWLR (pt. 469) p.660.”

From the record, there is no dispute the lower Court held that the first ingredient of the offence of murder has been established without any doubt, as the fact that the deceased had died is not in contention from the identification of the body of the deceased by his brother, the pictures taken and the medical examination carried out by the medical doctor.

In respect of the other ingredients of the offence of murder, the Court below found that the defence of alibi availed the respondent because the evidence of the prosecution witnesses did not place the respondent at the scene of crime and the alibi raised at the earliest opportunity. The Court below stated that the failure to investigate the alibi was fatal to the prosecution’s case.

​The lower Court in coming to the above conclusion ignored the fact that the Respondent never set up alibi as defence to the charge in the true sense of the defence, either in his extra-judicial statement or in his viva voce evidence at the trial Court. It was his counsel who glossed over the issue in his final written address for the accused persons, he was particular in making the case for the 5th, 6th and 9th accused person. He never made alibi an issue in defence of the Respondent.

Furthermore, considering the time and space the lower Court expended in dealing with the issue of alibi, one would think that it was an issue for the determination raised by the Respondent at the lower Court. But a cursory look at the briefs and submissions of Respondent’s counsel at the lower Court would reveal that it was never raised nor was it addressed. The only conclusion therefore is that the lower Court raised the issue suo motu.

This Court has had the opportunity of considering the issue of whether an appellate Court can suo motu raise issues at the judgment stage which the parties did not raise without stepping into the arena of conflict in a plethora of cases and I shall refer to a few. In AGBITI v. NIGERIAN NAVY (2011) LPELR-2944(SC) per Fabiyi, J.S.C P.53, the Court held:- “The Court of Appeal while its judgment, suo motu, struck out grounds of appeal and related issues touching on jurisdiction without calling on parties to address it.

An appellate Court cannot suo motu raise issues at the judgment stage which the parties did not raise without the perilous risk of stepping into the arena of conflict. That was what the Court below wrongly did. Such cannot be condoned See Hambe v. Hueze (2001) 2 SC 26 at 39; (2001) 4 NWLR (pt. 703) 372 at 388; Akintola v. Solano (1986) 2 NWLR (pt. 24) 598; Victino Fixed Odds Ltd. V Joseph Ojo & Ors (2010) SC (Pt. 1).” Also inHAMBE & ANOR V. HUEZE & ORS (2001) 4 NWLR (PT. 703) P. 372, Per OGUNDARE, J.S.S (P.12, paras.

A-F) the Court held: “…It was the Court itself that raised those points in its judgment and decided the fate of the appeal on them and this without inviting the parties to address it on the point I think this is wrong. This Court has consistently frowned on this practices, In Ogiamien v. Ogiamien (1967) NSCC 190, 192, (1967) NMLR 245, 248; Sir Ademola CJN observed: “We note also that these objections were never raised by counsel and that they were formulated by the learned Judge himself in his judgment.

No opportunity was given to counsel to argue the points, and throughout the various appeals on the case (Exhibit D), the Constitution of the Court was never challenged. This Court has pointed out on several occasions that it is wrong for a Judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.” Again Onwunalu & Ors v.

Osademe (1971) ANLR 15 17, Coker JSC delivering the judgment of this Court observed: “As a general rule this Court has always regarded with disfavor the practice of a Court giving a decision on a point not argued before it. ”

From the record, it is seen clearly that there was positive evidence from PW3 which fixed the respondent at the scene of crime as one of the masterminds of the homicide. The respondent’s assertion that he was with the Chairman (6th accused) at the village square at the material time is not borne out of the evidence.

​The finding by the lower Court at page 495 of the Records that the Respondent furnished the Appellant with the information of his whereabouts which was left to the Respondents to duly investigate is perverse. This is so because the above statement and oral testimony are bereft of any precision with respect to where he was, persons that he was with and what he was doing at the material time. There was therefore no lapse for the Appellant to explain. See ONUCHUKWU V. STATE (1998) 4 NWLR (PT. 547) 32. In IKUMONIHAN v.

STATE (2018) LPELR-44362(SC) per AUGIE J.S.C (Pp. 35-40), the Supreme Court stated that: “…to be worthy of investigation, the defence of alibi must be precise and specific in terms of the place that the Accused was and person(s) that he was with, and possibly what he was doing at the material time – see Ochemaje v. State (2008) 15 NWLR (Pt 1109) 57, wherein Tobi JSC said: it is not the law that the police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the police.

The Accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law… Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witness or under cross-examination of the accused or his witness. A trial Judge will not take seriously a defence of alibi which is porous and cosmetic, (underlining for emphasis) It was further held that in ADEBIYI V.

STATE (2016) 8 NWLR (PT. 1515) 456, this Court held that the defence of alibi is not readily conceded to an Accused Person because, when properly established, it has the far-reaching effect of exculpating him from complete criminal responsibility. Nweze JSC further stated as follows: “To be entitled to this beneficent effect; such an Accused must raise it at the earliest opportunity, which would, preferably, be in his extra-judicial statement.

This is to offer the Police an opportunity either to confirm or confute its availability to the Accused Person – Above all, the said defence must be unequivocal as to the particulars of the Accused Person’s whereabouts and those present with him, It is only where such an Accused Person raised the defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it … and to disprove same …” To be clear, there are instances where a failure to investigate an alibi may cast doubt on the reliability of the case for the prosecution, but in a case as this, where the Respondent was identified by three eye witnesses, there was a straight issue of credibility and I posit that the lower Court’s findings of facts were unreasonable or cannot be supported having regard to the evidence before the Court.

If the alibi had been true, it would have been open to the Respondent to call witnesses in support of them and he did not do so. An accused person is perfectly and always at liberty to call his witnesses to establish his alibi. It is settled law that an accused has a duty to lead credible evidence in support of the defence raised. See JOSHUA V STATE (2000) 3 NWLR (PT. 658) 102. In REV. KING v. STATE (2016) LPELR-40046 (SC) Per Ngwuta JSC, (Pp. 42-43), held that:- “The burden of proof of alibi is on the accused person. See Gachi & Anor v The State (1965) NMLR 333 at 335; Nwosisi v.

The State (1976) 6 SC 109. though proof is on the balance of probabilities. See Ozuki v. The State ​(1988) 2 NSCC 75. For an accused person to successfully plead alibi, the plea must be unequivocal, he must state the time, the place and the people who were with him at the time and place and he must raise the plea during investigation and not at the trial, so that the veracity of this statement to the Police to that effect can be verified. See Alami v State (1988) 2 NSCC 271; Obakpolo v. State (1991) 1 NSCC 271; Njovens v. The State (1973) NSCC 257 at 258.

The lower Court was therefore wrong when it posited that the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi. That cannot be the law in view of what is on ground.

​The Respondent in his statement to the police at SARS Abakaliki merely stated that “We the entire youths members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”. The other surrounding facts as revealed by him in the statement make it improbable that he did not go with them, because he did not state why as a Vice-Chairman he did not go with the other youths after stating that it was a unanimous resolve of the Youths to go there after the deceased had disobeyed the task force.

As one of the Youth leaders, what is believable is that together with his Chairman, they led the entire youths to confront the deceased for daring to say that he has formed his own group. He did not also state what he was doing at the village square while the entire youths moved to confront the deceased who had just challenged them.

It would have amounted to a wild goose chase to expect the police to investigate the purported alibi in any other way beyond the evidence already received from the Respondent and other witnesses who fixed the Respondent to the crime scene. This is particularly so when the Respondent did not mention those who saw him or were with him at village square at the material time, so there was nobody the police would have questioned to authenticate the veracity of the alibi. The defence in my view is a hollow afterthought.

In the case of HALADU v. STATE (2015) LPELR-26002 (CA) per Akeju JCA, (Pp. 28-29), it was held: “…where however there is sufficient evidence to fix the appellant or accused person to the scene of crime at the time of its commission, the alibi is demolished and is not worthy of any investigation by police. See NJOVENS V. STATE (1973) 55 C 17, YANOR V. STATE (1965) 1 ALL NLR 193; CHEMWON V. THE STATE (1986) 2 NWLR (Pt 22) 33.”

The PW3, PW4 and PW5 in the course of their viva voce evidence identified the 9 accused persons, the Respondent inclusive as those who come to the residence of the deceased and killed him. PW3 and PW5 in their extra-judicial statement at the SARS office, Abakaliki at the earliest opportunity did mention the names of the youths that came and attacked the deceased in his house. They unequivocally mentioned that the Respondent was part of those who masterminded and supervised the killing of the deceased.

The Respondent in his viva voce admitted that he responded to the traditional gong calling the youths for the meeting of 18/9/2016 and gives the impression by his extra-judicial statement that he was part of those who supervised the murder of the deceased. Interestingly also, the lower Court made a finding of fact that testimony of PW5 shows that the Respondent was present at the scene of the crime and nothing more. See page 497 of the Records.

It is therefore surprising that the lower Court took the trajectory it did, by holding that there was no evidence adduced by the Appellant placing the Respondent at the scene of crime.

The lower Court impugned the evidence of PW5 in concluding that the Respondent did not participate in the alleged crime. The lower Court in making this finding concluded that the evidence of PW5 is not credible as it is wrought with inconsistency and that going by the mental state of PW5 his evidence was unreliable. The records do not support the finding that the mental state of the PW5 made reliance on his testimony risky. He never testified on oath that his oral evidence in Court was affected by his mental status.

​The only allusion to his mental state of health was in relation to his extra-judicial statement which he testified that the facts were not all very fresh in his memory at that time due to the head injury he suffered. Even at that, there is no material contradiction between what he said at the investigation stage via his extra-judicial statement and what he said at the trial. More so, a person is not a competent witness as regards his own mental status. See Makosa v. The State (1969) 1 All NLR 363 and Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565.

But where there is independent relevant admissible evidence confirmative of his mental status, the evidence given by him may be given some weight. See MOHAMMED V STATE (1997) LPELR-1902 (SC).

On the purported contradiction in PW5’s extra-judicial statement as against his testimony in Court as highlighted by the lower Court which relates to the level of participation of one Igwe Oko and Inspr Egwu Oku in the incident which led to the death of the deceased, I do not see that these alleged inconsistencies are material in any particular. They do not relate to the Respondent and anything the Respondent did or failed to do and so cannot help his case.

Even if they were material contradictions, PW5 satisfactorily explained the seeming inconsistencies in both evidence and it is clear that the evidence of PW5 is believable and direct eyewitness evidence. His explanation is consistent with the evidence on record. What is material depends on the facts of each case, it must relate to the ingredients of the charge and relevant to a fact in issue to be material. For instance, in the case of IKEMSON & ORS V.

STATE (1989) LPELR-1473 (SC) it was held: “Contradiction should be on a material issue to amount to material contradiction- Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & Anor v. The State (1974) 9 S.C. 1 at p. 20 arises only when there are material contradictions.” See Dibie V, The State (2007) All FWLR Pt. 363 p.83.

The lower Court also in resolving against the Appellant held that it is curious that the Appellant did not call one Uche Ali, whom the Court considered a vital witness, to testify. This finding of the lower Court is perverse and not borne out of the records. The question to answer is, who is a vital witness? Is Uche Ali a vital, witness? Are PW3, PW4 and PW5 who testified not vital’ witnesses? According to the Court in the case of ABDULLAHI V STATE (2018) LPELR-44455 (CA), it was held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“A vital witness is an eyewitness to the commission of a crime and/or a witness who can give very truthful and relevant evidence that would resolve the case one way or the other. In other words, a witness who gives evidence on what is logical and true is a vital witness. In the instant case, the mother of the second accused person not being the only neighbor of the appellant was not a vital witness capable of giving logical and true evidence. At any rate, the prosecution is not bound to call any and every person who was present at the locus criminis.

It is bound to call only those witnesses who would give relevant evidence in proof of its case. See IZIREN V STATE (1995) 9 B NWLR (PT. 420) 385.”

The evidence shows that Uche Ali not being an eye witness to the murder of the deceased, is not a vital witness and the Appellant was right in not calling him as a witness. From Uche Ali’s extra-judicial statement, he only arrived at the scene of crime when the deed had been done. He only met the deceased in a pool of blood and he was only informed about the role Ejike played which amounts to hearsay. Furthermore, the PW3, PW4 and PW5 were direct eyewitnesses to the crime and were called to testify.

Having testified to what they witnessed, it was not necessary and the Appellant was not bound to call Uche Ali as a witness. The law is that in the discharge of its burden of proof, the prosecution is not required to call every available, eye or particular witness. All that the law requires is that the prosecution should call or adduce evidence which proves the charge against the accused person beyond reasonable doubt. The prosecution therefore has the discretion to call only material witnesses whose evidence is sufficient to prove the charge as required by law. See OGBODU v.

STATE (1986) 5 NWLR 294; AKPAN v. STATE (1992) 6 NWLR (248) 439; Udofia V. State (1981) 11-12 SC, 49 AT 63; INUSA v. STATE (1982) 13 NSCC 70 at 82. In USEN V STATE (2012) LPELR-20063 (CA). It was held that the law does not impose on the prosecution, the duty or function of both the prosecution and the defence and so it is not even bound to call every material witness but if requested such a witness must be tendered for cross-examination.

If the Respondent considered the evidence of Uche Ali to be material, it could have called him to testify, which it failed to do, such failure should not be counted against the Appellant.

The lower Court also stressed that conspiracy was not proved from the extra-judicial statement of the PW5 since it was not proved that a physical meeting was held or that PW5 attended such meeting to know what was discussed thereat. The extra-judicial statement of the Respondent himself corroborated by other pieces of evidence is conclusive proof of the fact that a meeting was held where an unlawful purpose was hatched by the accused persons with the Respondent as one of the leaders.

The Respondent at the earliest time when his memory was still fresh told the police, “I am the Vice Chairman of Amorie Youth Association … The taskforce members are empowered to use cane in the course of their duties.

It is equally the duty of the task force members to… force members of the youth who refused to come for meetings… scheduled a meeting to be held at the village square… At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come… After sometime, they came back and reported that when they got to them, they met one Ali Agha (deceased) who told them … that they have formed their own group we the entire youth members then resolved to go and bring the said Ali Agha and his group to the meeting…” The Respondent knew the natural result of such confrontation with the deceased who has challenged their authority.

Resolving in the manner as they did to compel full-grown adults to attend a meeting against their wish and against their rights to freedom of association would naturally lead to a fracas which was capable of leading to grievous bodily harm or death. The Respondent cannot deny that he did not know that such would result from such confrontation.

To prove conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprise need not be given. All that need to be shown is a meeting of minds. In OLADEJO V STATE (2014) LPELR-22946, Conspiracy was defined as “an offence that is often deduced or inferred from the acts of the parties thereto which are directed towards the realization of their common or mutual purpose or agreement. See NJOVENS v. STATE (1973) 5 SC 17; DABOH v. STATE (1977) 5 SC 197; ERIM v. STATE (1994) 5 NWLR (Pt.346) 522; ODUNEYE v. STATE (2001) 2 NWLR (Pt. 697) 311 AT 332-333, and BALOGUN v.

A-G OGUN STATE (2001) 30 WRN 123 AT 138; (2001) 14 NWLR (Pt. 733) 331 AT 353. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. It is enough for the prosecution to establish that the appellant and the accused persons had a common objective aimed at committing a crime, it suffices. The offence of conspiracy is rarely proved by direct evidence, but by circumstantial evidence and inferences from certain proved facts.

A meeting of the minds to do or cause to be done an illegal act or a legal act by illegal means, is all is required to prove conspiracy.” In Osareren v FRN (2018) 10 NWLR (pt. 1627) 221, the Court held thus:- “Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what.

Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.”

​Placing the essential ingredients or elements of the offence of conspiracy in context to the facts of the present case where the Respondent was charged with the offence of murder alongside the other accused persons. The Respondent admitted that he was a vice Chairman of the irate youths and that “we the entire youth members” (which includes him) resolved to go and bring Ali Agha (the deceased) and his group. It was in the execution of that unlawful resolution that the deceased died. This was stated in his extra-judicial statement, Exhibit “K”.

While PW3 identified the Respondent as one of the masterminds of the murder of the deceased, PW5 testified that the Respondent was there when the crime was committed. Clearly, the agreement and the meeting of the minds were established and the Respondent cannot claim not to be involved in the conspiracy because there was no mention of the specific role he played in the actual murder of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action.

The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in the killing of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action.

The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in killing the deceased. The evidence of PW3 that the Respondent was a mastermind of the killing is not a blanket statement. As a Vice Chairman, he was a supervisor of the murderous action which led to the death of the deceased. That much can be gleaned from his own statement.

​I am at one with the trial Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him, on the authority of NWANKWOALA V STATE (2006) 14 NWLR (PT. 1000) 663, Ejike Obiahu would only be the hand with which the other accused persons struck. Interestingly, the lower Court in APPEAL NO. CA/E/130C/2018 actually acknowledged that the conviction of the Accused persons was based on Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State without considering the true intent and purport of the said provisions.

The said sections provide that: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

When a person counsels another to commit an offence, and an offence is actually committed after such Counsel by the person to whom it is given, it is immaterial whether the offence actually committed was the same as that counseled or in a different way, provided in either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed it by himself. ” ​The Court had given a solid interpretation of Section 8 of the Criminal Code dealing with common intentions which is in pari materia with the provisions of Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State in MBANG V.

THE STATE (2009) LPELR-1852 (SC) AT 20-21 PARAS E-E, thus:- “…in Ogbali & Anor v. State (1983) N.S.C.C. 156 at pp.157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions.

Bello J.S.C. (as he then was) said: “The only issue worthy of consideration on both appeals, in view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” I may point out straight away that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section.

Firstly, there must be evidence that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; thirdly that the death of that person was probable consequence or the prosecution of the unlawful purpose. ”

It is also in evidence that Amorie 0zizza Youths meeting had been banned from operating in the community due to their nefarious and notorious modus operandi which was the status quo until this particular meeting was called at the instance of an individual whom the deceased defeated in a political contest for the councillorship seat to actualize his plans of killing the deceased. The Youths in the course of executing the unlawful instruction went with machetes and cutlasses and were chanting war songs.

If their intention was not to kill or cause grievous bodily harm why did they proceed with such dangerous weapons?

​The record of Court shows the reverse of what the lower Court held. From the totality of the evidence led, the Appellant proved beyond reasonable doubt that the Respondent with his co-accused persons were at the scene of crime after having formed a common intention to prosecute an unlawful purpose of using extreme violence to force the deceased to attend a meeting that he did not intend to attend and in conjunction with one another, and in the prosecution of such purpose the offence of murder was committed.

In the circumstance, death of the deceased was the probable consequence of the prosecution of such purpose as the Respondent and his co-accused persons used machetes and cutlasses on the deceased to force him to attend a meeting, the lower Court was therefore under a legal duty to find the Respondent and each of this cohorts to have committed the offence of murder.

It has now become an elementary proposition of the criminal law that everyone is taken to intend the natural and probable consequences of his or her act. The consequence of an act is said to be probable if a reasonable man would consider its occurrence to naturally flow and be the normal effect of the act. See Afolabi v State (2016) LPELR-40300 (SC) P.19; Shazali v State (1988) 12 SC (pt. 11) 58; R v Dim 14 WACA 154 at 155; Yakubu v The State (1980) 3 – 4 SC 84 at 98.

From the above foregoing, it is abundantly clear that the Appellant herein proved its case beyond reasonable doubt as it has demonstrably proved all the ingredients of murder beyond reasonable doubt. The ingredients for murder which the Appellant established in the present case are: (a) That a person died; (b) That the death of that person was caused by the Respondent; (c) it was the Respondent’s act which caused the deceased’s death and it was done with the intention of causing bodily harm.

And; (d) the Respondent knew that death or grievous bodily harm would be a probable, not likely consequence of this act.

The issues are resolved against the respondent and in favour of the appellant whose appeal is meritorious. I allow the appeal and abide by the consequential orders made.

EJEMBI EKO, J.S.C.: The decision just delivered in this appeal by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, represents my views in the appeal. I hereby endorse and adopt the judgment.

​The decision of the Court of Appeal appealed, not properly evaluating and considering the totality of the prosecution’s case, particularly the evidence of the PW.3, PW.4 and PW.5 – eye witnesses whose evidence not only fixed the respondent to the locus criminis but also fixed him thereat to the active roles resulting in the brutal killing of the deceased, was clearly perverse and unreasonable. The respondent’s testimony or defence evidence offered no effective rebuttal of the evidence of these three eye witnesses.

It did not cast any reasonable doubt on the totality of the prosecution’s evidence to have warranted the lower Court resolving the bogus benefit of doubt in favour of the respondent.

On alibi, as a defence, I agree with the lower Court that – “The defence, where raised presupposes that the accused person was somewhere else other than the crime scene at the time the crime was created.”

But that is how far I can go with the lower Court on this. It was, inspite of the credible and undiscedited evidence of the PW.3, PW.4 and PW.5 fixing the respondent to both the scene of crime and the alleged crime, most perverse and preposterous of the lower Court to hold that “there is no evidence adduced by the prosecution placing the respondent at the scene of crime”. There was. The evidence was abundant and overwhelming.

An accused person who pleads alibi has a duty, under Section 36 (1) of the Constitution, to give his prosecutor an opportunity to be heard in rebuttal on the plea. That is what the principle of audi alteram partem is all about. It works both sides in the administration of justice. Neither party shall deny the other that basic fundamental right to fair hearing. A defendant pleading alibi owes the prosecutor a duty not to deny the latter that basic constitutional right. Putting the prosecutor on notice of that plea gives him the opportunity and liberty to investigate the plea of alibi.

The lower Court appears to have, erroneously, shifted the evidential burden, the accused person has to cast reasonable doubt on the case presented against him by the prosecution. It is not correct, in law, as the lower Court held that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi”. The reasoning is completely bereft of any logic. ​Firstly, what is alleged without proof can be denied without proof.

Once the defendant, who raised the defence, fails to establish it then it does not behove or obligate the prosecution to rebut it. Secondly, the Evidence Act 2011, in Sections 131 and 132 provides that whoever desires the Court to give judgment to him as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; and that the burden of proof lies on that person who will fail if no evidence at all were called on either side.

Section 136 of the same Evidence Act, further provides that the party who pleads a particular fact has the burden of providing the proof as to the existence of that particular fact.

Accordingly, I allow the appeal. The decision of the lower Court No. CA/E/132C/2018 delivered on 1st August, 2019, unreasonable and perverse as it is, shall be and is hereby set aside. The decision and orders of the trial High Court in charge No. HAF/24C/2017 delivered on 15th October, 2018 are hereby affirmed and restored. Appeal allowed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment delivered by my learned brother, E. A. Agim, JSC, in draft, and agree completely that the appeal is meritorious for the sound reasons adumbrated therein, which I adopt. The appeal is allowed by me too in term of the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice EA Agim, JSC, has accorded me the opportunity of reading before now, the judgment just delivered by His lordship. I agree with the reasoning reached therein, to the conclusive effect that the present appeal is meritorious, thus ought to be allowed.

Hence, the appeal is accordingly hereby allowed by me. I abide by the consequential orders thereby setting aside the judgment of the Court below delivered on August 1st, 2019 in Appeal No. CA/E/131C/and restoring the judgment of the trial High Court of Ebonyi State delivered on October 5th, 2018 in charge No. HAF/24C/2017.

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

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment) : This Appeal No. SC.128/2019 was commenced on 29-1-2019 when the appellant filed a notice of appeal in Appeal No. CA/PH/13CR/2018, against the judgment of the Court of Appeal delivered on 7-12-2018 upholding the judgment of the High Court of Bayelsa State at Yenagoa delivered on 22-6-2017 in charge no.

YHC/173C/2016, finding that the appellant and his co-accused are not guilty of the offences of conspiracy to commit robbery and armed robbery for which they were charged and tried and rather finding them guilty of the offence of conspiracy to commit robbery and the offence of robbery.

Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellant’s reply brief.

The appellants’ brief raised the following issues for determination – 1. Whether the lower Court was right when it affirmed that the trial Court can convict the appellant of a lesser offence of robbery when there is no provision under the Robbery and Firearm (Special provisions) Act, Cap. R11, LFN 2004 to do so? Distilled from ground one of the Notice and Grounds of Appeal. 2. Whether the conviction of the appellant on the basis of Exhibit A and B is not perverse? Distilled from ground two of the Notice and Grounds of Appeal. 3.

Whether the lower Court was right in affirming the conviction of the appellant in the circumstances of this case? Distilled from ground three, four and five of the Notice and Grounds of Appeal

The respondent’s brief also raised three issues for determination as follows:- 1. Whether the lower Court was right in affirming the conviction of the appellant for the lesser offences conspiracy to commit robbery and robbery under the Robbery and Firearms (Special Provisions) Act, Cap. R11, LFN, 2004 by the trial Court as against the offences of conspiracy to commit armed robbery and armed robbery which the appellant was charged. 2.

Whether the lower Court rightly affirmed the reliance of the Court on the extra-judicial statement of the appellant (Exhibit B) which was admitted without objection. 3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the respondent/prosecution which could have been resolved in favour of the appellant and fatal to the case of the respondent/prosecution.

The date of the delivery of the judgment of the Court of Appeal and the date of the filing of the notice of this appeal against that judgment show that the notice of appeal was filed on the 53rd day after the date the judgment of the Court of Appeal was rendered. I am compelled by this situation to find out if this appeal was filed within the time prescribed by Section 27(2)(b) of the Supreme Court Act 2004 before I delve into the merit of the issues raised for determination in this appeal if need be.

Section 27(2)(b) of the Supreme Court Act 2004 provides that “The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are: (a) … (b) In an appeal in a criminal case, thirty days from the date of the decision appealed against.” The record of this appeal shows that the judgment of Court of Appeal was delivered on 7-12-2018. The notice of this appeal was filed on 21-1-2019. It is glaring that the notice of appeal was filed after 53 days from the date of the Court of Appeal judgment.

It was not filed within 30 days from the date of the judgment as required by Section 27(2) (b) of the Supreme Court Act 2004. It was therefore filed out of time. The notice of this appeal is incompetent. See Adelekan V Ecu-Line NV (2006) 5SC (pt. 11) 32, Etim V The State (1982) LPELR-1173(SC). This appeal cannot be sustained on the incompetent notice of appeal and this Court is robbed of jurisdiction to entertain and determine it by the absence of a competent notice of appeal. As it is, the notice of the appeal and this appeal are struck out.

Having struck out this appeal, no useful purpose would be served determining the merit of the appeal that is adjudged incompetent and struck out.

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

JOHN INYANG OKORO, J.S.C.: I am in agreement with the conclusion reached in the lead judgment which was made available to me before now by my learned brother, Emmanuel Akomaye Agim, JSC.

It has now become trite that criminal appeals from the Court of Appeal to this Court must be filed 30 days from the date of the judgment appealed against. See Okereke Vs. James (2012) 16 NWLR (Pt. 1326) 339, Afribank Nigeria Plc Vs. Akwara (2006) 5 NWLR (Pt. 974) 619. However, Section 27(4) of the Supreme Court Act grants a window for enlargement or extension of time within which an appellant who failed to file within statutory period, may bring his appeal out of time, albeit, subject to the discretion of this Court.

Failure to comply with the statutory requirements which are condition precedent to filing a competent appeal is fatal to the appeal, such that this Court cannot entertain the appeal no matter how well argued. This appeal therefore having been filed out of time prescribed by the Act without obtaining the leave of this Court for extension of time, is invalid and deserves to be struck out.

To this end, the notice of appeal filed on 29th January, 2019 is hereby struck out, same being adjudged incompetent.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I agree with him that the Notice of Appeal filed outside the prescribed period for filing an appeal from the Court of Appeal to this Court is incompetent, therefore, this Court lacks jurisdiction to deal with the appeal. The notice of appeal is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247 SC.

In this case, the Notice of Appeal is incompetent, and it is struck out.

ABDU ABOKI, J.S.C.: I am in support of the judgment prepared by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, which I had the privilege of reading before now.

This is an appeal against the judgment of the Court of Appeal, holden at Port Harcourt, delivered on the 7th of December, 2018.

The Appellant herein and one Kuroakegha Femowei, were charged before the Bayelsa State High Court, for the offences of Conspiracy and Armed Robbery. The counts read as follows: COUNT 1 STATEMENT OF OFFENCE CONSPIRACY contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004. PARTICULARS OF OFFENCE You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division conspired to commit a felony, to wit: Armed Robbery.

COUNT 2 STATEMENT OF OFFENCE ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act CAP R11, LFN 2004. PARTICULARS OF OFFENCE You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division of Bayelsa State, while armed with dagger and other offensive weapons, robbed Dr. Ekpebu Douglas of the following items, namely: 3 Plasma Television, a LCD Flat Screen TV, one Samsung phone, one Techno phone, a bag containing my cloths, cash and other valuables.

Upon arraignment, the accused persons (now convicts) pleaded not guilty to each of the Counts and the matter proceeded to trial. In proof of its case, the Prosecution called four (4) witnesses, (PW1 – PW4), and tendered some Exhibits. The Appellant testified as DW2 and tendered no exhibits.

At the close of trial, they were found guilty for lesser offences, that is: the Offences of Conspiracy to commit Robbery, and Robbery and sentenced to twenty-one (21) years imprisonment.

The Appellant was dissatisfied with his conviction and sentence, and appealed to the Court below. The crux of his appeal at the Court below was that the trial Court was in error to have convicted him for a lesser offence, when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so.

The Court below in its judgment, affirmed the judgment of the trial Court, and dismissed the appeal.

The Appellant, further aggrieved by the judgment of the Court below, appealed to this Court.

In his brief of argument filed on the 28th of February, 2019, F.T. Okorotie, Esq., of Counsel for the Appellant, distilled three issues for this Court’s determination. They are: 1. Whether the lower Court was right when it affirmed that the trial Court can convict the Appellant on a lesser offence of robbery when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so? 2. Whether the conviction of the Appellant on the basis of Exhibits A and B is not perverse? 3.

Whether the lower Court was right in affirming the conviction of the Appellant in the circumstances of this case?

A Brief of argument, settled by Arthur, Andrew Seweniowor, the Honourable Attorney General of Bayelsa State, was filed on behalf of the Respondent on the 5th of April, 2019, and the following issues were raised therein, that is: 1. Whether the lower Court was right in affirming the conviction of the Appellant for the lesser offences of conspiracy to commit robbery, and robbery, under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, by the trial Court as against the offences of conspiracy to commit armed robbery, and armed robbery, which the Appellant was charged? 2.

Whether the lower Court rightly affirmed the reliance of the trial Court on the extra-judicial statement of the Appellant (Exhibit B) which was admitted without objection? 3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the Respondent/Prosecution which could have been resolved in favour of the Appellant and fatal to the case of the Respondent/Prosecution?

My learned brother, AGIM, JSC, has, in the lead judgment pointed out that the Notice of Appeal giving birth to this appeal was filed 53 days after the judgment of the Court below. This undoubtedly is in clear contravention of the provisions of Section 27(2)(b) of the Supreme Court Act 2004, which provides that a notice of appeal should be filed within 30 days after the judgment of the Court below. This Court, in Odunze & Ors v.

Nwosu & Ors (2007) LPELR-2252 SC, opined that: “A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions… Furthermore, once the notice of appeal is vitiated in any way, the appeal becomes incompetent and liable to be struck out. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.”

The consequence of the above is that I agree with my learned brother, EMMANAUEL AKOMAYE AGIM, JSC, that the Notice of Appeal, being incompetent has invalidated this appeal. Accordingly, the Notice of Appeal and this appeal are hereby struck out. Appeal Struck Out.

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

​Appeal dismissed.

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the circumstances, this Court cannot intervene.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

​MUSA

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

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

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

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

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

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

​UWANI

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

​HELEN

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Defendants were well known to their victims.

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

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

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

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court; Coram: Modupe Fashanmi, Nonyerem Okoronkwo and Haruna Simon Tsammani JJCA, who delivered the judgment on the 16th February, 2018 affirming the decision of the High Court of Ogun State delivered on the 17th April, 2014 convicting the appellant of conspiracy to commit armed robbery and armed robbery, per A.J. Lamina J.

BACKGROUND FACTS The Appellant was charged with a one (1) count offence of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap.R.11, Laws of the Federation of Nigeria and four (4) counts of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11, Laws of the Federation of Nigeria.

Count 4 was struck out by the learned trial Judge consequent upon a no-case submission application by the defence, while the Appellant opened his defence at the trial Court with respect to counts 1, 2, 3 and 5. The ruling on the no case submission is at pages 101-107 of the record of appeal.

The particulars of the offences charged per pages 3-4 of the record of appeal are that the Appellant along with others now at large purportedly conspired on the 16th November, 2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State while armed with an offensive weapon to wit: gun robbed one Idowu Adebayo of the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira) (Count II).

Another count is in respect of the robbing of Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) (Count III). Yet another count is the robbing of Joseph Bankole of a Mazda 626 car with registration No. AJ 319 AKM and the sum of N50,000.00 (Count V).

​The prosecution listed nine (9) witnesses but only four (4) witnesses gave evidence for the prosecution to wit: PW1 – Mr. Raheem Adegbite, cashier at “P” Sunny Enterprises, PW2 – Mr. Joseph Bankole, a retired soldier, PW3 – Idowu Adebayo, a Salesman and the PW4 – Sgt Lawal Lukman, Police Officer. The Appellant (accused person at the trial Court) gave evidence on his behalf.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The evidence of PW1 is at pages 53 – 57 of the record of appeal. The evidence of the PW2 is at pages 57 – 73 of the record of appeal. The evidence of the PW3 is at page 74 of the record of appeal. The evidence of the PW4 is at pages 76 – 78 of the record of appeal. The evidence of the Accused (Appellant) is at pages 107a – 107d of the record of appeal. The final written address of the Accused (Appellant) is at pages 108 – 110 of the record of appeal while the final written address of the prosecution is at pages 111 – 113 of the record of appeal.

At the conclusion of the trial, the learned trial Judge in his judgment depicted at pages 114 – 140 of the record of appeal found the Appellant guilty as charged for conspiracy to commit armed robbery and armed robbery in respect of grounds 1, 2, 3 and 5 whereupon the Appellant was sentenced to death by hanging consequent upon the Appellant filing an initial appeal to the Court of Appeal, Ibadan Division upon being dissatisfied with the aforesaid judgment of the trial Court.

​The Appellant was granted extension of time to appeal by the Court of Appeal, Ibadan. The subsequent notice and grounds of appeal are depicted at pages 114 – 140 of the record of appeal. The Judgment of the Court of Appeal, Ibadan Division is at pages 190 – 222 of the record of appeal. The appellant being dissatisfied with the judgment of the Court of Appeal, Ibadan Division filed a Notice and Grounds of Appeal to the Supreme Court. He nominated the following issues for determination, viz:- 1.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the Court. (Grounds 1, 2, 3 and 6) 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s purported statements – exhibits “B & C- C2” as exhibits and treated same as confessional statement in spite of the fact that same were retracted by the Appellant. (Grounds 4 and 5).

Learned counsel for the respondent Eko Ejembi Eko Esq adopted the brief of argument filed on 11/7/2018 and deemed filed on 5/11/2020 and in it were formulated three issues for determination, viz:- 1. Whether the learned Justices of the Court of Appeal Ibadan division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of evidence before the Court. 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s statement – Exhibits B, C & C2 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the Appellant. 3. Whether the Appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

The No.3 issue of the respondent is comprehensive and sufficient in the determination of this appeal and I shall use it as a single issue.

LONE ISSUE Whether the appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

Advancing the position of the appellant, learned counsel stated that the prosecution did not prove its case beyond reasonable doubt against the appellant as to warrant the lower Court affirming the appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the trial Court. That there is no substantiated evidence of the participation of the appellant in the purported robbery incident. He cited Nigerian Airforce v Obiosa (2003) 4 NWLR (pt. 810) 333 at 253; Obiakor v The State (2002) 10 NWLR (pt. 776) 612 at 616.

For the appellant, it was contended that the ingredients of armed robbery were not made out. He cited Lukmon Osetola & Anor v The State (2012) All FWLR (pt. 649) 1020 at 1037; Usman Maigari v The State (2010) All FWLR (pt. 546) 405 at 427.

​That the evidence proffered by the appellant was discountenanced by the trial Court who chose to believe that of the PW1, PW2 and PW3 as to whether there was a robbery incident on the 16/11/2007.

That the common purpose necessary in an offence of conspiracy was not made out and also that the agreement between the parties was not proved beyond reasonable doubt. He cited Smart v The State (2016) LPELR – 40827; Njovens v The State (1973) 5 SC P. 7.

That the prosecution did not lead any evidence from which the trial Court can draw inferences of the offence of conspiracy to commit armed robbery from the acts of the appellant in order to justify its affirmation of the conviction of the appellant by the lower Court.

Learned counsel for the appellant further submitted that there are contradictions in the evidence of the prosecution witnesses which should be resolved in favour of the appellant. He cited Agbo v The State (2006) All FWLR (pt. 309) 1380 at 1399 etc.

Chief Omu of counsel for the appellant contended that the learned trial judge wrongly admitted the extra-judicial confessional statement of the appellant, Exhibits “B & C- C2” as the appellant had retracted the said statements and the Court below was wrong to affirm the reliance of the trial Court on the said statements to convict the appellant. He cited Folorunsho Kazeem v The State (2009) FWLR (pt. 465) 1749 at 1773.

That the trial Court had not determined the truth or otherwise of the confessional statement before admitting and relying on them to convict.

For the appellant, it was contended that the Supreme Court should interfere with the concurrent findings of the two Courts below as they appear perverse, occasioned a miscarriage of justice against the evidence adduced and in violation of some principles of law and procedure. He relied on Ajayi v Adesuyi (2012) All FWLR (pt. 634) 1 etc.

Learned counsel for the appellant concluded that if the Court is not minded to allowing the appeal and acquitting the appellant, the Court should reduce the sentence. He cited Semiu Afolabi v The State (2013) All FWLR (pt. 702) 1690.

Mr. E.E. Eko of counsel for the respondent submitted that the uncontroverted and unchallenged testimonies of the prosecution witnesses show clearly that the appellant in the company of others armed with guns, robbed P. Sunny Enterprises Ltd on 16/11/2007. That the evidence showed that the appellant in conjunction with others within the same vicinity also armed with guns robbed PW2 of his car and valuables on the same day, and then when the appellant was apprehended, he shot PW2 in an attempt to escape.

He went on to contend that the confessional statement of the appellant confirming he was a member of the gang of armed robbers and that he had joined them for the particular robbery that took place on 16/11/2007 which is the date of incident under discourse. That there was enough evidence with which the conspiracy would be inferred. He cited Bouwor v State (2016) LPELR-26054 (SC) pp. 13 – 14.

Learned counsel for the respondent submitted further that the Court could still utilise the retracted confessional statement if there exist other independent corroborative evidence to give credence to the statement. He cited Ejinima V State (1991) LPELR – 1067 (SC).

That the concurrent findings of the two Courts below ought not to be disturbed as the appellant has not put forward any perverse route in the course of the findings and no violation of law or procedure nor a travesty of justice. He cited Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

The stance of the appellant in brief is captured in his assertion that there was no evidence linking the appellant to the purported robbery and that the confessional statement of the appellant were wrongly relied on by the trial Court and upheld by the Court below and the weight of evidence implored the Court to allow the appeal and set aside the conviction and sentence of the appellant.

The respondent on its part rejected the position of the appellant on all fronts stating that the offences of conspiracy to commit armed robbery and armed robbery were proved by the prosecution beyond reasonable doubt.

The offences of conspiracy to commit armed robbery and armed robbery which are contrary to Sections 6(b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.R.11 LFN.

In the offence of conspiracy to commit armed robbery, in order to secure a conviction the prosecution must prove the following facts: a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the armed robbery or series of robbery; c. That the robbery or each of the robberies was an armed robbery.

To ground a conviction for the offence of armed robbery, the prosecution has the duty of proving beyond reasonable doubt that; a. That there was a robbery; b. That the robbers were armed with offensive weapons as at the time of the robbery; and c. That the accused person participated in the robbery. The above three elements must be established beyond reasonable doubt before the Court can convict for each of the respective offences. It is to be noted that if any one of these elements is not proved beyond reasonable doubt, the conviction will be quashed on appeal.

See the case of THOMAS V STATE (2017) LPELR-41735 (SC). See also Yusuf v State (2018) All FWLR (pt. 405) 1731.

The concept of proof beyond reasonable doubt in criminal trials was orchestrated by the Supreme Court as that reasonable doubt which will justify an acquittal. It is a doubt based on reason arising from evidence or lack of it. That doubt which a reasonable man or woman might entertain and is neither fanciful nor an imaginary doubt. It is such a doubt as would cause an otherwise prudent person to hesitate before acting in a matter of importance concerning themselves. See Jua v State (2010) LPELR-1673 SC per Tobi JSC.

Another way of stating it is that, it is doubt which is logical, rational and lucid and so before a Court can convict for a capital offence such as the offence under review, it must ensure that the evidence before it is credible, coherent, leaving no hesitation that the accused committed the offences.

In the case at hand, the appellant was charged with a one count of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act which ingredients that must be proved to convict for the said offence to be as follows:- a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the robbery or series of robberies; c. That the robbery or each of the robberies was an armed robbery.

Going back in time to the trial Court, PW1 and PW2 gave evidence that appellant was in the company of other persons, armed with offensive weapons when they robbed PW1, PW2 and PW3 on the 16/11/2007 at P. sunny Enterprises Ltd and the immediate environs. In fact PW1 stated that he was in the office at P. Sunny Enterprises Ltd when some people wielding guns ordered him to open the safe in the cash office and the people took the money and rushed out. PW1 later identified appellant firstly at Adigbe Police Station and later at State C.I.D. Eleweran as one of the robbers that robbed him.

These pieces of evidence were not challenged or controverted therefore the evidence must be accepted as the correct version of what PW1 said. See Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC).

PW3 testified that he was in the company of PW1 when he was also robbed of the sum of N88,435.00 at the same venue on the same date. That it was when he (PW3) entered the office that he met the two boys who were armed with guns and they ordered him to lie down and subsequently dispossessed him of the sum of N88,435.00. Of note is that there was no cross-examination which gives the implication that appellant accepted the narration as the truth of the matter. See Ighalo v State (2016) LPELR – 40840 (SC) per Akaahs JSC.

PW2 testified that he was robbed of his MAZDA car and the sum of N50,000.00 by two people when he tried to assist them after their car fell into a ditch in the vicinity of P. Sunny Enterprises Ltd on the said 16/11/2007. The appellant was subsequently apprehended inside the said car that had fallen into the ditch and when searched by PW2 who recovered a gun and 9 cartridges from him before appellant shot him.

I shall quote excerpts from the testimony of PW2 for more clarity, thus:- “On the 16/11/2007, around 10.30am, I wanted to go to the bank… as I entered the Street (Ayorinde Street) being a major road, I looked at my left and my right I saw two vehicles pursuing themselves. I just saw a Toyota Camry car entered the gutter that day, I was moved and I came out of my vehicle to rescue them. I thought they had an accident so that I can give a helping hand and take them to hospital if they are (sic were) injured. They pointed a gun at me and asked me to give them my key.

I shouted and they took the key of my car and drove my car away.” PW2 stated further that: “…The Toyota Camry was still inside the gutter and somebody among the crowd entered the Toyota Camry and off the engine. This person now shouted that somebody is inside the car. The Accused person was inside the car at the side where the Toyota Camry entered the gutter and there was no escape for him and thus he could not to follow his colleagues. He was pulled out of the car and the crowd started beating him.

I stopped them that if he was wounded now I will not be able to report to the Police and it may be impossible for me to recover my car that has just been stolen, I held him and started searching him and I brought out nine(9) cartridges from his body. Because I did not allow the crowd to beat him, they started shouting that his colleagues are coming and the crowd disappeared leaving only myself and the Accused. He started to struggle with me and I refused to let leave him. He put/dipped his hand into his pant and brought out a gun.

He wanted to shoot me and eventually shot me and I discovered blood on my clothes, so I left him.

The gun shot attracted the people out again as they thought he has killed me and I asked them to pursue him as he had dispersed with the only cartridge inside the gun…” (See pp. 57 – 73 of the records of appeal) The Appellant on the 16/11/2007 made a statement to the police wherein he stated that he was in the company of some other people who committed the alleged robberies on the day in question but he didn’t have anything to do with the robberies as he was only in the car; he admitted to having been apprehended in the car and he went on to state further thus: “…on our way going one BMW car hit our car and he started pursuing us, we got to one street our car got accident with the BMW, Segun and two other came down and escape.

I don’t know what they take to escape I was still in the car, when people came around and started beating me. Nobody pursuing me, I was caught inside the car where the car got accident. Inside the car with me they found one locally single barrel gun and one …shot double barrel gun in the black bag, they did not find the gun inside my pocket. The ten life cartridges is inside the black bag. I am not the owner of it. Segun is a student of Moshood Abiola Polytechnic Abeokuta, I don’t know his a robber and I have not followed them to any operation before.” (See pp. 10-12 of the records of appeal)

In a subsequent statement made to the police on the 22/11/2007 the same Appellant stated that he was a member of gang of armed robbers and that he had joined them for the particular robbery that took place on the 16/11/2007 and he had narrated thus:- “…when I get there, I met them inside Toyota Corolla car black I entered with them.

They share the gun which I was given one local made double barrel pistol and all of us were with gun with enough cartridges we got to a place they stopped the car, Segun, Alabi and Abiwere came down of the car and enter one store and they came back with one travelling bag containing money and then enter the car we drove away on our way going one BMW hit our car and started pursuing us until we got to a place, I don’t know the name of the place when the BMW overtake us and the car run into drainage which the car cannot move again, Segun Alabi, Abiwere came down of the car and run away and left me inside the car when I try to escape people around the place pursue me and I was caught with gun in my hand, I hold double barrel pistol locally made …”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In yet another statement made by the same Appellant to the police on the 23/11/2007 the Appellant narrated details of how he joined the armed robbery gang, the names of his gang members and how much he realised from other earlier successful armed robbery operations and stated regarding the specific robbery operation of the 16/11/2007 thus: “…The place we robbed is one beer depot at Oke Sokori. When Segun and others came back they held one medium sized bag and entered the vehicle.

As we were going our vehicle hit one other vehicle in front of us, from there the owner of the vehicle we hit started pursing our vehicle. He pursued our vehicle to it eko where he made our vehicle entered gutter. At that place my other gang members came down from our vehicle because my eyes were turning as a result of the accident. From there my colleagues left me inside the vehicle while they quickly snatched another vehicle with gun to escape from the scene, While I was inside the car, some people came around me up there and beating me …” (See Pages 20-23 of the record of appeal)

The confessional statement of the appellant, exhibits B, C-C2 gave details of the planning, participation of appellant and the others in the robbery which was an armed robbery.

On the matter of conspiracy, it is now well settled that conspiracy to commit an offence is such that it is inferred or deducible from the criminal acts of the accused person done in conjunction with others. Conspiracy in this case is inferred from the common commission of the offence by the accused in company of others as was done by the appellant.

The inference deducible upon which the offence of conspiracy is proved stems from the fact the elements of the offence are embedded in the agreement or plot among the parties which is rarely capable of direct proof hence it is deduced from the acts of the parties towards the realisation of the common criminal purpose. The various acts of the accused and his cohorts including appellant’s extra-judicial statement have given ground to the establishment of the offence of conspiracy to commit armed robbery.

See Bouwor v State (2016) LPELR-26054 (SC); Njovens & Ors v The State (1973) 5 SC 17; Haruna & Ors v The State (1972) All NLR 738 at 754.

​The defence pushed by the appellant that he was in a vehicle close to the scene of the robbery and was not one of the robbers, is a story that would have rendered some comic relief except that a serious incident such as armed robbery cannot be a laughable happening. The story he told the Court is not supportable in the light of the overwhelming evidence adduced by the prosecution including the identification of the appellant as participating in the acts and the corroborative confessional statements he proffered.

On the question whether the Court below was right to have affirmed the decision of the learned trial judge admitting the appellant’s statements, Exhibits B, C & C2 as evidence and treating same as confessional statements despite the appellant retracting them. In answer to that poser, I would humbly state that it is now beyond debate as to whether a retracted confessional statement can be used to convict an accused as happened in this instance if there exist other independent corroborative evidence giving credence to the truth of the resiled confessional statement as in this case.

See Ejinima v State (1991) LPELR – 1067 (SC) per Nnaemeka-Agu JSC. The mere assertion by the appellant that he did not make the confessional statements did not render them inadmissible nor reduce the weight the trial Court would attach to such evidence. This is because the issue of admissibility or not of extra-judicial statements comes up when the voluntary status of the making is questioned, which is not the case here. See Sunday v State (2017) LPELR – 42259 (SC) per Bage JSC.

Clearly, the circumstances prevailing at the trial Court did not hamper the learned trial judge admitting the retracted or denied confessional statements and going on to rely on them in convicting the appellant on the charges of conspiracy to convict armed robbery and armed robbery itself.

Now comes the final point of the appeal before the Court being based on concurrent findings of fact of the two Courts below. The appellant is asking this Court to reverse those findings and the question thereby thrown up is if the appellant has shown a miscarriage of justice or wrong application of law or procedure for which this Court would go against the policy of Court which is usually loathe to interfere with concurrent findings of facts of lower Courts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

From what is before me, there is nothing persuading a departure from the norm concerning concurrent findings of fact of the two Courts below as what led to those findings are clearly borne out of the record and there was proper application of the law, substantive and procedural and no miscarriage of justice had taken place. Therefore the push to upset those findings are propelled by empty air. See Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

Indeed, there is a surfeit of material on which the trial Court found the essential elements of the offence of conspiracy to commit armed robbery and armed robbery proved beyond reasonable doubt. The Court below rightly affirmed those findings and conclusion and I see nothing on which I can upset what those two lower Courts did.

There is no merit in this appeal and I dismiss it as I affirm the judgment of the Court of Appeal which upheld the conviction and sentences of the appellant. Appeal Dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is no merit in the appeal and should be dismissed. I too will dismiss it. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement delivered now. I agree with His Lordship that there is no merit in this appeal. It therefore deserves to be dismissed.

Much like a drowning person, the appellant canvassed all kinds of arguments in the vain belief that they could save him. For instance, he entreated this Court to upturn the concurrent findings of the lower Courts. The answer to this submission is not far to seek. As it is well-settled, an appellant who desires that this Court should upset the concurrent findings of lower Courts has a big burden. It is his duty to show, in a clear and positive way, that such findings violate some principles of law or procedure.

Against that background, they therefore deserve to be overturned, Ibanga v Usanga [1982] 5 SC 103; Kuforiji v V.Y.B. Ltd [1981] 6-7 SC 40; Awoyale v Ogunbiyi [1986] 2 NWLR (pt 24) 626; Olaloye v Balogun [1990] 5 NWLR (pt 148) 24, 38; UBA Ltd v Achoru [1990] 6 NWLR (pt 156) 254; Motunwase v Sorungbe [1988] 4 NWLR (pt 92) 90; Olatunde and Anor v Afolabi (2001) LPELR – 2576 (SC).

The appellant failed to donate any material to warrant any interference with the said concurrent findings of the lower Courts. I shall therefore decline his invitation to do violence to settled principles. This appeal has no redeeming feature. I therefore, enter an order dismissing it. Appeal dismissed. I abide by the consequential orders in the leading judgment.

EJEMBI EKO, J.S.C.: The appellant herein is complaining about concurrent findings of fact against him by the two Courts below. The appeal is essentially against concurrent findings of fact. It is against this background that the counsel for the respondent submits, correctly in law, that the concurrent findings of fact by the Courts below ought not be disturbed unless the appellant has been able to establish that those concurrent findings are perverse, or that there had been a violation of some law or procedure, which has occasioned a miscarriage (or travesty) of justice: CHUKWUEMEKA AGUGUA v.

THE STATE (2017) LPELR – 42021 (SC). That is the extant state of the law which this Court, in its appellate practice, has consistently stuck to.

The mere fact that the appellant retracted his confessional statement which was massively self-incriminating does not amount to special circumstance warranting this Court to interfere with the adverse concurrent findings of fact.

A retracted confession is not ipso facto an inadmissible piece of evidence. It is still a legal piece of evidence available to the trial Court for purposes of evaluation of the totality of the evidence. The trial Court could act on it, if it was satisfied that the appellant made the statement voluntarily, or when other pieces of evidence outside the disputed confession corroborated the confession in materia paticular, as in the instant case.

Exhibits B & C, C2 were the extra judicial statements of the appellant, They were recorded by the PW.4. They were confessional. At the effort made by the appellant to retract and indict them, on grounds of their involuntary making, the trial Court subjected them to trial-within-trial, and found them to have been voluntarily made by the appellant. That finding affirmed by the intermediate Court had thus resolved the issue – whether the appellant infact made the confessions. It was an appealable decision (by dint of Section 318 of the Constitution). It was not appealed.

It therefore persists and subsists against the appellant, and/or between the parties.

On the confession alone, a confession being the best evidence, the trial Court could have sustained the appellant’s conviction for the alleged offences.

In any case, the purported retraction was half-heartedly made post facto. In one breath the appellant admitted making his extra-judicial statement in Yoruba Language. It was not a total plea of non est factum. No miscarriage of justice exists, nor has any been established, to warrant interference. In any case this is not the core issue in this appeal.

​This same issue was argued as issue 4 at the lower Court. It was dismissed. The repetition of the same issue in this further appeal is, in my view, an abuse of Court process. The process of appeal is for review of the decision complained of, and not for repetition of an issue resolved or determined. The appellant therefore in his appeal must show how wrong the resolution of an issue by the lower Court was, and not to re-present the same issue to the higher Court for a second try at the bite.

It should be clear to the appellant’s counsel, by dint of Section 233(1) of the Constitution, that the jurisdiction enuring to this Court is only “to and determine appeals from the Court of Appeal”, and not from the trial Court and that closes against the appellant the right to re-present an issue presented and resolved against him at the intermediate Court in the appeal against the trial Court’s decision.

Coming, as I do, to the conclusion that the appellant has not been able to establish any special circumstance warranting this Court interfering with, or disturbing, the concurrent findings of fact against him; I have no cause to disturb them. I agree with my learned brother, MARY UKAEGO PETER-ODILI, JSC, that there is no substance in this appeal. I hereby join my learned brother in dismissing the appeal in its entirety. The decision appealed is hereby affirmed. Appeal dismissed.

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

The Appellant with others now at large allegedly conspired on 16/11/2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State, while armed with offensive weapons, robbed one Idowu Adebayo the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira). It was also alleged that they separately robbed one Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) and one Joseph Bankole was robbed by them of a Mazda 626 car with registration No.

AJ 319 AKM and the sum of N50,000 (Fifty Thousand Naira). They were arraigned for conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, LFN, and armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, LFN. Count 1 was on conspiracy while the other four (4) counts were on armed robbery. On a no case submission, count 4 was struck out while the Appellant entered his defence on counts 1, 2, 3 and 5. Four (4) witnesses gave evidence for the prosecution while the Appellant testified alone.

The trial Court convicted the Appellant on counts 1, 2, 3 and 5, and sentenced him to death by hanging.

Dissatisfied, the Appellant appealed to the lower Court but lost, hence this appeal. From the diverging issues formulated by both the Appellant and Respondent’s Counsel, this issue shall cover all the issues formulated: Whether the Appellant has shown special grounds to warrant this Court to set aside the concurrent decisions based on findings of facts of both the appellate and trial Courts.

PW1 and PW2 were eye witnesses to the commission of the armed robbery which the Appellant was charged with, and they gave cogent and uncontroverted evidence that proved the ingredients of armed robbery against the Appellant. His confessional statement, Exhibits B, C-C2, though retracted, confirmed this.

​Although the eye witness account is not conclusive to convict on armed robbery where other doubts exist, there is no law which says a conviction for the offence of armed robbery cannot be sustained solely on the evidence of a victim’s eye witness to the commission of the crime. Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence. See Per RHODES-VIVOUR, JSC in UDO V. STATE (2018) LPELR-43707(SC) (P.22, PARAS. A-B).

Although the Appellant has contended the reliance of the Court to convict him on his retracted confessional statement, where an accused person resiles/retracts from a confessional statement made by him, his conviction upon the said statement will depend on the following conditions: 1. Whether there is anything outside the confession to show that the statement is true. 2. Whether it is corroborated. 3. Whether the statement made in it of fact are true as far as they can be tested. 4. Whether the accused had the opportunity to commit the offence. 5.

Whether it is consistent with other facts which have been ascertained and have been proved. See Per OKORO, JSC in STATE V. SA’IDU (2019) LPELR-47397(SC) (PP. 11-17, PARAS. C-D).

​Although the lower Court did not only base the conviction of the Appellant on the retracted confessional statement, the above conditions were considered to ascertain the voluntariness of the confessional statement. Again, being a concurrent decision by the 2 Courts below, and having not spotted any miscarriage of justice or perverseness in the decision, I shall affirm the judgment of the lower Court. This appeal therefore fails and is dismissed.

Judgment

AMINA ADAMU AUGIE, J.S.C.(Delivering the Leading Judgment): The criminal matter that led to this appeal started at the Chief Magistrate Court, Apiapim-Obubra in Cross River State, and it has to do with the breaking of an “ancestral pot’, used by Ovanum People during traditional burial ceremonies.

The ten Respondents, as the Accused Persons therein, were alleged to have: (1) Conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace. (2) Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community Graveyard without authority; and (3) Willfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa.

According to the four Witnesses that testified for the Prosecution against them, PW1 [Chief Raymond Ewena Okpa], who is the Village Head of Ovanum, was informed about the death of the son of the fourth Respondent (now deceased), and he delegated PW2 [John Egede] and PW3 [Abeng Okera] to carry the said ancestral pot and mark the burial spot for the internment of the deceased child.

​However, PW2 and PW3 were stoned and chased by the Respondents, who had gathered at the fourth Respondent’s house for the burial of his son, and in the process of being attacked with stones, the ancestral pot got broken.

The ten Respondents, who testified themselves, attributed their arrest and prosecution to a chieftaincy dispute between fourth Respondent and PW1. In his judgment delivered on 5/12/2005, the Chief Magistrate, held as follows: The evidence of the Prosecution Witnesses, especially that of PW2, pointed unequivocally to the fact that on 28/2/2004, the Accused persons and their cohorts created a scene at the spot when PW2 and PW3 approached the 4th Accused Person now deceased to show them where to mark the grave for the burial of the 4th Accused Person’s brother by name- Oyama Onyum.

There is copious evidence that the Accused Persons and their cohorts threw stones at PW2 and PW3 which led to damage or destruction of the traditional pot in Exhibit M. From the evidence so far led, I cannot hesitate to infer that the traditional pot was damaged as a result of the conduct of the Accused persons. No better inference can be drawn than this. After all, the offence of conspiracy has a hub. It does not mean that all the Accused persons must be present at the same time and spot. A person can be anywhere and still match conspiracy.

To all intents and purposes, the 1st Accused Person’s house is the hub of this conspiracy. It is not true, as submitted by Counsel that PW2 and PW3 did not lead evidence as to the conspiracy. The evidence of PW2 and PW3 revealed without any equivocation that Accused persons and their cohorts conspired and threw stones at them thereby damaging the traditional pot and chasing them away.

None of these Prosecution Witnesses changed his stand under cross-examination and I am bound to believe them. – I hold that the Prosecution has proved its case in all the Counts beyond reasonable doubt in accordance with Section 138(1) Evidence Act Cap 112. I find all the Accused Persons Nos 1 to 10 guilty as charged and I convict all of them as charged.

They were all “cautioned and discharged” on Counts I and II and on Count III, the ten of them were each sentenced – “to 2 years I.H.L. or pay N2000 as fine”. The Chief Magistrate also ordered that “all the convicts are bound over to keep peace for 7 years without any Surety”.

They then appealed to the High Court, Calabar, in its appellate jurisdiction, wherein they complained inter alia that the Chief Magistrate erred in convicting them for an offence under Section 249(d) of the Criminal Code, when the place where the alleged offence took place was not proved to be a public place, but the private residence of the fourth Accused.

Section 249(d) of the Criminal Code – Laws of Cross Rivers State, provides – Every person who, in any public place, constitutes himself in a manner likely to cause breach of the peace shall be deemed to be idle and disorderly persons, and shall be guilty of a simple offence and shall be liable to imprisonment for one month.

The High Court agreed, and it held as follows in its judgment of 24/6/2009 – The main Count here is Count 2 – Even the Respondent reproduced the testimony of PW1 thus – “We do not have any graveyard, and whenever any death occurs that place would be marked graveyard”. As if that is not enough PW3 said – “When I approached the Chief to give me a burying place, the Chief gave me somebody, who accompanied me to the compound of the 4th Accused.

I now accompanied the 4th Accused Person to show me where to measure the grave”. l, therefore, agree with Appellants’ Counsel that indeed there is no place in existence called Ovanum Community graveyard, and if there is no such graveyard, could there, therefore, be any trespass into same and causing a breach of peace thereat? In my view, the answer is in the negative, as you cannot put something on nothing and expect it to stand – This means that there is no way Counts one and two could have been proved in the lower Court for that Court to have convicted the Appellants therein.

Their convictions on those two Counts cannot stand and is accordingly set aside. The reason being that the finding of fact by the lower Court is perverse in consequence of which a Court of Appeal like this one, can interfere.

It also set aside their conviction on Count III, and then concluded as follows: In the final analysis, it is ordered as follows: 1. The judgment/decision of the learned Chief Magistrate Grade II, Apostle B.E. Mbang, Esq., dated 5/12/2005 is, hereby set aside. 2. Appellants are discharged and acquitted on all the three Counts Charge upon which they were convicted. 3. The binding over Order for 7 years upon the Appellants is set aside.

This time around, it was the Appellant, who appealed to the Court of Appeal, which dismissed his appeal, and affirmed the said judgment of the High Court. Further aggrieved, he appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, which are being challenged by the Respondents, and the Grounds of Objection set out in their Notice of Preliminary Objection are – 1. All the four Grounds of Appeal in the Notice of Appeal raised, variously, issues of fact and of mixed law and fact and are, therefore, incompetent. 2.

No solitary Ground of Appeal, on grounds of law alone in the said Notice exists, capable of salvaging the Appellant’s said above incompetent Notice of Appeal, which is comprised of incompetent grounds. 3. No leave of this Court, was ever, or could be obtained, to salvage the incompetent Grounds of Appeal therein.

The four Grounds of Appeal, which are being challenged, complain as follows: Ground One: The lower Court misdirected itself when it held as follows: “PW2 and PW3 alluded to the presence of certain boys at the scene, who were digging the grave while the Respondents looked on. PW3 was particularly clear on this. This was the Witness with poor sight. An interesting part of their testimonies was that they ran immediately stones were being thrown at them with their assailants in pursuit, how could they name those stoning them with their backs turned, is some mystery.

They did not report any injury so equally mysterious is the fact that stones thrown at them did not injure them but only broke the small pot held by PW2″. Ground Two: The lower Court misdirected itself when it held as follows: “While PW1, who was not at the scene, was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons, who they described as boys, as different from the Respondents, who were called Chiefs, as the likely perpetrators”.

Ground Three: The lower Court misdirected itself when it held as follows: “Having come to the above conclusions on the main Counts, the first Count of Conspiracy is fatally flawed and cannot in the circumstances be sustained as well”. Ground Four: The judgment of the Court below is unwarranted and cannot be supported having regard to the evidence adduced.

To cut to the chase, the Appellant filed a Reply Brief, wherein he conceded that Grounds 1, 2 and 4 are grounds of fact or mixed law and fact. But he contends that the same cannot be said about Ground 3 of the said Grounds of Appeal. In effect, there is no contention as to the fact that the said Grounds 1, 2 & 4 of the Grounds of Appeal are incompetent, and they are accordingly struck out.

Is Ground 3 also incompetent? The Respondents say that it is since it involves evaluation of evidence to meet legal requirement to prove conspiracy; and at the very best, it is a ground of mixed law and fact because a ground of appeal that questions evaluation of facts before the application of the law, is a ground of mixed law and facts – State V. Omoyele (2016) LPELR-40842 (SC).

​They further argued that the present alterations and amendments of the Constitution have deleted Subsection (3) of its Section 233 that authorized an Appellant to seek and obtain leave of the Court of Appeal or leave of this Court to appeal against a ground of appeal based on fact or mixed law and fact; and citing Shittu V.

PAN Ltd. (2018) 15 NWLR (Pt. 1642) 95 that the Constitution has denied the Appellant the right to remedy his problems and seek for leave from this Court, where the grounds of appeal are based on fact or mixed law and fact, since all such appeals, like this appeal, end at the Court of Appeal.

I must say here that the Issue of whether Section 233(3) is deleted from the amended Constitution has been settled by this Court in a ruling delivered on 5/2/2021 in Amadi V. Wopara – SC.837/2018, wherein I explained that – “The observation made by Rhodes-Vivour, JSC, in Shittu V. PAN Ltd. (supra) is, no doubt, an obiter dictum. It was not part of the arguments before the Court. What is more, he made the observation after he upheld the Objection raised by the Respondent and struck out the grounds of appeal because “they are caught by Section 233 (3) of the Constitution”.

In effect, his comment made in passing is not binding on this Court- see Afro-Continental Nig. Ltd. V. Ayantuyi (1995) 9 NWLR (Pt. 420) 411 SC.”

​As to the merits of the Objection, the Appellant submitted in his Reply Brief that Ground 3 questions the lower Court’s understanding of the law on conspiracy vis-a-vis the cogent evidence he adduced at the trial; that it queries the findings of the lower Court to the effect that it improperly misunderstood the law as it concerns conspiracy such that a proper understanding would have helped it to better appreciate the evidence before it enough to make proper inferences; and that it is a ground of law based on the decisions of this Court, which he cited.

For instance, he referred to the guidelines to properly determine whether grounds of appeal are one of law, or of fact or of mixed law and fact, and quoted what I said in Obayuwana V. Adun (2020) 13 NWLR (Pt 1741) 371 as follows: “Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter.”

He submitted that this is a restatement of the landmark judgment of this Court in Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484, wherein Eso, JSC, said: “It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law.”

He also cited Ekunola V. C.B.N (2013) 15 NWLR (Pt. 1377) 224/260, Uwak V. Ekpemyong (2019) 7 NWLR (Pt. 1670) 67, Daniel V. INEC (2015) 9 NWLR (Pt. 1463) 113, N.I.W.A V. S.P.D.C.N. Ltd. (2020) 16 NWLR (Pt. 1749) 160, and submitted that since a sole ground of law can sustain a Notice of Appeal, it means that the Notice of Preliminary Objection filed by the Respondents is incompetent as the only procedurally valid means to challenge his Notice of Appeal (given the circumstance) is by way of an application seeking to strike out the alleged incompetent grounds.

He, therefore, urged this Court to so hold.

​The question is whether Ground 3 of the Grounds of Appeal alleges an error in law or fact, therefore, the Ground itself and its Particulars of Error must be construed together because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the Particulars bears out the category assigned -see Garuba V. Omokhodion(2011) 6-7 SC (Pt. V) 89, Metal Const. (W. A.) Ltd. V. D. A. Migliore (1990) 1 NWLR (PE 126) 299, Globe Fishing V. Coker (1990) 7 NWLR (Pt. 162) 265 and Nyako V.

Adamawa State House of Assembly (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, said: “The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children” or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is.

To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the Parties.”

​The Particulars of Error of the said Ground 3 (set out earlier) are as follows: i. The Respondents were charged for breach of peace owing to their malicious conducts. The Count is hereby reproduced as follows – “Conspiracy to effect unlawful purpose to malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code CAP 31, Volume II Laws of the Cross River State of Nigeria, 1983”. ii. Conspiracy cannot be ascertained by mathematical precision but by drawing necessary inferences or deductions from certain criminal acts of the parties concerned. iii.

The Appellant, through its PW2, already led cogent evidence to show that the Respondents willfully damaged the Village pot when the Respondents hurled stones at him. iv. The lower Court failed to sustain the Count on conspiracy by drawing the proper inference from the testimony of PW2 despite the expression of a criminal design and intent by the Respondents, who hurled stones at PW2, thereby damaging the village pot in the custody of PW2.

​It is also settled that where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. So, failure to obtain leave renders the appeal incompetent, and it will be thrown out – see Garuba V. Omokhodion (supra).

The question, therefore, is what is the distinction between the questions of law and questions of fact? In answering same, Obaseki, JSC, made the difference clear in Metal Const. (W.A.) Ltd. V. D. A. Migliore & Ors (supra) as follows: “Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation.

An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law.

A decision of a trial Judge is normally a mixed finding.” That is the distinction – any matter to be decided on evidence and inference therefrom is a matter of fact, while an appeal on point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit a particular decision or disposal of the case before the Court.

The Respondents herein were charged with the offence of conspiracy, and the bedrock of the offence is the agreement to do something unlawful – Ikemson V. State (1989) 3 NWLR (Pt. 110) 455, Erim V. State (1994) 5 NWLR (Pt. 346) 522. The conspirators must have agreed to do something unlawful to justify a conviction for conspiracy.

The word “unlawful’ means “not authorized by law; illegal; criminally punishable”- see Black’s Law Dictionary, 9th Edition.

​In this case, in setting aside the Respondents’ conviction for conspiracy by the trial Chief Magistrate Court, the High Court had first of all considered the allegation in Count 2 that they “conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority” and held that they could not have been guilty of conspiracy, because there is “no place in existence called Ovanum Community graveyard”.

In affirming the above decision of the High Court, the Court of Appeal held that: “From the evidence adduced by the Appellant – the count of conspiracy was based on the same facts as those of the two substantiative offences, and where a charge of conspiracy is based on the same facts as the substantive charge, the Court is enjoined to deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. See Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 274 applying R V Dawson (1960) 1 AER 558 and Njovens V. State (1973) 5 SC 17 at 68.

The Count was predicated on the existence of a public place as envisaged by Section 249(d) of the Criminal Code, as such it is palpably evident that the existence of the said Ovanum Community graveyard is fundamental to the success of the allegation. The Witnesses at trial on both sides of the divide were unanimous that there was no such place in existence.

In other words, the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist – Having come to the above conclusions on the main Counts, the first Count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”

The complaint in Ground 3 of the Grounds of Appeal is that the Court of Appeal erred when it held that based on its conclusions on the main Counts II and III, Count I for conspiracy is fatally flawed, and so, it cannot be sustained as well.

However, it appears from the Particulars of Error to the said Ground that the Particulars are not in consonance with the complaint in the Ground itself. The decision of the Court of Appeal is that the Count of conspiracy was based on the same facts as the main Counts and having concluded that the Appellant failed to prove the existence of Ovanum Community graveyard – a public place; a key element in Count II, then the Count on conspiracy cannot be sustained.

Nevertheless, the position of the law as it stands today is that once the error complained of is identified and properly oriented in the Ground, the inelegance of its Particulars would not invalidate the grounds from which they follow -see Best (Nig.) Ltd. V. B.H. (Nig). Ltd. ​(2011) 5 NWLR (Pt. 1239) 95 and Omisore V.

Aregbesola (2015) 15 NWLR (Pt. 1482) 205, wherein Nweze, JSC, stated: “It is not every failure to attend to grounds of appeal with the fastidious details prescribed by Rules of this Court that would render such a ground incompetent This is particularly so where sufficient particulars can be gleaned from the grounds of appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently, since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow – This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 – Indeed, this Court, recently stamped its infallible authority on this current posture.

Abe v. Unilorin (2013) LPELR-206443.”

​The point I am trying to make is that the issue of whether Ground 3 is a ground of mixed law and fact or a ground of law depends on whether this Court must evaluate the evidence to determine whether the lower Courts are right that the Appellant failed to prove that the said incident took place in a public place, which would make it a ground of mixed law and fact.

However, if the question is whether the Court of Appeal is right that Respondents cannot be convicted for conspiracy since a key element to sustain the main was not proved, then Ground 3 is a ground of law because evaluation of evidence is out of it.

The alleged breach of peace that led to this Appeal occurred in 2004 – 18 years ago, and I believe it is in the interest of justice to deal with this appeal and lay the matter to rest once and for all. As it is, it is not necessary to evaluate evidence in addressing the complaint in the Ground itself; it is on that premise that I hold that the said Ground 3 of the Grounds of Appeal is a ground of law

Besides, the Issue distilled by the Appellant from the said Ground 3 is – “whether the lower Court was correct in its finding when it failed to sustain the Count of conspiracy against the Respondents? Thus, the Appellant is right that Ground 3 of the Ground of Appeal is a ground of law, and as he also submitted, it is trite law that a sole ground of law is sufficient to sustain a Notice of Appeal -see Ekunola V. CBN (supra).

But I must add that the issue for determination in the appeal must be distilled from the said competent ground of appeal, and not from the other grounds of appeal, which are incompetent, and struck out. As this Court, per Ogunbiyi, JSC, put it in Njemanze V. Njemanze (2013) 8 NWLR (Pt. 1356) 376 – “no competent issue can arise from an incompetent ground of appeal”. See also Akpan V. Bob & Ors (2010) LPELR-376(SC).

In this case, the Appellant formulated two Issues for Determination and Issue [i], which questions whether the evidence led by the Prosecution proved the allegation against them beyond reasonable doubt, is distilled from the other Grounds of Appeal in his Notice of Appeal, which have been struck out earlier for being incompetent. The said Issue is also incompetent, and it is struck out.

​Issue [ii] is distilled from the said Ground 3 of the Grounds of Appeal, which has been adjudged competent, and the Issue is, therefore, competent, and I will adopt same in dealing with this appeal. Thus, it goes without saying that the Preliminary Objection raised by the Respondents “to the hearing and determination of this appeal” must be overruled, and it is, hereby, overruled.

So, this appeal turns on the narrow issue of whether the Court of Appeal is right that in view of its findings on the substantive offences, the Respondents could not be guilty of the offence of conspiracy. The Appellant, who focused his arguments on other areas, did not have anything to say about this Issue.

​The Respondents reechoed the Court of Appeal’s conclusion that since it was alleged in Count 2 that they caused breach of peace by trespassing into Ovanum Community graveyard without lawful authority, the said Count cannot be proved except there is proof that the event occurred in a public place, thus, the Ovanum Community graveyard, as a public place, is a condition precedent to establishing same; and that the Witnesses were unanimous that there was no such place in existence, therefore, the public place, Ovanum Community graveyard, where they were supposed to have trespassed, did not exist at all.

Now, it is trite law that conspiracy to commit an offence is a separate and distinct offence by itself and it is independent of the offence of the actual commission of the offence to which the said conspiracy relates – see Atano V. A.G., Bendel (1988) 2 NWLR (Pt. 75) 201, wherein Nnamani, JSC, explained: “It is obvious that the offence of conspiracy to commit an offence will necessarily precede in point of time the offence of the actual commission of the offence to which the conspiracy relates.

So, it is possible that one may be guilty of conspiracy to commit an offence and yet not be guilty of the actual commission of the offence. For it is possible that one might change one’s mind before the offence was committed but after the conspiracy might have been hatched. And consequently, that one might not have gone along with the other conspirators in the commission of the offence itself. In other words, that one might have dropped out of the whole scheme after the conspiracy had been entered into.”

​In other words, a conviction for the offence of conspiracy does not fail merely because the conviction on the substantive charge had failed – see Bouwer V. State (2016) 4 NWLR (Pt. 1502) 295, Balogun V. A.G., Ogun State (2002) 6 NWLR (Pt. 763) 512, Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445.

Even so, the Courts have deprecated the practice of including a Count of conspiracy to commit an offence as well as a Count for actually committing the offence itself, where the evidence to support the two Counts are the same. In arriving at its decision in this case, the Court of Appeal relied on its decision in Amachree V. Nigerian Army (2003) 3 NWLR (Pt. 807) 256/274, wherein applying R v. Dawson (1960) 1 AER 558, the Court held as follows – “In Dawson’s case, there were fourteen substantive Counts and one Count for conspiracy – The Court frowned at the charge of conspiracy.

The principle that emerged from that case is whether conspiracy charge should also be charged where there are substantive charges in relation to the same conduct- This established principle in Dawson’s case [is] that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the substantive charges first and then proceed to see how far the conspiracy Count should be there at all and whether it is made out. The answer to the question decides the fate of the charge of conspiracy.” It also relied on Njovens V.

State (1973) 5 SC 17, wherein this Court held that: “The Accused Persons are charged with various Counts of specific offences comprising of acts or omissions, which would constitute for each of them, the actus reus to associate him with the conspiracy – There is only one set of evidence, which is being used to prove the conspiracy as well as the specific charges. In R v.

Dawson (1960) 1 WLR 163 the Court of Criminal Appeal deprecated this practice, which carries no legal obloquy whatsoever, but fails to stand the test of strategy – The learned trial Judge was right to conclude that all the Accused took part in abetting the offence of robbery.” Clearly, the issue at stake in this appeal has nothing to do with the fact that the conviction for the substantive offences failed; it has to do with the fact that the Prosecution adduced the same evidence to support the allegations against the Respondents in Counts 2 & 3. which are substantive offences, and the offence of conspiracy in Count 1.

That being so, the Court of Appeal is certainly right. In a charge of conspiracy to commit an offence, even though a separate offence from the substantive offence, where the facts are intricately interwoven, Courts are enjoined to deal with the substantive offence first. This is because, in such circumstances, the conviction for conspiracy will fail if the conviction for the substantive offence is set aside – see Okiemute V. State (2016) 15 NWLR (Pt. 1535) 297 SC, Oladejo V. State (2018) 11 NWLR (Pt 1630) 238/244 SC.

In this case, in Count 1 of the Charge, the Respondents were alleged to have conspired “to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace”, and in Count 2 they were alleged to have- Conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum Community graveyard without authority thereby committed an offence punishable under Section 249(d) of the Criminal Code Cap 31 Vol.

II LCRSN 1983. ​Section 249 (d) of the Criminal Code specifically states that every person, who, “in any public place, constitutes himself in a manner likely to cause breach of the peace – shall be guilty of a simple offence”. In other words, to be guilty of the said offence under Section 249(d), the Respondents must have conducted themselves in a manner likely to cause breach of the peace in a public place, and the public place, as alleged in Count 2, is Ovanum Community graveyard.

The Prosecution adduced evidence in support of both Counts, therefore, to ground a conviction for conspiracy, the allegation in Count 2 must be proved. It is an established fact that the Ovanum Community graveyard does not exist, which means that the Prosecution had failed to prove a fundamental element that cuts across the substantive offence itself and the offence of conspiracy.

So, the Court of Appeal made the right call – it held that the public place, Ovanum Community graveyard, where the Respondents were supposed to have trespassed did not exist thus, the Count for conspiracy “is fatally flawed and cannot in the circumstances be sustained as well”, and I completely agree.

In the circumstances, this appeal lacks merit, and it is hereby dismissed.

​MARY

UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amina Adamu Augie, JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal to the Supreme Court arises from the decision of the Court of Appeal Calabar Division or lower Court or Court below, Coram: Nwosu-Iheme, Adah and Oyewole JJCA from a decision on 19th October, 2017 in which the Court below dismissed the appeal from the decision of the High Court of Cross Rivers State sitting in Calabar of 24th June 2009 per S.M. Anjor J. against the decision of the High Court which had allowed the appeal of the Appellants therein against their conviction by the Chief Magistrate Court, Apiapum Obubra.

The Chief Magistrate had on 5/12/2005 convicted the Appellants at the Court below on three counts of conspiracy to effect an unlawful purpose, conduct likely to cause a breach of the peace and wilful and unlawful damage.

BACKGROUND FACTS One Chief Raymond Okpa (PW1) in his capacity as the Chief of Ovanum Ntem Village was informed of the demise of the 4th accused (who also died in the course of trial) person’s son and was consulted to mark the spot or gravespot for the burial of the deceased 4th accused person’s son. Subsequently, PW1 designated PW2 (John Egede) and PW3 (Abeng Okera) to carry the Ovanum customary sacred pot to mark the graveyard for the committal of the deceased child to mother earth.

However, due to the ‘clan head’ dispute between PW1 and the 1st Respondent herein (Chief Fidelis Egor), PW2 and PW3 were harassed, stoned and chased away by the Respondents and the Ovanum sacred pot got broken in the process.

The Respondents were charged before the Chief Magistrate Court, Apiapum Obubra Division on the 1st June 2005 in charge No: MB/76C/2004 on three counts which are stated below: COUNT I That all the accused persons on the 28th day of February 2004 at Ovanum Village, Obubra Local Government Area in Obubra Magistrate District conspired among themselves to effect an unlawful purpose to wit malicious damage/conduct likely to cause breach of peace and thereby committed an offence punishable under Section 518 (6) Of the Criminal Code CAP 31, Volume II, Laws of Cross River State of Nigeria, 1983.

COUNT II That all the accused persons on the same date and place in the aforesaid Magistrate District conducted themselves in a manner likely to cause breach of peace by trespassing into Ovanum community grave yard authority thereby committed an offence punishable under Section 249 (d) of the Criminal code CAP 31 Volume II, Laws of Cross River State of Nigeria 1983.

COUNT III That the accused person on the date and place in the aforesaid magistrate District wilfully and unlawfully damaged one pot valued at N500.00 property of Chief Raymond Ewena Okpa and thereby committed an offence punishable under Section 45 of the Criminal Code, volume Laws of Cross-River State of Nigeria 1983.

The Respondents pleaded not guilty. The Appellant called four witnesses namely: PW1 – Chief Raymond E. Okpa PW2 – John Egede PW3 – Abeng Okera PW4- I.P.O.

The Respondents defended themselves in person without inviting anybody to testify in support of their defence. The Magistrate Court in its judgment sustained the counts against the Respondents and convicted them accordingly.

Consequently, the Respondents registered their dissatisfaction with the judgment of the Magistrate Court by lodging their appeal to the High Court of Cross River State. The High Court in its judgment set aside the decision of the trial Magistrate Court and thereafter discharged and acquitted the Respondents of all the offences charged. On further appeal, to the Court of Appeal, Calabar Division (lower Court), the lower Court in its unanimous decision delivered on 17th October 2017 affirmed the decision of the High Court. The Appellant is dissatisfied, hence this instant appeal.

On the 13th January, 2022 date of hearing, learned counsel for the Appellant, Aderemi Oguntoye, Esq. adopted the brief of argument filed on 31/12/2018 and deemed filed on 13/1/2022 and a Reply brief filed on 5/2/2021 and deemed filed on 13/1/2022. He distilled two issues for determination as follows:- 1. Whether the evidence of the Appellant (prosecution) proved beyond all reasonable doubt, the allegation that the Respondents wilfully and unlawfully damaged the Ovanum village pot. 2.

Whether the lower Court was correct in its findings when it failed to sustain the count of conspiracy against the Respondents.

Learned counsel for the Respondents, Ubong Esop Akpan Esq. adopted the brief of argument filed on 29/7/2019 and deemed filed on 13/1/2022 in which they formulated a single issue for determination, viz: Whether the Court of Appeal rightly confirmed the discharge and acquitted by the High Court Calabar of the 10 Respondents in this appeal.

The Respondents had raised and argued a Preliminary Objection contesting the competence of the appeal in the brief of argument. It needs no saying that the Objection would be first tackled as the jurisdiction of the Court is questioned alongside the competence of the appeal.

PRELIMINARY OBJECTION The Respondent/Objector contended that the four grounds of appeal are based on fact or at best, mixed law and fact for which the need for leave to appeal is mandatory and that leave was neither applied for nor obtained, contrary to Section 233 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The implication being the incompetence of those grounds and the appeal itself, rendering the Court bereft of jurisdiction.

He cited Out v African Continental Bank (2008) 1 SC (pt.212) 652; Fasuyi v PDP (2017) LPELR-43462 (SC) pp.10-12 (CA).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The learned counsel for the Appellant submitted that it is not correct that all the grounds of appeal are on fact or mixed law and fact as ground 3 is clearly on pure law. Therefore if the other grounds fail, ground 3 alone can sustain the appeal. He cited Ogbechie v Onochie (1986) 2 NWLR (pt.23) 484 at 491; Ekunola v C.B.N (2013)15 NWLR (pt. 1377) 224 at 260 etc.

The Respondents/objectors had argued that all the grounds of appeal and particulars of error cannot be relied upon by this Court to sustain the appeal as the grounds are based on fact or mixed law and fact and since no leave was obtained the Notice of Appeal is incompetent.

That assertion of the objectors is too sweeping and a generalisation not borne out of what is before the Court in the light of ground 3 of the Appellant’s Notice of Appeal. I shall quote the said Ground 3 for clarity, thus:- GROUND 3 The lower Court misdirected itself when it held as follows: “Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.”

​In Obayuwana v. Adun (2020) 13 NWLR (Pt.1741) 371 at p.390, the Supreme Court per Augie, J.S.C analysing the guidelines to properly determine whether grounds of appeal is one of law, or of fact or of mixed law and fact held inter alia: “… where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter…” The aforementioned reasoning is a restatement of the landmark decision of the Supreme Court per Eso, J.S.C in Ogbechie v.

Onochie (1986) 2 NWLR (Pt. 23) 484 at p.491, where the Court opined as follows: “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal misunderstanding by the lower Tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law.”

​Grounds 3 as outlined above is a ground that questions the lower Court’s understanding of the law on conspiracy vis-a-vis the cogent evidence adduced by the Appellants during trial. It queries the findings of the lower Court to the effect that it improperly misunderstood the law as it concerns conspiracy such that a proper understanding would have helped the lower Court better appreciate the evidence before it enough to make proper inferences. This is a ground of law based on the aforementioned Supreme Court authorities.

I agree with learned counsel for the Appellant that flowing from the above, it is trite law that a sole ground of law can sustain a notice of appeal in an appeal from the Court of Appeal to the Supreme Court. This was the holding of the Supreme Court per Chukwuma Eneh, J.S.C in Ekunola v. C.B.N (2013) 15 NWLR (pt.1377) 224 at p.260, wherein the Court stated as follows: “Although it is trite that a single ground of law is sufficient to sustain a notice of appeal in an appeal; also, see: Niger Construction Ltd. V.

Okugbeni (1987) 2 NSCC (Vol.18) 1258, (1987) 4 NWLR (pt.67)787 per Nnaemeka-Agu, JSC.” This position of the law has been validated by this Court in countless authorities. See the following cases: Uwak v. Ekpemyong (2019) 7 NWLR (Pt.1670) 67; Daniel v. INEC (2015) 9 NWLR (pt.1463) 113, N.I.W.A v. S.P.D.C.N Ltd (2020) 16 NWLR (Pt.1749) 160.

Given the fact that a sole ground of law can sustain a notice of appeal, it means that the Notice of Preliminary Objection filed by the Respondents is incompetent as the only procedurally valid means to challenge the Appellant’s notice of appeal (given the circumstance) is by way of an application seeking to strike out the other alleged incompetent grounds.

The implication of what I am trying to say is that, assuming the other grounds of appeal are incompetent, the appeal can be grounded on the surviving sole ground 3 and the appeal valid. On that note, the Preliminary Objection fails and is dismissed.

MAIN APPEAL For ease of reference, I shall make use of the issues drafted by the appellant. ISSUE 1 & 2 1. Whether the evidence of the Appellant (prosecution) proved beyond all reasonable doubt, the allegation that the Respondents wilfully and unlawfully damaged the Ovanum village pot 2. Whether the lower Court was correct in its finding when it failed to sustain the count of conspiracy against the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned counsel for the Appellant contended that all the ingredients of the offences charged were proved by the prosecution beyond reasonable doubt and the guilt of the Respondents established. That the circumstantial evidence in this case is overwhelming and leads to no other conclusion than the guilt of the Respondents. He cited Nweke Onah v The State (1985) 2 NSCC 1361; Sahalatu Shazali v The State (1988) 12 SC (pt.11) 58 etc.

It was further submitted for the Appellant that it had led cogent and circumstantial evidence pointing to the fact the Respondents conspired to damage the Ovanum village pot. He cited Nwankwoala v State 92006) 14 NWLR (pt.1000) 663 at 682-683.

Learned counsel for the Respondents contended that the evidence proffered by the Appellant in support of the count of conspiracy was based on same fact as those of the two substantive offences. That where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deal with the substantive charge and then see if the charge of conspiracy is desirable and could be sustained. He cited Ikemson v State (1989)3 NWLR (pt.110)455; Amachree v Nigerian Army (2003) 3 NWLR (pt.807) 256 at 274 etc.

That the Court of Appeal found as a fact that the two eye witnesses located the scene of the said grave digging exercise as the compound of the late Asiga Agara and not any Ovanum Community graveyard and the count in the face of the Appellant’s failure to prove the “public place ingredient” of the offence of conduct likely to cause a; breach of the peace, found that count 2 was not proved.

Learned counsel for the Respondents submitted that the prosecution failed to discharge the burden of proof laid upon it over the counts charged and these findings the Court below found were not perverse and so the appeal should be dismissed.

In resolving the issues above posed, it is to be restated that by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, the ten (10) accused persons now Respondents are presumed innocent. To prove otherwise, the prosecution now Appellant must establish the three criminal allegations by proving each of the essential ingredients of each of the three counts beyond reasonable doubt, failing which the ten accused persons must be acquitted. The next question to be tackled is the meaning of proof beyond reasonable doubt.

In answer, proof beyond reasonable doubt means: 1. Proof that precludes every reasonable hypothesis except that which it supports, and 2. Proof, which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion. Therefore in every criminal trial such as the one under discourse, for evidence to legally support a conviction, that evidence must exclude beyond all reasonable doubt every other conceivable imaginable state of affairs other than that which points to the guilt of the accused.

For a fuller understanding, an accused must be acquitted of the crime charged if a conclusion of guilt is not the only reasonable interpretation to which the facts adduced against him are susceptible. See Ubani v State (2003) 4 NWLR (pt.809) 51 at 64.

​To expatiate, proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that will amount to reasonable doubt need not reach certainty but should achieve a high degree of probability. Once the ingredients of the particular offence the accused is charged with are proved, then that constitutes proof beyond reasonable doubt. For the accused to be entitled to the benefit of doubt, that must be a genuine and reasonable one arising from some evidence before Court. See the case of Nwankwo v FRN (2003) 4 NWLR (pt.809) 1 at 35-36.

The charges against the ten respondents at the trial are thus:- 1. Conspiracy to effect unlawful purpose to wit malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983. 2. Conduct likely to cause breach of peace by trespassing into the Ovanum community graveyard without authority thereby committing an offence contrary to Section 249 (d) of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983. 3.

Wilfully and unlawfully damaging one pot valued N500.00 property of Ovanum Ntem entrusted to Chief Raymond Eweno Okpa ‘M’ and thereby committing an offence punishable under Section 451 of the Criminal Code Cap 31, Volume II Laws of Cross River State of Nigeria, 1983.

​The statutory provisions which the 10 accused persons allegedly violated, are set out below: 1. Conspiracy to effect unlawful purpose 518. Other conspiracies Any person who conspires with another to effect any of the following purposes- (6) to effect any unlawful purpose is guilt of a misdemeanour and is liable to imprisonment for two years.

249. Idle and disorderly persons. The following persons- (d) every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace, shall be deemed idle and disorderly persons and may be arrested without warrant, and is guilty of simple offence and liable to imprisonment for one month. 2. Malicious damage 451. Malicious injuries in general.

Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour and he is liable, if no other punishment is provided, to imprisonment for two years.

THE CHARGE OF CONSPIRACY The first charge alleges conspiracy to effect two unlawful acts. – Conspiracy is a working together of at least two minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful manner. – Since conspiracy involves minds and Judges not being mind readers, they have been compelled to deduce the working of the criminal mind from the physical acts demonstrated by the alleged perpetrators.

Niki Tobi, J.C.A (as he then was) stated thus on the subject: “legally conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way, In effect, the purpose of the meeting of the two or more minds is to commit an offence. While the law does not require the physical meeting of the minds in a predetermined or known place, as the offence of conspiracy could be committed by written communication, the prosecution must establish that the criminal minds really met somewhere to hatching crime”.

See Shodiya v State (1992) 3 NWLR (pt.230) 457 at 499. In order to prove conspiracy, – It is not necessary that there should be direct Communication between each conspirator and the other. – All that need to be established is that the criminal design is Common to all of them. – Proof of how they connected with or amongst themselves or that the connection was made, is not necessary.

This is because there could even be cases where one conspirator may be in one town and the other in another town and they may never have seen each other but there could be acts on both sides which could lead the Court to the inference, that these acts were aimed at achieving a common purpose. See: (1) ERIM VS STATE (1994)5 NWLR (PT.346) 522 AT 533 (2) IKEMSON VS STATE (1989) 3 NWLR (PT.110) 455.

At the trial, in the Magistrate Court, the evidence led by the Appellant in support of the count of conspiracy was based on same facts as those of the 2 substantive offences.

It is a known position of the law that where a charge of conspiracy is based on the same facts as the substantive charge, the authorities require that the Court deals with the substantive charge and then sees if the charge of conspiracy is desirable and could be sustained. See AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.807) 256 at 274 applying R VS. DAWSON (1960) 1 AER 558 and NJOVENS VS. STATE (1973) 5 SC 17 at 68.

​ESTABLISHING THE SUBSTANTIVE COUNTS OF THE TWO OFFENCES CHARGED. BREACH OF THE PEACE: Count 2 at trial alleged that the Respondents caused breach of the peace by trespassing into the Ovanum Community graveyard without lawful authority. This count cannot be proved except there is proof that the event occurred in a public place as contemplated by Section 249 (d) of the Criminal Code. Therefore proof that the Ovanum Community graveyard is a public place is a condition precedent to establishing count 2 as alleged or at all.

The witnesses at the trial on both sides of the divide were unanimous that there was no such place in existence.

There was conflicting evidence establishing that the venue of the incident was private premises.

Certain salient points need be highlighted thus:- – PW1 was not at the scene of the burial. – The remaining witnesses stated that the Respondents were in the compound of the late initial 4th accused, Asiga Agara. – The two eyewitnesses PW2 and PW3 Stated this much without equivocation. Lines 2-13 of page 10 of the record of appeal (testimony in chief of PW2) to wit; “I went with Obum Egba to the place Where they went to measure the graveyard. On reaching there the accused persons have started digging the grave.

Our Abong Okera and Chief Oybiafl the two persons and one Asiga Agara deceased’s father to tell where they should dig the grave in reply Abong Okera asked one Asiga Agara if he knew him very well i.e 4th accused. In reply, the 4th accused told them that it is over 20 years that he does not measure land for grave in his compound. Therefore they started throwing stones at us. The pot was holding got broken as a result of the stones thrown at us. It was the stones that broke the pot”.

Testimony in chief of PW3 (on lines 12-24 of pages 17 of the record) was that: “On reaching at the 4th accused person’s compound we met a group of boys digging the grave and the chief was standing and watching them. I now asked the father to show me where to dig the grave, but he relied to me that the he does not know where to dig this grave. In the process of asking the man to show me where to dig the grave and our demand was turned down. The boys started throwing stones on us and in the process the pot with which wine was put was broken.

The chiefs were in the compound during the pandemonium caused by the accused persons and their cohorts. went back to PW1 and complained that the exercise failed as the 4th accused person chased us out of his compound with a group of people”.

The Court of Appeal Calabar found as a fact that the two eyewitnesses located the scene of the said grave digging exercise as the compound of the late Asiga and not any Ovanum Community graveyard.

The Court in the face of the Appellant/Complaint’s failure to prove the “public place ingredient” of the offence of conduct likely to cause a breach of the peace, found that count 2 was not proved.

The specific finding was not appealed against by the Appellant. Count 3 at trial alleged malicious damage. The Appellant as a prosecutor was bound to prove that the Respondents broke the said sacred pot. Unfortunately for the prosecutor, PW1 was not at the scene of crime and could only give hearsay evidence which is totally inadmissible.

​Furthermore, the Court of Appeal could not help but take note of the facts that: 1. PW2 and PW3 alluded to the presence of certain boys (not related to Respondents) who were digging the grave while the Respondents looked on; 2. PW3 was particularly clear on boys, being their assailants; 3. This was the same witness with poor sight; 4. Both witnesses testified that they ran immediately stones were being thrown at them with their assailants in pursuit, how they could name those stoning them with their backs turned is some mystery; 5. They did not report any injury; 6.

So equally mysterious is the fact that the stones thrown at them did not injure them but only broke the small pot held by PW2; 7. While PW1 who was not at the scene was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons who they described as boys as different from the Respondents who were called Chiefs, as the likely perpetrators.

These are devastating findings and none of the grounds of appeal has been able to dent the legal process by which these findings were made, nor has the soundness of reasoning in the above 7 findings, been impeached.

Where an accused raises alibi, the following principles apply: – Where the testimony of witnesses located an accused person committing crime at the material time, his defence of alibi will fail. See BALOGUN v A.G OGUN STATE (2002) 6 NWLR (PT.763) 512. – Where the defence of alibi is raised for the first time in the course of his defence in the witness box, the learned trial Judge will be in order to treat such an alibi as an unserious after-thought to be appropriately discountenanced. See EMMANUEL EKE v THE STATE (2011) 45 NSCQR 652.

The Court below made the following findings:- 1. In the case at hand however, neither PW4, the police investigator, nor the trial Magistrate made any attempt to examine the alibi of the Respondents. The entire scenario leaves so much to be desired. Doubts are evident in the evidence presented. These doubts must work to the benefit of the accused persons who are the Respondents in this appeal. See UBANI v STATE (supra). 2. Both substantive counts were not established, and 3.

Having failed to prove guilt in the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well. This is because the substantive of any conspiracy offence are non-existent.

​The Court of Appeal found that: the decision of the High Court was not perverse, to require appellate intervention because: (1) Where the findings of fact made by a trial Judge are not supported by credible evidence, or there is improper evaluation of evidence, the appeal Court is in as much as good position to deal with the facts and findings as the trial Court. (2) The finding of Court will be perverse where: a. It is speculative and not based on any evidence or b. The Court took into account matters which it ought not to have taken into account or c. The Court shut its eye to the obvious.

The prosecution (Appellant) thus clearly did not prove or establish the three counts laid against the 10 Respondents.

The follow up conclusion on the foregoing is that the prosecution failed to discharge the burden of proof on it under the law and there is a lingering doubt created in the evidence relied on by the prosecution, the doubt has to be resolved in favour of the accused persons whose acquittal and discharge are thus automatic.

​There is nothing on which this Court can hinge an interference with findings so sound and not impugned of the Court below. Therefore this appeal fails for lacking in merit. I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The Respondents herein were charged before the Chief Magistrates Court, Apiapum-Obura, Cross River State on a 3-count charge of conspiracy to commit malicious damage/conduct likely to cause breach of peace, conduct likely to cause breach of the peace and malicious damage under the Criminal Code Cap. 31 Volume II Laws of Cross River State of Nigeria, 1983.

The facts that gave rise to the charge have been adequately captured in the lead judgment. Suffice it to say that the trial Chief Magistrate found them guilty as charged. On counts 1 and 2, they were cautioned and discharged. On count 3, for malicious damage, they were each sentenced to a term of 2 years imprisonment with hard labour or a fine of N2000.

On appeal to the High Court in its appellate jurisdiction, the conviction and sentences imposed on the Respondents on all three counts were set aside. On further appeal to the lower Court, the judgment of the High Court was affirmed.

The Appellant is still dissatisfied and has further appealed to this Court vide its notice of appeal filed on 28/12/2017 containing 4 grounds of appeal.

It is pertinent to note that there are concurrent findings of fact by the two lower Courts. What the Appellant is seeking by this appeal is for this Court to engage in a third evaluation of the facts. This Court is always very wary of interfering with concurrent findings of fact unless they are shown to be perverse. The Appellant therefore has an uphill task to satisfy the Court that there are exceptional circumstances to warrant the setting aside of the concurrent findings. See: Atto Maba Vs The State (2020) LPELR-52017 (SC) @ 31-32 D-C; Olayode Vs The State (2020) LPELR-62519(SC) @ 18 A-B.

The Respondents herein filed a preliminary objection to the competence of the appeal on the ground that all the 4 grounds of appeal filed by the Appellant are grounds of fact or mixed law and fact for which no leave was sought or obtained, which renders the said notice incompetent.

​By virtue of Section 233 (3) of the 1999 Constitution, as amended, any ground of appeal that does not fall Within the provisions of Section 233(2) thereof, requires prior leave of this Court or the Court below. Section 233(2)(a) provides that an appeal shall lie to the Supreme Court from decisions in any civil or criminal proceedings before the Court of Appeal as of right, where the ground of appeal involves questions of law alone. Subsections (b)-(f) are not relevant to this appeal.

The 4 grounds of appeal shorn of their particulars read as follows. GROUND 1 The lower Court misdirected itself when it held as follows: “PW2 and PW3 alluded to the presence of certain boys at the scene who were digging the grave while the Respondents looked on. PW3 was particularly clear on this. This was the same witness with poor sight. An interesting part of their testimonies was that they ran immediately stones were being thrown at them with their assailants in pursuit, how they could name those stoning them with their backs turned is some mystery.

They did not report any injury so equally mysterious is the fact that the stones thrown at them did not injure them but only broke the small pot held by PW2.” GROUND 2 The lower Court misdirected itself when it held as follows: “While PW1 who was not at the scene was eager to name his adversaries in the leadership tussle as the perpetrators of the alleged offence, PW2 and especially PW3 named other persons who they described as boys as different from the Respondents who were called chiefs, as the likely perpetrators.” GROUND 3 The lower Court misdirected itself when it held as follows: “Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.” GROUND 4 The judgment of the Court below is unwarranted and cannot be supported having regard to the evidence adduced.

Learned counsel for the Appellant appears to concede the fact that Grounds 1, 2, and 4 are of mixed law and facts for which no leave was sought. He is correct. It follows that the said grounds of appeal and the Appellant’s Issue 1 predicated thereon, are incompetent and accordingly struck out. It is however his contention that Ground 3 is a ground of law and can therefore sustain the appeal.

The particulars of Ground 3 are as follows: GROUND 3 The lower Court misdirected itself when it held as follows: “Having come to the above conclusions on the main counts, the first count of conspiracy is fatally flawed and cannot in the circumstances be sustained as well.” PARTICULARS OF ERROR i. The Respondents were charged for breach of peace owing to their malicious conducts.

The count is hereby reproduced below: “Conspiracy to effect unlawful purpose to wit malicious damage/conduct likely to cause breach of peace contrary to Section 518(6) of the Criminal Code Cap. 31, Volume II Laws of Cross River State of Nigeria, 1983.” ii. Conspiracy cannot be ascertained by mathematical precision but by drawing necessary inferences or deductions from certain criminal act of the parties concerned. iii. The Appellant, through its PW2 already led cogent evidence to show that Respondents willfully damaged the village pot when the Respondents hurled stones at him. iv.

The lower Court failed to sustain the count of conspiracy by drawing the proper inference from the testimony of PW2 despite the expression of a criminal design and intent by the Respondents, who hurled stones at PW2 thereby damaging the village pot in custody of PW2.

A careful reading of Ground 3 reveals that the Appellant’s complaint borders on a misapplication of the law to proved or admitted facts i.e. that the prosecution having established through PW2, that the Respondents deliberately hurled stones at him and damaged the village pot in the process, the lower Court ought to have drawn the necessary inference that the Respondents conspired to do an illegal act, to wit: malicious damage/conduct likely to cause a breach of the peace.

It has been held severally by this Court that a ground of appeal complaining of a misunderstanding by the Court below of the law or a misapplication of the law to facts already proved or admitted, is a ground of law. See: State Vs. Omoyele (2017) NWLR (Pt. 1547) 341; Amuda Vs Adelodun (1994) 8 NWLR (Pt. 360) 22 @ 30: Ogbechie Vs. Onochie (1986) 2 NWLR (Pt. 23) 484; Anukam Vs Anukam (2008) 1-2 SC 34. I therefore agree with my learned brother that Ground 3 is a ground of law.

The Appellant’s Issue 2 is predicated on ground 3. My learned brother has dealt with this issue quite comprehensively in the lead judgment. I agree entirely with the reasoning and conclusion that there is no merit in the said issue.

In criminal prosecution, the guilt of the accused must be established beyond reasonable doubt. In order to discharge the burden of proof, every ingredient of the offence charged must be proved. Failure to prove an essential element of a crime is fatal. It means that the burden of proof beyond reasonable doubt has not been discharged and the accused would be entitled to an acquittal.

See:Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F-C; Mohammed Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164 @ 191 G-H & 197 C-D; Oladele Vs Nigerian Army (2004) 6 NWLR (Pt. 868) 166; FRN Vs Umeh & Anor (2019) LPELR-46801 (SC) @ 18 C-D.

In the instant case, an essential element of the offence of malicious damage/conduct likely to cause a breach of peace under Section 249(d) of the Criminal Code is that the act or conduct must have occurred in a public place. Having failed woefully to establish this fact, the prosecution did not succeed in establishing the guilt of the Respondents beyond reasonable doubt.

The lower Court was therefore justified in dismissing the appeal and affirming the judgment of the High Court of Cross River State, sitting in its appellate jurisdiction acquitting and discharging the Respondents and setting aside the binding-over order made against them. The findings have not been shown to be perverse.

For these and the more elaborate reasoning in the lead judgment, I also dismiss the appeal for being without merit. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment written by my learned brother AMINA ADAMU AUGIE, JSC, with whom I am in agreement with the reasons adduced and the conclusion contained thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved the issues distilled for the determination of this appeal.

I am in entire agreement with the reasoning and conclusion arrived at, by my learned brother AMINA ADAMU AUGIE, JSC that this appeal is lacking in merit. The appeal is therefore dismissed by me.

I endorse and affirm the decision of the Court of Appeal, Calabar Division.

I abide by the consequential order(s) (if any) contained in the lead judgment. Appeal dismissed.

IBRAHIM MOHAMMED MUSA

SAULAWA, J.S.C.: My learned brother, the Hon. Justice Amina Adamu Augie, JSC, has accorded me the opportunity of a preview of the judgment just delivered. I agree entirely with the reasoning postulated therein, to the conclusive effect that the present appeal lacks merits.

Hence, having adopted the reasoning in question as mine, I too hereby dismiss the appeal. Appeal dismissed.

Judgment

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of the appeal filed by the Appellant Abbah Micheal against the decision of the Ondo State High Court of Justice Akure Division delivered on the 17th day of January, 2018. The Appellant was the 2nd Defendant charged along with 3 others before Justice W. R.

Olamide by way of an information for the following offences: (1) Conspiracy to commit armed robbery contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation. (2) Conspiracy to commit murder contrary to and punishable under Section 324 of the Criminal Code Cap 37 Laws of Ondo State 2004. (3) Armed robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation. (4) Murder contrary to Section 316 and punishable under Section 219 of the Criminal Code, Cap 37, Vol. 1 Laws of Ondo State of Nigeria, 2006.

The fifth count which deals with receiving stolen property concerns only the 4th defendant Mr. Adeniyi Friday who was discharged and acquitted at the trial while the Appellant and two others; 1st and 3rd Accused Persons were found guilty convicted and sentenced to death by hanging.

The facts upon which the case was founded leading to the trial and conviction of the Appellant is that on the 31st day of August, 2013, the Appellant along with 2 others namely: (1) Olowodagba Tosin (2) Ameh John, that the 3 of them conspired together while being armed with a gun and other dangerous weapons along Bolorunduro-Ogbese road robbed one Pc. Edema Omoniyi of an unregistered Honda motorcycle who was shot and killed in the process of the robbery.

At the end of a full scale trial where two witnesses testified for the prosecution and 7 for the defence, the Learned Trial Judge in a considered judgment found the Appellant guilty as charged convicted and sentenced him thus: “You Abbah Michael, the sentence of the count on you is that you be hanged by the neck until you be dead may the Lord have mercy on your soul.” ​ This appeal is therefore against the above verdict. The Notice of Appeal containing 6 Grounds of Appeal was filed on 12th July, 2021 after obtaining leave for extension of time within which to appeal from this Court.

Consequently, the appeal was eventually entered on the 13th day of September, 2021.

The Appellant’s Brief of Argument filed on 12th October, 2021 settled by Oladele Ojogbede, Esq., the learned Counsel formulated three issues for determination, thus: ISSUES FOR DETERMINATION (i) Whether the learned trial judge was not in error to have convicted the Appellant for the offence of criminal conspiracy to commit armed robbery and murder, despite the apparent failure of the prosecution to establish the meeting of minds as between the Appellant and other Defendants to commit such crimes? (Distilled from Ground 2 of the Grounds of Appeal) (ii) Whether the learned trial judge was not in error when he relied heavily on Exhibit 6 (the confessional statement of a co-accused person) which the Appellant did not adopt to convict him for the offences of armed robbery and murder despite the absence of an eye witness account and the material contradictions apparent in the evidence of the prosecution witnesses? (Distilled from Grounds 1, 3 and 4 of the Grounds of Appeal) (iii) Whether in the overall circumstances of this case, the prosecution can be said to have proved its case against the Appellant beyond all reasonable doubt in the light of the weak unsubstantiated and unproven evidence adduced at the trial? (Distilled from Grounds 5 and 6 of the Grounds of Appeal).

ARGUMENT OF APPELLANT COUNSEL Learned Counsel to the Appellant submitted that there was no sufficient evidence of conspiracy between the Appellant and the other persons alleged to be involved in the crime, in this regard the holding by the trial Judge was in the realm of speculation; submits that a Court of Law is not expected to speculate but must decide issues on the strength of evidence presented before it. See Okoro V. State (1964) 1 All NLR 423. Counsel submits that there are doubts as to identification of the Appellant from the evidence of PW1 who the Appellant said he does not know.

Peter Ogwuche who was not called as a witness during the trial but whose statement is contained in the proof of evidence would have been the ideal witness but his statement according to counsel contradicted the evidence of PW1 received in Court. On issue two (ii), the learned Appellant Counsel submits that the statement of DW1, Exhibit 6 is not binding on the Appellant not having adopted same. See Titilayo V. State (1998) 2 NWLR (Pt. 537) 235, Tanko V. State (2008) 16 NWLR (Pt. 1114) 628.

Submits further that by virtue of Section 29(4) of the Evidence Act 2011, where an accused person makes a confessional statement in the presence of a co-accused person which incriminates the co-accused person, such a statement cannot be taken into consideration by the Court as against such a co-accused unless he adopted the statement either by words or conduct. In this case, according to Counsel, the Appellant has not adopted Exhibit 6 so it should be discountenanced against him.

The learned Appellant’s Counsel argued that the only thing linking the Appellant to the offences charged is his retracted confessional statement. And it is trite law that a Court does not convict on a retracted confession. Unless it passed the test set up in Gabriel V. State (1989) NWLR (Pt. 122) 457.

Submits that the offence of murder has not been proved beyond any reasonable doubt because, whereas the medical report, Exhibit 1 suggested that the deceased died of gunshot injuries, this was contradicted by the evidence of PW2 who contended that he went to the hospital to see the corpse of the deceased, “there were matchet cuts round his body”. Counsel submits further that having regards to the contradictory nature of this evidence the real cause of death remain mysterious and has not been conclusively established: whether he was killed by gunshot or by matchet cuts.

So the trial Judge could not have safely convicted the Appellant without causing damage to the cause of justice. In the light of which the Appellant’s Counsel submits that the finding of the trial Court that the Appellant and others murdered the deceased is perverse. Submitting on the third and last issue, the Appellant’s Counsel submits that the failure to call one Dr.

Osason the person who prepared the medical report tendered and admitted as Exhibit 1 has denied the Appellant the opportunity to cross-examine the Doctor, by implication amounts to denial of fair hearing Counsel cited Section 36(6) (d) of the 1999 Constitution and urged this Court to nullify the entire proceedings on that account and strike out Exhibit 1. See Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 295, Esen V. The People of Lagos State (2014) 2 NWLR (Pt. 1390) 114 and Al-Mustafa V. State (2013) 17 NWLR (1383) 365.

Submit further that the evidence adduced at the trial is so weak and unsubstantiated that no reasonable Tribunal would feel safe to convict on them. That there are contradiction in the case to the extent that it is not certain whether the offence was committed in the morning or in the evening even the circumstance leading to the recovery of the gun and the precise location where it was recovered was in the realm of speculation; and conjectures. This contradictions should not be ignored.

On the whole, learned Appellant’s Counsel urged this Court to resolve all the three issues in favour of the Appellant. RESPONDENT’S BRIEF OF ARGUMENT Shehu Wada Abdullahi, Esq., on behalf of the Respondent prepared the Brief of Argument filed on 2nd November, 2021 where he donated a sole issue for determination to wit: “Having regard to the facts of the case and the evidence led by the prosecution, whether the trial Court was not right in convicting the Appellant.”

Learned Respondent’s Counsel submitted that this sole issue encompasses all matters in this appeal. Counsel submits that the facts of this case revealed that there was robbery on 1st September, 2013 as can be gathered from Exhibit 9 which is the Appellant’s confessional statement though retracted but the Court according to the Respondent’s Counsel was right in relying on it to convict the Appellant being a free and voluntary confession which has met all the requirements of law stipulated in Sale V. State (2020) 1 NWLR (Pt. 1705) 205.

Counsel submits that at the trial the offence of conspiracy to commit armed robbery and murder has been successfully proved. After all to prove conspiracy, it is not necessary that there should be direct communication between each and every other conspirator, provided that the criminal design alleged is common to all. Okoh V. State (2014) 8 NWLR (Pt 1410) 502.

Submit that from the contents of Exhibit 9 it is clear that there is a common intention to commit robbery as the Appellant and his cohorts perfectly planned and executed their motive and intention. ​On the offence of armed robbery, learned Counsel submits that by the evidence adduced at the trial Court particularly Exhibits 2, 3 and 17 proves that armed robbery actually took place for which the Appellant had confessed by virtue of Exhibit 9.

PW1 testified that the persons who perpetrated the act were armed, more especially when regard is had to the fact that the victim of the robbery evidence have shown died of gunshot as per Exhibit 1 (Autopsy report) admitted without any objection. The Court is bound to rely on such document. It has also been proved that the intentional act of the Appellant caused the death of the deceased.

In short, Counsel to the Respondent submit that conspiracy was proved by circumstantial evidence and the Appellant’s confessional statement. ​ Learned Counsel also stated the ingredients for the offence of armed robbery and related them to the evidence on record either in the Exhibits tendered or the oral evidence of witnesses and the Appellant’s confessional statement just in the same vein, Learned Respondent’s Counsel submit that the prosecution has succeeded in establishing all the ingredients needed to convict for armed robbery as well as murder.

Quoting copiously excerpt of the evidence adduced at the trial as well as the contents of the confessional statement of the Appellant, counsel also submitted that a Court of law is entitled to convict even on retracted confession as long as it is properly done. Moreover retraction of confession affects only the weight to be attached to the document. Supporting this stand with some judicial authorities among which are Kanu & Anor V. King (1952) 14 WACA p. 30, Mbenu V. State (1988) 3 NWLR (Pt. 84) and Egbogbome V. State (1993) 7 NWLR (Pt. 306)383.

On whether the trial Court relied on Exhibit 6 statement of a co-accused to convict the Appellant, Respondent’s Counsel submits that the current position of the law is that the Court will look at the incriminating statement of the co-accused and see whether there is a link between it and other evidence in the case. This much was enunciated in Adeleke V. State (2013) LPELR 20971 (SC) 35 and Ajaegbo V. State (2018) 11 NWLR (1631) 484.

On the basis of the foregoing, the Respondent urged this Court to dismiss the appeal for being unmeritorious and frivolous and then uphold the conviction of the Appellant. RESOLUTION OF ISSUES Upon the review of the arguments and submission of the learned Counsel for the Appellant and Respondent in their respective briefs; I find the sole issue for determination formulated by the Respondent’s Counsel more comprehensive and sufficient enough to resolve the entire appeal one way or the other.

The issue goes thus: “Having regard to the facts of the case and the evidence led by the prosecution, whether the Trial Court was not right in convicting the Appellant.” It is indeed the law that where the commission of an offence is in issue in any criminal proceedings the only thing that will suffice and ground a valid conviction is that the allegation must be proved beyond reasonable doubt.

The Appellant was proceeded against 4 (four) distinct heads of charges name: (1) Conspiracy to commit armed robbery (2) Conspiracy to commit murder (3) Armed robbery and (4) Murder. ​ Whenever a person is charged for conspiracy to commit an offence along with the commission of the substantive offence the proper approach by the Court in resolving the charges is to first deal with the substantive offence or charge and then proceed to determine whether conspiracy has been proved or can be inferred from the circumstance. Osetola V. State (2012) 17 NWLR (Pt 1329)251, Jimoh V.

State (2014) 10 NWLR (Pt 1414) 105. Starting with the offence of armed robbery, the law is settled as to what constitute armed robbery; it simply means stealing plus violence in the words of Nnaemeka Agu JSC, in Aruna VS. State (1990) NWLR (Pt. 155) 125, “Armed robbery means simply stealing plus violence used or threatened” Mohammed V. State (2022) LPELR 57830 (SC), Okobi V. State (1984) LPELR 2453 (SC). For there to be a conviction on a charge of armed robbery, the following three ingredients must be established.

Namely: (1) That there was a robbery or series of robberies. (2) That the robbery was an armed robbery (3) That the accused while with arms participated in the robbery. See Bozin V. State (1985) 799 SC and Barnabas V. State (2022) LPELR – 58244. The fact that robbery had taken place is simply not in doubt here as per the evidence of PW1 Sgt.

Nurudeen Adegboyega, he testified as one of the police officers who investigated the offence and that their investigation established “that the 1st, 2nd and 3rd Defendants (2nd defendant is the Appellant here) jointly carried out the operation which led to the death of the deceased Mr. Edema Omoniyi, a police officer attached to Bolorunduro police station, the crime was committed on the 31st August, 2013 between 8:00pm and 9:00pm when the deceased was going home after work.

This piece of evidence and the recovery of the weapon of offence from one of the suspects coupled with the contents of the Appellant’s confessional statement clearly suggest and conclusively establish armed robbery from which a human being was killed occurred on 31/8/2013 along Ogbese/Bolonduro road, Akure. ​ What we are faced with in this appeal in addition to conviction for armed robbery there is also a conviction for murder, at the base of it all is the notorious fact that in a trial for murder, the prosecution must prove its case beyond reasonable doubt and in so doing the essential ingredients must be made out.

These essential elements are: (1) That the death of a human being has actually taken place. (2) That the death was caused by the accused. (3) That the act was done with the intention to cause death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act. In proof of those elements, the prosecution could rely on direct eye witness account of the incident, voluntary confessional statement or circumstantial evidence. See Kaza V. State (2008) 7 NWLR (Pt. 1085) 125 163, Oludamilola V.

State (2010) 181 LRCN 1 at 16, Mustafa Mohammed & Anor V. State (2007) CRCN 110 at 125 and Adio V. State (1986) 2 NWLR (Pt. 24) 581. See also Ugochukwu Okereke V. State (2016) LPELR 40012 (SC).

From the records of this appeal, it is obvious that the State relied in proof of the case against the Appellant on both circumstantial evidence and confessional statement on the basis of which the trial Court convicted the Appellant who was the 2nd accused at the trial Exhibit “9”. ​ The Appellant’s Counsel complained that the Appellant had retracted his confessional statement and did not adopt the statement of the first defendant as would have entitled the learned trial Judge to rely upon and find the Appellant guilty of the offences charged.

The learned trial Judge stated in his judgment that notwithstanding the retraction the Court could still rely on the confessional statement to convict the Appellant where the confession is cogent and unequivocal and where it passes the credibility test enunciated in Madjemu V. State (2001) 9 NWLR (Pt. 718) 349 and several other cases including Taye Ikujuni V. State (2016) LPELR 41343 (CA).

It is also clearly on record that the lower Court in its judgment actually subjected the Appellant’s retracted statement to the credibility test in addition to credible corroboration found in the testimony of PW1 and evidence of other defence witnesses which convinced the trial lower Court that the retraction was merely an afterthought.

The lower Court found that one Edema Omoniyi actually died from gunshot injuries which was obviously inflicted from behind by a third party and evidence have shown only the Appellant and the other suspect perpetrated the act. ​ Let me even add that there is evidence that apart from the gun held by one of the conspirators during the robbery others including the Appellant had some matchet/wood therefore, the evidence that the corpse of the deceased contained matchet cut in addition to gunshot wounds is consistent and credibly worthy of belief.

After all, PW2 only said he saw matchet cut on the body of the deceased but did not say as much as those cuts actually cause his death. There is therefore no contradiction between the evidence of PW2 and the Doctor report, Exhibit I on the cause of death. The lower Court has done pretty well in the process of the evaluation of the evidence adduced before it which in any case is the primary responsibility of the trial Court in this regard.

There is no reason for this Court to interfere with the evaluation and ascription of probative value done by the trial Court as there is nothing perverse in the exercise carried out by the lower Court. See Oke V. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332. The Appellant Counsel condemned the evidence of PW1 and challenged its efficacy based on the argument that it has contradicted the statement of one Peter Ogwuche attached to the proof of evidence who infact did not come forward to testify. Counsel contended that the contradiction was material just as much as the failure to call Mr. Ogwuche.

This submission is absurd because contradiction can only be said to exist in a party’s case where evidence of two witnesses go against one another head to head not when the evidence of a witness goes against the statement of somebody who did not testify as a witness. See Zakirai V. Mohammed & Ors (2017) LPELR – 42349 (SC). Secondly, the law does not impose on the prosecution to call a host of witnesses in order to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter.

It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Olayinka V. State (2007) 9 NWLR (Pt. 1040) page 561 and Odili V. The State (1977) LPELR-2221 (SC).

Moreover, only evidence duly adduced and received in the course of hearing a matter in Court that will make or mar the prosecution’s case, not statement of any other person merely attached to the proof of evidence. ​ But what is it that the PW1 told the Court in his evidence which the Appellant is saying is not sufficient to convict or that the trial Judge relied on confessional statement of the 1st defendant to convict the Appellant as there was no evidence against him. The PW1 Sgt.

Nurudeen Adegboyega, a police Sergeant attached to the homicide section of the State C.I.D, his evidence as per the records is that on the 1st day of September, 2013, he was at home when the O. C. homicide DSP John Amubieya called him and asked him to report to the office, at the office he was informed that somebody was robbed and killed, his motorcycle taken away.

The A.C.P ordered them to move to the crime scene at Ogbese/Bolonduro, which they did, based on the information at their disposal they arrested the Appellant and the accused person both of whom denied the allegation initially he went on to add that they recovered the motorcycle snatched from the deceased victim of the robbery.

The 3rd accused person was arrested later, all the three suspects including the Appellant confessed to the crime, their various statements were read over to them they agreed it was correct and signed same while the recorders counter-signed, PW1 said their investigation further confirmed that the Appellant and the 1st and 3rd accused persons jointly committed the robbery and the murder.

The weapon of offence was recovered from one of the suspects who operated together with the Appellant, a locally made gun, medical report on the cause of death were all tendered and admitted without any objection while PW2 confirmed that he was the person who as relative to the deceased identified his corpse. These pieces of evidence no doubt satisfied the requirement of establishing that a human being had died which invariably provided the additional pieces of evidence with which the veracity of the Appellant’s confessional statement can be judicially tested.

The Appellant has challenged the reliance by the Court below on Exhibit I, the medical report on cause of death on grounds of the absence of the maker and that there were inconsistencies on whether the deceased died of gunshot or matchet cuts. It is important to note that though desirable, a medical report is not sine qua non in determining the cause of death in a case of murder where there are other pieces of evidence upon which the cause of death can be inferred to the satisfaction of the Court. See Joseph Bille V. The State (2016) LPELR 40832 (SC), Alarape & Ors V.

The State (2001) 5 NWLR (Pt 705) 79, Adekunle V. State (1989) 5 NWLR (Pt. 123) 505. See also Onitilo V. The State (2017) LPELR 42576 (SC).

What is most remarkable is that the medical report, locally made shotgun with the empty shell casing, the confessional statement of the Appellant were tendered and admitted without any objection even with respect to voluntariness of the confessional statement because Appellant’s Counsel withdrew his objection to the admissibility of the Appellant’s confessional statement, just about when a trial within trial to determine its voluntariness was about to commence.

See page 35 of the records of appeal therefore the Appellant’s two extra-judicial statements were then admitted and marked Exhibits 8, 9 while the confessional statement/attestation form Exhibit 10 with this Exhibit in place, the trial Judge does not need Exhibit 6, statement co-accused, to determine the culpability of the Appellant. ​ The evidence given against the Appellant was never challenged or controverted during cross-examination, appellant did not ask one single question to challenge or controvert the evidence that he participated in the crime or that he voluntarily made a confession, having not led any cogent and compelling evidence in his defence, the law is trite that the Court is entitled to belief and rely on such evidence in coming to its verdict.

State V. Oray (2020) 7 NWLR (Pt 1722) 130, Igwe V. People of Lagos State, just like my noble brother Habeeb Adewale Abiru JCA wondered in the unreported sister case of Olowodagba Tosin V. The State, Appeal No. CA/AK/406C/2019, Akure Division delivered on 20th June, 2022 to which I fully concurred, my Lord observed thus: “All the queries raised by Counsel to the Appellant in his brief of argument against the evidence of the first prosecution witness were present and available to Counsel at the time of cross-examining the witness, but not one of the queries was asked the witness.

Counsel obviously forgot that the proper state for discrediting the case of the Respondent and the prosecution witness is not in the address of Counsel or the brief of argument on appeal but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever prosecution witness had placed in evidence but certainly not on appeal as counsel sought to do. Balogun V. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro V. State (2012) 1 SC.” ​In criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination.

Where the evidence of a witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal, per Supreme Court in Igwe V. People of Lagos State (supra) pages 451-452. Exhibit 9 is the confessional statement of the Appellant like I observed earlier it was admitted without any objection and the Appellant Counsel did not cross-examine the PW1 through whom the Exhibit 9 was tendered.

Meaning that the appellant has accepted the truth of the evidence of the witness on the fact that the confessional statement was indeed made voluntarily by the appellant. See Esene V. State (2017) 8 NWLR (Pt. 1568) 337, Isah V. State (2018) 8 NWLR (Pt. 1621) 346, Egba V. State (2019) 15 NWLR (1695) 201.

Now, this is what the appellant said in the confessional statement: “I of the above name and address voluntarily elect to state as follows: that I am a native of Owukoa in Ogbadibo local government area of Benue State. My father’s name is Ichuk Micheal while my mother’s name is Victoria Micheal both living at Owukpa village in Benue State. I attended Ejah Primary School Owukpa and stopped at primary 5. I did not further my education. It was Mr.

Godwin Itudo that brought me to Bolonduro and I have served him for three years before he signed me with one Sunday ‘m’ living at Bolonduro to learn operator. I know Ameh John for the past two years and both of us live in the same house, I also know Tosin Olowodagba since 2010 at Ogbese, he always visited me at Bolondure but he has been sleeping with us since April of this year. It was Tosin that informed me that his boss living at Ikare said he should go and stole the motorcycle, that he alone could not do the job alone that myself and Ameh John should followed him to the operation.

On Saturday 31/8/2013 at 9:00pm, three of us moved to Bolonduro/Express road and hide in the bush waiting for empty okada operator, we did not attack any okada operator that carried passenger. Tosin carried gun, Ameh John carried cutlass and wood while myself also carried wood.

Immediately decease was coming and saw him alone not carried passenger, Tosin rushed out from the bush and shot the deceased with the gun, he quickly rushed back to the bushed and hide the gun then myself and Ameh returned to bolonduro while Tosin ride the motocycle to Ikare-Akoko to meet his boss name Adeniyi Friday ‘m’. We all agreed that Tosin should sell the motocycle at rate of N60,000 but he gave us condition that he would take N30,000 and give Ameh John and myself N15,000 each.

The gun belong to Tosin and says that it was given to him by his boss Adeniyi Friday ’m’ living at Ikare-Akoko, this is my first operation with Tosin and I have never killed anybody in my life. I don’t know where Tosin use to get bullet but he told us that he always get it from his boss at Ikare. Signed & Thumb printed 4/9/13.” The evidence contained in this statement is consistent with the contents of Exhibit 1, the medical report, agrees substantially with the evidence of PW1 and from it are found all the elements constituting the offences of armed robbery, murder and criminal conspiracy.

I am of the firm opinion that the Appellant has not given any cogent or compelling reason why we should temper with the findings of the lower Court suggesting that the Respondent has made out a good case proving the allegation against the Appellant.

The overall circumstance of this case where 3 people including the Appellant came together to do some illegal acts to commit armed robbery and murder on 31/8/2013 along Bolnduro/Ogbese way Akure, necessarily imply conspiracy, the Trial Court was therefore right in arriving at the conclusion and drawing inference from the established facts that the Appellant is guilty of conspiracy.

The law is well settled that proof of the offence of conspiracy is a matter of inference drawn from circumstances under which the principal offence was committed; the Court is entitled to draw inference from facts and evidence adduced before it. See Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421 and Adebayo V. PDP (2013) 17 NWLR (Pt 1382) 1.

I find the inference drawn and relied upon by the trial Court in this case, very reasonable and in accordance with the evidence led by the parties in that the action of the Appellant with his cohorts which led to the death of the deceased in the cause of committing armed robbery was in furtherance of an agreement between them especially when regard is had to the evidence that after shooting the deceased, the culprits stole and sold his motorcycle to the 3rd accused person Mr. Adeniyi Friday who testified as DW4.

By his own admission, the Appellant confessed that he was given N15,000.00 from the proceeds of the sale of the motorcycle. See Exhibit 9. There is therefore no doubt whatsoever that the Appellant conspired with the other suspects, and committed the offences of armed robbery and murder for which they were tried and rightly convicted. On the whole, I find no merit in this appeal. It is hereby dismissed. The judgment of the Ondo State High Court Akure delivered on 17th January, 2018 by Hon. Justice W. R. Olamide in Suit No AK/8C/2015 is hereby affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have the opportunity of reading in draft the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA in this appeal. While the law is settled to the effect that the onus of proof is on the prosecution to prove its case beyond reasonable doubt, it is expected of the defendant to introduce reasonable doubt as it were to the case of the prosecution.

This the accused person or defendant can do by controverting the case of the prosecution and adducing evidence to challenge the same and or by establishing his (accused person or defendant) own defence. Where as in the instant appeal, the Appellant offers no credible explanation to the allegation(s) against him or makes no effort as it were to controvert and successfully challenge the case of the prosecution, any attempt by such accused person or defendant to do what he ought to have done at the trial Court, on appeal would definitely be of no moment. See the case of BAKARE V.

STATE (1987) LPELR-714(SC). I am in agreement with the position of his Lordship in the leading judgment that the Appellant has failed to show why this Court should interfere with the judgment of the lower Court convicting and sentencing him (Appellant) of/for the offences preferred against him in the information on which he was tried. I too therefore find this appeal to be without merit and accordingly dismiss the same.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusion reached therein. I have nothing more to add.

Judgment

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment) : Appellant and one Mohammad Abdullahi were tried and convicted before the High Court of Kano State for the offences of culpable homicide punishable with death of one Abubakar Shuaibu on the 9th day of March, 2015 and of conspiring to commit that same offence. The two charges read as follows: 1.

That you Abdulmalik Muhammad and Muhammad Abdullahi, adult, of Tarauni Local government, Kano State, within the Kano Judicial Division, on or about the 9th March, 2015 at about 1230 hrs along Ring Road, Unguwa Uku did agreed to do an illegal act to wit, committed the offence of Conspiracy punishable under Section 97 of the Penal Code (Cap 105) Laws of Kano State of Nigeria. 2.

That you Abdulmalik Mohammed and Muhammad Abdullahi, adults, of Tarauni Local Government Area of Kano State, within Kano Judicial Division on or about the 9th March, 2015 at about 12.30 hrs along Ring Road, Unguwa Uku did committed Culpable Homicide Punishable with death, in that you caused the death of one Abubakar Shuaibu of Tarauni local government area of Kano State by strangulating him in the neck and pushed him into the water with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.” ​ The case of the prosecution was that appellant and his co-accused person along with the deceased took the deceased’s motorcycle to the prosecution’s first witness (P.W.1) Nasiru Ahmad’s Workshop on the fateful 9th day of March, 2015 for vulcanizing work, deposited it with P.W.1 and all three of them crossed to the other side of the road and disappeared.

About four hours later, according to P.W.1, only appellant and his co-accused person returned to the workshop and were seen by P.W.1 trying to break the lock of the motorcycle, apparently to take it away. When P.W.1 asked appellant and his co-accused where the deceased was, they simply told him that they wanted to take the motorcycle away.

At that point, P.W.1 mentioned, he observed that appellant and his co-accused were drunk and were holding a bottle which he called ‘piya piya’ and were ‘malingering’, even as he added that both accused persons and the deceased were sober when they first went to deposit the motorcycle with him. He said he drew his colleague’s attention to what appellant and his co-accused person were trying to do and went to report his observations to the Police. Upon getting to Mariri Police Station, he learnt that the deceased had died.

He nevertheless reported the matter to the police, made statement and left his phone number with them. ​ P.W.3, Sgt. Isa Malachi, who was assigned to investigate the case at Mariri Police station before its subsequent transfer to the Kano State C.I.D., in his evidence recounted P.W.1’s observations as stated above.

P.W.3 said he arrested appellant and his co-accused person for what appeared to the police to be homicide, especially as appellant and his co-accused did not raise any alarm at the pond where the deceased drowned but instead went to break and remove his motorcycle from P.W.1’s custody. He said Police on the same day engaged men of the Fire Service Department and even local divers to recover the body of the deceased from the pond but to no avail as they could not spot it.

It was only on the following day, being the 10th of March, 2015, he said appellant showed the search party the exact location of the pond where the deceased drowned and his corpse was recovered (see last paragraph of p. 17 of the records to the first paragraph of p.18). When asked by the police to explain how the deceased fell into the water, he said appellant and his co-accused claimed that the deceased fell into the water by himself to swim but was drunk and so drowned.

Under cross-examination, P.W.3 said the Police did not believe that explanation of appellant and his co-accused because the deceased was still wearing shirts and trousers when his corpse was discovered, which he said wouldn’t be if the deceased really entered the pond to swim as claimed by the appellant and his co-accused. He said if the deceased really entered the water to swim, he would have pulled off his shirts and trousers.

Though P.w.3 under cross-examination admitted before the Court that pictures were taken of the recovery of the deceased’s corpse, those photographs (Exhibits P5 and P5a), which turned out quite revealing as regards whether the deceased was dressed in trousers and shirts or simply a swimming gear when his body was recovered, were for reasons best known to the prosecution not tendered by Respondent even as they were in its custody.

It was only through the adroitness of appellant’s counsel, one Alhassan Adamu, during cross-examination of the second Investigating Police officer (P.W.4), that the said photographs showing the real state of the body of the deceased upon its recovery from the water, were recovered from the custody of the prosecution by the same defence counsel and tendered in evidence.

The same P.w.3, I should also mention, in the course of his evidence-in-chief, tendered without challenge the statements appellants and his co-accused made to the Police at his Mariri Police Station before the transfer of the case to State CI.D. Kano. The two statements were admitted in evidence and marked exhibits P1 and P3 respectively. ​ Besides these two, an uncle of the deceased and the Policeman at State C.I.D. who investigated the complaint upon its transfer there two days after the incident testified as P.W. 2 and 4.

P.W. 2 claimed to have joined the police in the search for the deceased’s corpse in the pond and was emphatic that it was appellant that finally showed the police where the deceased drowned. P. W. 4 on his part, besides telling the Court the investigation he conducted, tendered the second set of statements appellant and his co-accused person made at the State CID, Kano. They were admitted in evidence as Exhibits P3 and P4.

In their defences, appellant and his co-accused person, as against their statements to the police tendered without challenge where they admitted accompanying the deceased (they even called him by his name Abba) in pushing his motorcycle to the Vulcanizer and how all three of them left to a pond to bath where the deceased according to them later fell into the water and drowned, denied even knowing the deceased at all let alone having anything to do with his death. They also denied knowing one another before their arrest and subsequent arraignment.

In fact, they claimed the police was bribed by P.W.2, the uncle of the deceased, to implicate them. ​ In his judgment of 09/05/2019, the trial judge, Nasiru Saminu, J., of the High Court of Kano State while admitting that there was ‘no direct evidence linking appellant and his co-accused to the death of the deceased’, nevertheless rejected their denials and the explanation they put forward and held the prosecution to have proved beyond reasonable its case against them and convicted them as charged on both counts.

He founded his decision principally on the criminal law doctrine of ‘last seen’ after also taking into account the conduct of appellant and his co-accused after the death of the deceased as earlier testified to by P.W.1.

His Lordship reasoned this way in arriving at his conclusion: “In this case, the person drowned in the pond died immediately as such thereafter because in the evening of 9th March, 2015 when he was seen alone and fell into the pound he was not seen alive again but his lifeless body was removed from the pound the next day 10th March, 2015 so the necessary inference to be drawn from this circumstances is that the deceased met with his death as a result of been drown (sic) in the pond, I so hold.

“The question that will follow is who was responsible for the deceased been drown (sic) inside the pond. Here also we could not find a direct evidence linking the accused person with the death of the deceased. However, from the available circumstantial evidence, it can be safely held that the accused persons and no other person were responsible for the death of the deceased. The evidence goes as this: The 1st and 2nd accused along with one other (later identified as the deceased) came to Pw1 a vulcanizer Pw1 at about 4:00pm at 9th March 2015.

According to Pw1, three of them crossed the road and went away. Later around 6:00pm 1st and 2nd accused persons came back to the Pw1 in a state of semi intoxication and were trying to force the key of the deceased motorcycle opened. On being questioned by the Pw1, they did not give any satisfactory answer to Pw1 only that they said they wanted to take the motorcycle to their parent. Pw1 said he knew that the motorcycle belonged to the deceased or the 3rd person the 1st and 2nd accused came along with because he was the one who locked the motorcycle and put the key in his pocket.

“In Exhibits P1 and P2, the accused person admitted been (sic) with the deceased person on the fateful day and according to them he fell inside the river they stated that people like Ilela, Ala, lsya and Malam were there when the deceased fell inside the pond and help the accused persons to get the deceased out but could not. Surprisingly, none of these people mentioned by the accused person was called to give evidence. Surprised still was that when the accused person went back to Pw1; the vulcanizer they did not inform him of what happened to the deceased.

They were only attempting to break his motorcycle lock and take it away. “Worst still is that the 1st and 2nd accused when giving oral evidence denied knowing the deceased forgetting that they had admitted going to the pound along with him in their extra-judicial statements Exhibit P1 and P2 recorded on 10th March, 2015 when the matter was still fresh in their mind. These statements were admitted without any objection by the defence.

It will be too late in the day for the accused persons to denying knowing the deceased because Exhibits P1 and P2 considered along with the Evidence of Pw1, it is clear that the 1st and 2nd accused were together with the deceased on the 9th March, 2015 and went to the pond together on that day their retraction notwithstanding. In Nasiru Vs. State (2016) LPELR-41806 (CA), it is settled that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made had retracted. However, in Haladu Vs.

State (2015) LPELR-26002(CA), it is settled that a voluntary confession which is inadmissible against an accused person who made had retracted. However, it is desirable and indeed the practice that where an accused person retracts or resile from his confession, the Court should look for some evidence outside the confession which will render the confession plausible or true’. “In this case, the 1st and 2nd accused were seen by Pw1 together with the 3rd person who later appeared to be the deceased person. He saw when three of them crossed the road and left their motorcycle with him.

The 1st and 2nd accused confessed in Exhibits P1 and P2 that they were together with the deceased at the pound where the deceased swan and drowned inside the pond. The body of the deceased was recover (sic) from the pond when the 1st accused pointed out the location where the deceased downed in the pond. This confirms what was contained on the Exhibits P1 and P2 that the 1st and 2nd accused were indeed together with the deceased at the pond on that fateful day contrary to their oral evidence that they never knew the deceased, it is merely an afterthought and I reject it.

“It is also in evidence that the 1st accused pointed to the fire service man and the local divers the location where the deceased drown inside the pound. The body of the deceased was recovered from that location as per the evidence of Pw2 and Pw3. Exhibits P1 and P2 shows the body of the deceased been removed from the pond. This piece of evidence confirmed that the 1st and 2nd accused were at the pond with the deceased and were left seen by Pw1 whom they kept their motorcycle with before proceeding to the pound but later 1st and 2nd accused came without the deceased person.

Thus, the 1st and 2nd accused in this circumstance owe an explanation as to the whereabouts of the deceased and if he is dead what are the circumstances that led to his death. However, surprisingly they did not proffer any explanation when asked by Pw1 but were hastened to force the lock of the deceased motorcycle opened. In Exhibits P1 and P2, the 1st and 2nd accused claimed that one Ala, Malam Iseyi were there when the deceased drowned in the pond but the accused did not call these people to testify.

“The accused person throughout the trial did not give any explanation as to the whereabouts of the deceased whom they were last seen with or the circumstances of his death. “The only conclusion to be drawn in the circumstances is that the 1st and 2nd accused were responsible for the death of the deceased person, I so hold.” “In Kolade Vs. State (2017) LPELR 42362 (sc), it was held that”– the law presumed that the person last seen with the deceased bears full responsibility of the death of the deceased per Ogunbiyi in his contribution Lord Justice Adekeye JSC (as he then was) in Hammer Vs.

A.G Federation (2012) 9 NWLR (PART) 1306 416 SC) had this to say: ‘The doctrine of last seen means that the law presumes that the person last seen with a deceased bears full responsibility of his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal’.” Appellant does not agree with that judgment hence, this appeal. Briefs of Argument, including a Reply Brief of appellant, were exchanged by Mr. Habeeb A.

Oredola for Appellant and Miss Aisha Ado Abdullahi for the Respondent holding the fiat of the Hon. Attorney General of Kano State to defend the appeal. Mr. Oredola for appellant distilled the following three issues (the first being rather very presumptuous on the state of the evidence) from appellant’s six grounds of appeal: 1. Whether having regard to the porous and speculative evidence adduced by the Respondent, the lower Court ought to have disregarded and acquitted the appellant, when neither the offence of conspiracy nor culpable homicide was established by the Respondent. 2.

Whether the learned trial judge did not err in law in relying on the doctrine of last seen in convicting appellant for the offence of conspiracy and culpable homicide when there was sufficient evidence before the lower Court that the deceased was in company of several other persons at the time of his death. 3. Whether the failure of the lower Court to consider the exculpatory evidence contained in Exhibits P1 and P3 of appellant and testimony of the prosecution witnesses did not occasion a miscarriage of justice.

Aisha Ado Abdullahi for Respondent simply saw only one issue arising from appellant’s six grounds of appeal and framed it thus: “Whether from the totality of the evidence before the Court the lower Court was right in convicting and sentencing appellant.” Appellant’s arguments: Arguing appellant’s issue one, Mr. Oredola first submitted, correctly, I should say, that appellant was standing trial for a capital offence so the prosecution had the onus to adduce cogent evidence pointing irresistibly to his guilt to secure conviction. To discharge that onus, counsel submitted and cited Ahmed v.

State (2018) LPELR-46606 (CA), the prosecution must prove conjunctively that (1) the death of a human being had taken place, (2) that such death was caused by the accused person, and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act.

He said the prosecution was only able to establish the death of the deceased but failed woefully to establish that his death was homicide or even the precise cause of his death let alone that appellant was responsible for his death; that there was absolutely no evidence on the records to support the charge as framed that the deceased was strangulated in the neck and then pushed into the water let alone by appellant.

He said none of the prosecution witnesses was even certain of the cause of the deceased’s death and no autopsy report was even tendered by the prosecution to determine whether the deceased was strangled as framed in the charge. He cited Lori v.

State (1980) 8-11 SC 81 to submit that medical evidence was imperative in the circumstances of this case to prove that the deceased was strangled as alleged in the charge; that in the absence of cogent evidence dispelling the possibilities of cause of the deceased’s death, the evidence of the two Investigating Police Officers (P.W.3 and 4) regarding the cause of the deceased’s death was completely worthless.

He argued that since the prosecution witnesses failed to establish the precise cause of the deceased’s death, there was uncertainty as to whether he was drunk when he attempted to swim in the pond and drowned, as alleged by the appellant and his co-accused, or whether the deceased was strangled and pushed into the water to drown as alleged in the charge by Respondent. In the circumstances, the burden on the prosecution to prove its case against appellant beyond reasonable doubt to secure conviction was not discharged and the trial judge wrong in deciding otherwise, Counsel submitted. Mr.

Oredola labeled the evidence of P.W 2 and 3 and 4 speculative, hearsay and lacking in evidential value given their admission that none of them witnessed the death of the deceased. He said P.W.2 and 3 even contradicted one another on who pointed out where the corpse of the deceased was recovered from in the pond: that whereas P.W.2 (the uncle of the deceased) claimed it was appellant’s co-accused person that pointed it out, P.W.3 said it was the appellant himself that did.

Such contradiction, counsel submitted, raised doubt as to the veracity of the testimony of P.W.2 and 3 and ought to be resolved in favour of appellant. Counsel in fact urged us to discountenance the testimony of both witnesses.

As for the two Police Investigating Police officers (P.W.3 and 4), counsel said even though they ‘allegedly’, as counsel put it, obtained statements tendered as Exhibits P1 and P3 from appellant, none of them conducted any investigation to verify the authenticity of the contents of the said statements or even what P.W. 3 told the Court in his evidence that appellant and his co-accused told him that the deceased fell into the water to swim but was drunk and so drowned.

Learned counsel next directed the Court’s attention to the evidence of P.W.4 of the State C.I.D. that he also arrested five persons two of which were eyewitnesses. Counsel submitted that the admitted existence of the said eyewitnesses to the incident not only eliminates the doctrine of last seen applied by the lower Court in convicting the appellant, it also means that the evidence of those eyewitnesses was vital and should have been called by the prosecution.

The failure by the prosecution to call them, counsel argued, implies that their evidence would have been unfavourable to the case of the prosecution if called hence, they were not called and we should so presume, in support of which counsel cited Oshodin v. State (2000) FWLR (Pt. 90) 1336 AT 1347.

He said the trial judge also recognized the importance of calling the identified eyewitnesses in the case going by his Judgment where he said that people like Ilela, Ala, Isya and Malam whom the appellant mentioned were also at the scene when the deceased fell into the water ought to have been called by appellant and his co-accused but were surprisingly not called. Relying on Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 AT 31-32 (SC), counsel submitted that failure to call a witness whose evidence is vital to the determination of the case is fatal to the case of the prosecution. ​ Mr.

Oredola next took on the evidence of the Vulcanizer (P.W.1) and also dismissed it as mere speculation and of no evidential value and hinged that submission principally on the admission of P.W.1 that he knew nothing about the death of the deceased. He argued that the alleged attempt of appellant and his co-accused to force open the motorcycle allegedly belonging to the deceased is not conclusive evidence of the guilt of the appellant and his co-accused, even more so when account is taken of the admitted drunken state of the two accused persons at that time.

It is possible, counsel submitted that given their state of inebriation, they may not have been even aware of what they were doing. That is as counsel also submitted that even the deceased’s alleged ownership of the said motorcycle was not proved. In any case, Mr. Oredola submitted that in any case the elements of the offence of attempted stealing of the said motorcycle and conspiracy to steal it, are distinct and separate from culpable homicide so it is speculative to rely on the fact of the alleged attempted stealing of motorcycle in convicting appellant for homicide as the lower Court did.

Counsel also submitted that the fact that appellant and his co-accused did not inform P.W.1 of the death of the deceased is also no proof or mens rea that the appellant caused his death by strangling and drowning him as alleged in the charge sheet; that all that was required of appellant and his co-accused person was to give an explanation to the Investigating Police Officer (P.W.3), which counsel said appellant did in his statement to the police so it was wrong of the trial judge to come to the far-reaching conclusion of appellant’s guilt on that account.

Learned counsel relied on the same facts above to also submit that a charge of conspiracy was also not made out by the prosecution so the trial judge was wrong in convicting appellant of it. He said there was no evidence from the prosecution to establish that appellant agreed with his co-accused person to kill the deceased or do any unlawful act; that it is not enough to say that because appellant and his co-accused were allegedly the last to be seen with the deceased they were in agreement to kill him.

Respondent, he argued, had the burden to show by direct evidence that appellant and his co-accused were acting in concert or in combination to accomplish or commit an unlawful act coupled with the intention to achieve the object of their agreement. Counsel also attacked the trial judge’s description and use of the two statements of the appellant to the police.

He submitted that not only was the statement of the appellant to the police which the lower Court relied on as confessional as regards his being last seen with the deceased not confessional, contrary to the position of the trial judge, there is even no reference in that statement or statements that appellant was alone with the deceased so the trial judge was wrong in concluding that appellant was alone with the deceased and proceeding to convict him on that basis. On issue 2, learned counsel submitted that the doctrine of last seen was wrongly applied by the trial judge. Relying on Mbang v.

State (2009) 12 SC (PT 111) 193 and Madu v. State (2012) 6 SC (PT 1) 80 and Igabele v. State (2006) 6 SCNJ 124, counsel submitted that the doctrine of last seen is not to be applied indiscriminately; that the doctrine will only apply where the accused person is the last to be seen with the deceased and is unable to give an explanation of how the deceased met his death.

In this case, he said, it cannot be said without equivocation that appellant was the last person to be seen with the deceased for the purpose of invoking the doctrine; that on the contrary even in their statements to the police appellant and his co-accused persons stated that they were not the last persons to be seen with the deceased, a fact counsel said was also confirmed by P.W.4 when he testified that “We arrested five people in connection with this case. The remaining three suspects were met at the scene so they were taken as eyewitnesses.

I forgot the names and were released on bail they are eyewitnessed (sic) in this case.” Counsel argued that the doctrine of last seen cannot be used as a last resort to link appellant to the death of the deceased; that for the doctrine to ground a conviction it must irresistibly and unequivocally lead to the guilt of the accused person. He said appellant gave a reasonable explanation of how the deceased met his death, namely that the deceased in his drunken state dived into the pond to swim and unfortunately got drowned.

He submitted that even though P.W.3 said the police were not satisfied with that explanation, they did not even investigate the explanation and no evidence was adduced to dislodge it. He submitted that on the contrary, the evidence of intoxication was corroborated by P.W.1 who testified that he observed that “appellants were drunk and were malingering.

One of them is holding a piya piya bottle.” Counsel submitted that, with the explanation offered by appellant regarding how the deceased met his death, the burden imposed on the appellant to proffer an explanation was adequately discharged and the burden shifted to the respondent to prove its case beyond reasonable doubt that it was indeed the accused that caused the death of the deceased.

That burden, he submitted, respondent failed to discharge so the doctrine of last seen was not available to be applied and appellant should have been acquitted. ​ On issue 3, learned counsel submitted that the lower Court failed to consider exculpatory evidence contained in the two statements (Exhibits P1 and P2) appellant made to police regarding the circumstances of the deceased’s death, namely, that the deceased dived into the pond on his own accord in his drunken state to take a swim and drowned in the process.

That is as opposed to the charge that states that he was strangled and pushed into the water by appellant and his co-accused.

Learned counsel repeated his earlier arguments that the evidence of PW4 that there were eyewitnesses to the offence supported the said explanation of appellant so the lower Court’s failure to properly evaluate appellant’s statements in arriving at his conclusion that appellant was responsible for the death of the deceased was unjustifiable and caused serious miscarriage of justice thus justifying the intervention of this Court in quashing the verdict of the lower Court convicting appellant.

Respondent’s arguments: Aisha Ado Abdullahi, Esq., for Respondent in arguing the single issue she framed submitted that all the ingredients of the offences of culpable homicide and conspiracy to commit that offence were proved by the prosecution from what counsel called the ‘circumstantial evidence’ of P.W.1. Citing State v. Raphael Sunday Ifiok (2019) LPELR-46943 (SC), learned counsel submitted that among the three methods of proof of criminal matters, namely eyewitness witness, confessional statement and circumstantial evidence, circumstantial evidence is the best and most reliable.

Counsel argued that even if one were to discountenance the evidence of P.W.2, 3 and 4, the verdict of the lower Court convicting appellant and his co-accused person would stand on the weight of the circumstantial evidence given by P.W.1 against them, particularly given the fact that appellant and his co-accused person refused to tell P.W.1 the whereabouts of the deceased even when he demanded of it from them and were rather were busy trying to steal the deceased’s motorcycle, which counsel submitted also confirms the fact of conspiracy between them.

Counsel also supported the trial judge’s reliance of the doctrine of last seen in convicting the appellant. On the argument of the appellant’s counsel regarding the prosecution’s failure to call vital witnesses, learned counsel submitted that the arrest made by P.W.4 of the State C.I.D. is not conclusive until after the advice of the Ministry of Justice, that that was why all the ‘speculated witnesses’ raised by the appellant, as Respondent’s counsel put it, were not on the Prosecution’s List of witnesses.

Learned counsel on behalf of Respondent submitted that on the basis of the foregoing arguments, the cases cited by appellant’s counsel on the prosecution’s duty to call vital witnesses and effect of failure to do so go to no issue; that if anything, it was appellant and his co-accused that raised the issue that they were with other persons in trying to rescue the deceased. More so, counsel submitted, appellant and his co-accused were even approbating and reprobating when they denied knowing each other.

Learned counsel concluded by submitting that the evidence of one single witness if cogent and reliable is enough to base conviction on and cited the cases of Ehimiyein v. The State (2017) ALL FWLR (PT 868) 728 AT 734 and Esene v. The State (2017) ALL FWLR (PT 910) 338 AT 345 S.C. P.W.1’s evidence, he said, met that benchmark so the judgment of the lower Court convicting the appellant as charged was in order. Mr.

Oredola for appellant in Appellant’s Reply Brief submitted that while it is conceded that circumstantial evidence is one of three ways of determining the guilt of an accused person, such evidence to sustain conviction must be compelling and lead to no other conclusion than that the accused person, in this case, the appellant, and no one else caused the death of the deceased. Counsel cited the case of State v.

Sunday (2019) LPELR-46943 (SC) p33-34 in support of that proposition and submitted that the evidence of P.W.1 who admitted under cross-examination that he did not know anything about the death of the deceased cannot qualify for that standard.

On Respondent’s counsel’s reliance on the trial Court’s reasoning of appellant denying knowing the deceased, as against his statement to the police Exhibits P1 and P3, learned counsel submitted that the fact that an accused person lied in Court or approbated and reprobated is not proof of his guilt. In support of that, counsel first cited the decision of the apex Court in Agbo v. State (2006) 1 SC (Pt. 11) 73 AT 79 and Dicta of Ikongbeh, JCA, of blessed memory in Ogidi v. State (2003) LPELR-10152 at p. 63-54.

Resolution of issue(s) It appears to me that the sole issue formulated by Respondent sufficiently encompasses all three issues of appellant and is enough to dispose of this appeal. I shall therefore adopt Respondent’s said sole issue in determining this appeal even as I shall rephrase it slightly to read: “Whether on the totality of the evidence before the lower Court, it was right in convicting appellant of the two offences of culpable homicide punishable with death and conspiracy to commit that offence.” That issue will involve considering all the complaints of Mr.

Ordeola for appellant including the applicability or otherwise of the doctrine of last seen relied on by the trial judge in convicting the appellant. Where a person is charged with a substantive offence and conspiracy charge, the practice is to first consider the main offence, for in most cases, the failure of the main offence also sounds the death knell of the conspiracy charge.

The substantive offence in this case is culpable homicide punishable with death. I have earlier reproduced it in this judgment. It charges appellant and one Muhammad Abdullahi with causing the death of the deceased Abubakar Shuaibu by strangulating him in the neck and pushing him into the water to drown, an offence punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria 1999.

It is Respondent’s bounden duty as the prosecution and the one asserting to prove beyond reasonable this charge as laid to secure conviction: see is what is required of it by Section 135 of the Evidence Act 2011. The 1999 Constitution of this country in its Section 36 (5) further drives that point home by stating that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.

What is more, Section 36(6) of the same 1999 Constitution states that “Every person who is charged with a criminal offence shall be entitled to: (a) be informed promptly in the language that he understands and in detail of the nature of the offence. (Emphasis mine) It needs no gainsaying that it is in an attempt to comply with the above provisions of the law regarding the details of the offence alleged committed by appellant that Respondent at the lower Court, in framing its charge against appellant and his co-accused, stated, expressly, that they not only committed culpable homicide punishable with death but that they did so by strangulating the deceased and pushed him into the water.

The ingredients of the offence of culpable homicide punishable with death are (1) that the death of a human being has taken place, (2) that such death was caused by the accused person and (3) that the act of the appellant that caused death was intentional or appellant knew that death would be the probable consequence of his act. The prosecution must prove these ingredients conjunctively and beyond reasonable doubt to secure conviction: see Ahmed v. State (2018) LPELR-46606 (CA).

It can do that through any of three means, namely direct evidence of eyewitness to the offence; by confessional statements of the accused person admitting the offence, or by circumstantial evidence. See State v. Raphael Sunday Ifiok (2019) LPELR-46943(SC).

Here, the fact of the death of the deceased Abubakar Shuaibu is not an issue, for even appellant in paragraph 4.1.4 of his main Brief of Argument conceded that fact when he said that “the Respondent was able to establish the death of one Abubakar Shuaibu.” The only sticky point, and a very sticky one for that matter, is whether respondent was also able to establish that it was the act of appellant that caused the death of the said deceased, a point appellant has always denied and still denies in this appeal.

He stated so unequivocally in the same paragraph 4.1.4 of his main Brief of Argument that: “My Lords, while “the Respondent was able to establish the death of one Abubakar Shuaibu (‘the deceased’) had occurred, it failed woefully to establish that the death of the deceased was a homicide or the precise cause of death of the deceased person.

The evidence adduced by the Respondent failed to show that the appellant was responsible or caused the death of the deceased.” That is what this appeal is all about: Did respondent prove beyond reasonable doubt at the lower Court that he (appellant) was responsible for the death of the deceased and the trial judge right in finding that it did? As already pointed out, the trial judge held appellant and his co-accused responsible on the criminal law doctrine of last seen. Now, what is the meaning of that doctrine? In Oladapo v.

State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 AT 251 Abba Aji JSC explained it thus: “This doctrine [of last seen] means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons.” (Italics mine) In the same case Nweze, J.S.C., at p.255 NWLR also explained it thus: “It [the doctrine of last seen] creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. …..

Thus, where an accused person was the last to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death.

In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he (the accused person) killed the deceased.” It must be noted, however, that the doctrine of last seen itself is nothing but circumstantial evidence, even as its effect is to shift to the accused person the burden of rebutting by acceptable explanation the presumption, which the doctrine evokes, that he who was last seen with a deceased person prior to his death is his killer.

For confirmation that the doctrine is simply what in law is called circumstantial evidence, see again Oladapo v. The State (supra), line 36-37 of page 106-17 of 2020 SCNJ and paragraph D-H of page 251 (NWLR) where it was said by Abba Aji, JSC, that: “As circumstantial as the doctrine of last seen may be …” And later that: “The respondent at the trial relied on circumstantial evidence especially the doctrine of last seen.” I think Kekere-Ekun, J.C.A. (as she then was) in Alatishe vs.

The State (2013) ALL FWLR (Pt. 686) 552 AT 575 even drove the point further home when Her Lordship said with even a further caution on the application of the doctrine thus: “Circumstantial evidence to ground the conclusion that a person last seen with a deceased is his killer must be so compelling that it leads to no other conclusion and leaves no room for acquittal.” The long and short of all the foregoing is that for the doctrine of last seen, a rebuttable one for that matter to apply, it must be shown that appellant was the last person to have been seen with the deceased person before his death, (2) that appellant could not give an explanation of how the deceased met his death, and (3) that the circumstantial evidence against the appellant is so compelling that it leaves no room for acquittal.

The doctrine thus assume, so to speak, that the prosecution itself does not have direct evidence of who and what killed the deceased and so presumes that since the suspect or accused person was the last person to be seen with him before his death, he is his killer unless the suspect can offer an acceptable explanation of how the deceased met his death. That necessarily means that, where it is shown that there were other people with the deceased person besides the accused at the time of his death, or where there were eyewitnesses to such death, the doctrine would not apply.

So, the relevant questions here are: (1) Did the evidence on record not show that there were no other persons besides appellant and his co-accused at the time of the deceased’s death and if there were, was the doctrine of last seen still applicable to the case? (2) Does the circumstantial evidence adduced before the Court by the respondent point unequivocally to the guilt of the appellant and so support the lower Court’s reasoning that he killed the deceased and so responsible for his homicide?

As regards the first of these questions, it appears to me from the records of appeal (and I am in complete agreement with Mr. Oredola for appellant on his contention) that contrary to the finding of the trial judge, even from the side of the Respondent, there were other eyewitnesses, besides appellant and his co-accused, to the manner of the death of the deceased. That is shown first by the following evidence of P.W.4: “We arrested five people in contention (sic) with this case. The remaining three suspect (sic) were met at scene so they were taken as eyewitnesses.

I forgot the names and were released on bail. They are eye witnessed (sic) in this case. … I did not see the corpse of the deceased but I saw the picture. The corpse looks like someone who was strangled and drowned in the river.

I got this information [from] eyewitness.” In further support of PW4’s assertion above, the prosecution even listed among its witness in its Proof of Evidence one Lawal Garzali and remarked thus in front of his name: “To inform the Court that he is an eye witness to all that happened between the accused and the deceased.” See page 2 of the records. ​In these circumstances, the criminal doctrine of last seen would not apply, for its very doctrinal basis, namely, that appellant and his co-accused were alone with the deceased at the time of his death and so they alone are in a position to explain the circumstances his deceased death would not arise.

Incidentally too, the prosecution did not call any of its said ‘eyewitnesses’ to the offence; not even Lawal Garzali it cited in its Proof of Evidence. Doctrine of last seen, I therefore hold and find, was inapplicable to this case and the trial judge wrong in applying it as a basis for convicting appellant. ​I am also in agreement with Mr. Oredola for appellant that the evidence of the said ‘eyewitnesses’ and particularly Lawal Garzali identified and listed by the prosecution was vital to proof of respondent’s case that appellant strangulated and pushed the deceased into the water to drown.

The evidence of those ‘eyewitnesses’ is not only vital and crucial in that it would have also helped to puncture the explanation by appellant as confirmed by both P.W3 and 4 that the deceased leaped into the water by himself in his drunken state and got drowned.

Yes, appellant who is also said in his statement to police to have mentioned names of eyewitnesses to support ‘his’ said version of how the deceased met his end (he repudiated that statement in his defence at the trial) did not also call any of the said eyewitnesses to support his version, nevertheless, the position of our law is that he is presumed innocent of the two charges and it is the duty of the Respondent to prove his guilt beyond reasonable doubt. Any omission in that regard will therefore fall against the Respondent who had the onus to discharge and not against the appellant.

What is more, it is settled law that where a particular witness is necessary to be called to prove a disputed crucial fact in a criminal case, such witness must be called by the prosecution if not its case would be deemed not proved. See Omogodo v. The State (1981) NSCC 119 AT 128-129. That is the position of the case of the prosecution which the lower Court wrongly found proved on clearly inapplicable doctrine of last seen. Its decision was perverse even on this score alone.

But even leaving aside doctrine of last seen, it seems clear to me that, contrary to the position of the trial judge, the circumstantial evidence Respondent relied on fell far short of the standard required to secure conviction in this case. While it is settled law that the Court can properly rely on circumstantial evidence in proof of a charge, it is also settled that great care must be taken by the Court in relying on circumstantial evidence as the basis for conviction.

Circumstantial evidence must be narrowly examined to avoid the possibility of fabrication to cast aspersion on innocent persons. Circumstantial evidence must not only be cogent, complete and unequivocal, it must be compelling and lead to the irresistible conclusion that the accused and no else is offender. Circumstantial must have the exactitude of mathematics to be relied on.

The facts brought out by circumstantial evidence must be incompatible with innocence of the accused and incapable of explanation of any other reasonable hypothesis than that of his guilt and any reasonable doubt in that regard must be resolved in favour of the accused. See Igabele v. The State supra. Quite unfortunately, this case seems to be a classic one of fabrication of circumstantial evidence by the prosecution to undo appellant. I shall demonstrate what I mean by that.

In his evidence before the lower Court, P.W.3 of Mariri Police Station who was involved in the search and recovery of the corpse of the deceased from the water where it was drowned, in a clear bid to give the impression that the deceased was pushed into the water by the appellant and his co-accused as he claimed he suspected and was also alleged in the charge, told the lower Court the following at p.19 of the records regarding what the deceased was wearing when his body was eventually recovered from the river and what he made of it: “If he [the deceased] really entered the water to swim he would have pulled off his clothes… That is the reason why we are not satisfied with the information the two accused persons gave us. … “At the time we recorded (sic: recovered) the remaining (sic: remains) of the deceased, he was wearing a shirt and trouser.

Yes, the pictures of the deceased was (sic) taken.” ​ I have earlier remarked that the said photographs taken by the police of the body of the deceased at the time it was recovered were initially held back by the prosecution and it was only through the dexterity of the defence counsel during cross-examination of P.W.4 that they were recovered from the prosecution and tendered in evidence, again through the defence counsel Mr. Alhassan Adam, as Exhibits P5 and P5a.

Instructively, both photographs which form part of the records of the lower Court transmitted to this Court show that the body of the deceased was recovered with him putting on only a pair of swimming trunks/boxers and not shirts and trousers as P.W.3 claimed. That much is evident from Exhibit P5 showing the deceased being brought out straight from the river with half of his legs still in the water.

It shows him as putting on only swimming trunks and not ‘shirts and trousers’ as asserted by P.W.3 who also added that the said phantom shirt and trousers the deceased was putting on when he was recovered suggested that he was pushed into the river by appellant and his co-accused person, as he ought to have pulled of his shirts and trousers before leaping into the water if the version of appellant that he leaped into the water by himself was correct.

It is thus obvious that P.W.3 merely tried frantically to fabricate a story and circumstances to rope in appellant and his co-accused in line with his unfounded belief and the charge as framed before the Court. If anything, Exhibit P5 showing the deceased dressed only in swimming trunks upon his recovery from the water supports appellant and his co-accused person’s explanation to the police (P.W.3 and 4) that the deceased jumped into the water by himself to bath, possibly in his drunken state, and drowned.

That conclusion even flows from the very hypothesis of P.W.3 that if the deceased jumped into the water by himself as asserted by appellant and his co-accused he would have ‘pulled off his clothes”. Exhibit P5 confirms that the deceased in fact pulled off his clothes and was only in swimming gear in the form of swimming trunks when he fell into the water!

Put simply, the circumstantial evidence in the form of the photographs, particularly Exhibit P5, taken by the same prosecution of the state of the dead body of the deceased at the time of his recovery from the pond, which this Court as an appellate Court also has the power to evaluate and reach on its own decision (see Alhaji Aminu Ishola v. Union Bank of Nigeria Ltd (2005) LPELR-1550(SC) P.20-21, Okpiri v. Jonah (1961) 1 SCNLR 174, Bernard Amasike v.

The Registrar General, Corporate Affairs Commission & Anor (2005) LPELR-5407 (CA) P.56-57 not only shows the lie in the story of the prosecution and its witnesses and the charge of homicide laid against appellant and his co-accused by the Respondent; it supports the explanation of appellant and his co-accused to the police that the deceased dived into the water by himself and drowned. At any rate, the law is that any reasonable doubt in circumstantial evidence must be resolved in favour of the accused. See Igabele v. The State (2006) LPELR-1441 (SC), pages 30, 37.

That appellant and his co-accused person in their defence at the trial denied their statements Exhibits P1, 2 and 3 and 4, to the police, which fact the trial made quite heavy weather of in rejecting their explanation of the circumstances of the deceased’s death and convicting them, is also of no avail to the respondent. That an accused person lied in the witness box or even has, or had, a bad image is also not proof of his guilt. See Omogodo v. State (1981) NSCC 119 AT 128. In fact, Ikongbeh, J.C.A., of blessed memory could not have put the position of the law better when he said in Ogidi v.

State (2003) LPELR-10152 at p. 63-54 that: “The law is well settled that the mere fact a person lied is not proof that he is guilty. As Hurley, C.J. (Northern Nigeria) pointed out in Haruna & Anor v.

Police (1967) NMLR 145 AT 153, though a man may lie because he is guilty, he may as well lie because he is stupid or afraid or both and whether he is guilty or not.” That appellant and his co-accused tried to break and take away the motorcycle of the deceased upon his death (there is even no concrete that the said motorcycle belonged to the deceased) is also no conclusive proof that they killed him as suggested by the prosecution and the lower Court. That is even more so when account is taken of P.W.1’s evidence that appellant and his co-accused were drunk at that point.

At any rate, much as the attempt to remove that motorcycle may support a motive by appellant and his co-accused person to kill the deceased because of his motorcycle, assuming the evidence supported that reasoning which is not the case, it is also just as possible that they simply wanted to cash in on the death of the deceased to steal his motorcycle, just as it could be that they were simply looking for a fast way to run away from the scene of his sudden death.

Such attempt to run away even from scene of crime, it has been said, does not by itself amount to proof that the person so fleeing committed the offence he is fleeing from, for it is normal and in keeping with the human instinct of self-preservation for persons, guilty or not, to flee scene of crime. See Dosunmu v. The State (1986) 5 NWLR (PT 43) 658 AT 662, Queen v. Akinsanya (1961) WRNLR 222 AT 225. At any rate, evidence based on circumstances must be interpreted narrowly and any doubt in it should be resolved in favour of the accused: see again Igabele v. The State supra.

That is just as it is also the law that where evidence is capable of two interpretations, as in this case, the interpretation favourable to the accused person should be preferred. See Omoregie v. State (2008) 35 WRN 181 AT 190. ​I shall also say that in the absence of eyewitness evidence to the alleged strangulation, it cannot be seriously asserted that it is possible to ascertain without medical evidence, that the deceased was strangulated.

Except where the deceased was seen by eyewitnesses to have collapsed and died immediately from the strangulation rope of the suspect on his neck, whether or not a person died from strangulation is a scientific fact which can only be proved by persons skilled in that area, namely medical doctors and even more specifically pathologists: see Section 68 of the Evidence Act 2011; Endurance Alison v. State (2017) LPELR-42286 (CA) 23-24, Ahmed v. State (2001) 18 NWLR (PT. 746) 622.

Incidentally, without that scientific evidence establishing death by strangulation as charged, the issue of whether it is the act of the appellant that caused the death of the deceased does not even arise. See again Ahmed v.

The State (supra) at p.641-642 where Ayoola JSC delivering leading judgment had this to say: “Where a person is charged with an offence of culpable homicide, the sequence in inquiry is whether the person alleged killed is dead, the cause of his death and whether any act of the accused as described in Section 220 is the cause of death.”… “In a charge of culpable homicide, if the cause of death has not been proved, it is futile and illogical to proceed to consider whether it was the accused who caused the death.

The primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is what caused the death and not who. When what caused the death has been ascertained the question who caused the death is one of causal connection between the death of the accused and the biological cause of death.” (Emphasis mine) ​No post-mortem report was tendered to ascertain if the deceased actually died from strangulation.

In fact, the prosecution seems to have simply founded its assertion of strangulation of the deceased and pushing him into water to drown by appellant on the speculative evidence of the Police officer from State CID, P.W4 contained at page 22 of the records when he said: “I did not see the corpse of the deceased but I saw the picture.

The corpse look(s) like someone who was strangled and drowned in the river.” A finding that a deceased person was strangulated let alone one that could and did result in a conviction for homicide punishable with death cannot be founded on such speculative evidence of a policeman who did not even claim to had any training as a physician. Like Ayoola, J.S.C., again said in Ahmed v.

State supra at p.650: “Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence.

Whatever the reason for the inadequacy of evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” (Italics mine) For all of these reasons, I am of the fixed opinion that Respondent did not prove that it is the act of appellant that caused the death of the deceased Abubakar Shuaibu. The Respondent therefore did not prove its charges of culpable homicide punishable with death and conspiracy to commit that offence against the appellant and the lower Court is wrong in convicting them as charged.

This appeal is therefore allowed and the judgment of the High Court of Kano State of 9th May, 2019 in Charge K/107C/2016 delivered by Nasiru Saminu J., convicting the appellant, including the sentence of death imposed on appellant, is hereby quashed/set aside. In their place, a verdict acquitting and discharging appellant Abdulmalik Mohammed of both charges of conspiracy punishable under Section 97 of the Penal Code Laws of Kano State of Nigeria and Culpable Homicide punishable with death punishable under Section 221 of the Penal Code Laws of Kano State of Nigeria is hereby entered.

It is further ordered that the appellant be released from custody/prison without further delay. NOTE: This appeal having been argued on 31/5/2022, judgment, ordinarily ought to have been given not later than 31st August, 2022.

Unfortunately, most of that period fell within the Annual Vacation of this Court which started from the 19th of July and only ended on 11th September, 2022, during which period I also had to attend a Court-sponsored Symposium abroad, in addition to my already very heavy workload of several other earlier pending judgments that I carried into and managed to deliver during the vacation, hence the little delay in delivery of this judgment.

ITA GEORGE MBABA, J.C.A.: A draft of the leading judgment just delivered by my learned brother, B. M. Ugo, JCA, was made available to me, ahead of time. My learned brother has, dutifully identified and discussed all the pertinent issues in the appeal, admirably, and I agree completely with him that the appeal is meritorious.

The trial Judge fell into grave error and hasty conclusion when he held that Appellant (with the co-accused) caused the death of the deceased, relying on the doctrine of last seen whereas the said doctrine could not apply in the case, in view of the facts that: (1) The evidence of PW4 had alleged that there were eye witnesses (including one Lawal Garzali), who saw all that happened between the accused persons and the deceased (before he died), which led to his death.

Such eye witness(es) needed to be called, being vital witness(es), to assist the Court to determine what/who, actually, caused the death of the deceased. And failure to call such vital eye witness was fatal to the case of the prosecution, and the presumption of law in Section 167(d) of the Evidence Act, 2011 applied that the prosecution deliberately withheld the evidence because same would expose the falsity of its position. See the case of Azubuike Vs.

The State (2019) LPELR-48238 CA, where it was held: “It is difficult to understand why the prosecution did not call the evidence of the said witness, who saw what happened, when the deceased was shot and saw the assailants. I think failure to produce the vital eye witness to give evidence at the trial can only mean that the Respondent (Prosecution) had something to hide and were not comfortable to call her to testify.

They (Prosecution) rather depended on PW1, PW2 and PW3, who came to Court to speculate on the incident, and opted to use the opportunity to implicate their immediate local enemies or opponents, those who recently had land dispute and altercation with the deceased, and they labored to give evidence to fix the Appellant at the scene of crime, even when the eye witness, who saw the shooting had said she saw the two boys who shot the husband, but did not know them!” See also Adamu Vs The State (2019) LPELR-46902 (SC), where it was held: ​”From the record, three witnesses were listed including one Benjamin James, stated as only eye witness at the scene of crime according to the evidence of PW1 but only PW1 testified.

It is true that prosecution is not obliged to call all listed witnesses nor the need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in 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.

See Section 167 (d) of the Evidence Act, 2011. Stated another way is that the vital witness is that witness whose evidence is fundamental as it determines the case one way or the other and failure to call that vital witness by the prosecution is fatal to its case.

See Ogudo v State (2011) 18 NWLR (Pt,1278) 1 at 31; State v Azeez (2008) 14 NWLR (Pt.1108).” Thus, the doctrine of last seen in criminal trial, cannot be invoked where there is evidence of an eye witness of the death and the cause of death of the deceased, outside of the Accused person(s). ​Secondly, where the charge alleged that the deceased was strangulated and pushed into the pond to drown, the ingredients of such charge must be proved, strictly, to establish the offence, and I think that can only be done by medical evidence (autopsy report), establishing the strangulation, in the absence of eye witness account.

Of course, the charge having asserted strongly that the deceased was strangulated before being pushed into the water to drown, that fact needed to be proved separately before any invocation of doctrine of last seen could be resorted to.

See Okoro Vs State (1988) LPELR-2494 SC: “…where death does not occur contemporaneously with or within a short time of the infliction of wound on the deceased, to enable the Court draw an inference that the deceased died as a result of the wound so inflicted, medical evidence establishing that the deceased’s death was caused by such wound becomes indispensable.” (dissenting) Per UWAIS, JSC. I too allow the appeal and set aside the conviction and sentence of the Appellant. I abide by other consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by my Lord. I have nothing more to add. I abide by the conclusion reached therein.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the High Court of Niger State, Coram: Mohammed S. A. Mohammed J, in Charge No. NSHC/MN/2C/2020: The State V. Goni Tijani & 5 Ors delivered on 20/10/2021. The Appellant was found guilty of Criminal Conspiracy, Culpable Homicide punishable with death and Theft contrary to Sections 97, 221 and 228 of the Penal Code and was sentenced to death by hanging and five – years imprisonment. The Notice of Appeal was filed on 15/11/2021 on six grounds of appeal.

See pages 159 – 165 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 30/12/2021. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 7/6/2022. The Notice of Preliminary objection was filed on 11/2/2022 The Appellant was represented by Clement Ezika Esq., appearing with Nicholas Asuza Esq. The Respondent was represented by Ojonimi .S. Apeh Esq., appearing with Faith Y. Nwini Esq. Before the lower Court, the Appellant and five others were charged with the following offences, namely:

1. That you Goni Tijani, Abdulkadir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja L.G.A. within the jurisdiction of this Honourable Court jointly killed one Mustapha Goni Umar Banaga and thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code to be read with Section 79 of the Penal Code Law.

2. That you, Goni Tijani, Abdulakdir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this Honourable Court conspired to kill one Mustapha Goni Umar Bamanga and thereby committed the offence of conspiracy punishable under Section 97 of the Penal Code Law, Laws of Northern Nigeria. 3.

That you Goni Tijani, Abdukadir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this Honourable Court stole a truck filled with fuel thereby committed the offence of theft punishable under Section 288 of the Penal Code Law Cap 89 Laws of Northern Nigeria. See page 6 of the Record of Appeal.

BRIEF STATEMENT OF FACT The Appellant and five other persons were charged with the offences of Conspiracy, Theft and Culpable Homicide punishable with death contrary to Sections 79, 288 and 221 of the Penal Code. They were alleged to have committed the offences on 26/7/2019 at Tunga Maje Via Suleja Local Government Area within the jurisdiction of the lower Court. They were arrested by the Police at Gada Biu Village along the Gwagwalada – Lokoja Road while they were about to sell Petroleum products inside a Truck which was allegedly stolen at the NNPC Depot, Tungan MajeSu leja.

The Truck was in custody of one Mustapha Goni Bamanga, the deceased, a night before their arrest and the body of the Mustapha Goni Bamanga was found in the morning where the Truck was parked by him and the Truck had been taken away, but which Truck was later found in the possession of the Appellant and the other five accused persons.

The Police commenced investigation into the matter and subsequently, they were all arraigned before the lower Court. for the allegedly killing the deceased, Mustapha Goni Bamanga, criminal conspiracy and theft of the truck, offences contrary to Sections 221, 97 and 288 of the Penal Code. The Respondent alleged that it was the Appellant, who was the 6th Accused person before the lower Court, together with the other five Co – Accused persons, that killed the Deceased and stole the petroleum products in the truck in his custody.

On 14/7/2020, the Appellant and his five other Co – Accused person each pleaded not guilty to each of the counts in the charges preferred against them by the State. The matter proceeded to trial. At the hearing, the Respondent called four witnesses, who testified as PW1 – PW4, and tendered some documents which were admitted in evidence as Exhibits A – L. The Appellant testified for himself and closed his defense. Each of the other five Co – Accused persons also testified for themselves and closed their defenses.

At the close of the trial, the parties filed and exchanged their final written addresses, which were duly adopted by their respective counsel on 19/7/2021. On 20/10/2021, the lower Court delivered its’ judgment in which it found the Appellant guilty as charged and sentenced him to death by hanging for Culpable Homicide and five – years imprisonment for Theft, hence this appeal. See pages 159 – 165 and 243 – 284 of the Record of Appeal. ISSUES FOR DETERMINATION In the Appellant’s brief, five issues were distilled as arising for determination from the six Grounds of Appeal to wit: 1.

Whether the lower Court was right when he held that from reasonable inference and irresistible conclusion that the accused persons and nobody else killed the deceased, stole the vehicle and petrol therein? (GROUND ONE). 2. Whether the prosecution proved its case beyond reasonable doubt as required by law (Grounds 2 and 3). 3. Whether the Court below was right when he held that non-recording of the statement of the appellant in Hausa language before translating same to English version and non-tendering of the two statement is immaterial to the case (Ground 4) 4.

Whether the Appellant can be convicted of the offence of conspiracy in view of the trial Courts ruling that the whole idea of the crime was conceived nurtured and executed by the 1st accused person (Ground 5) 5. Whether the trial Court was right when he held that the Appellant can be convicted solely on his positive and direct confessional statement with the circumstantial evidence and testimony of other witnesses.

In the Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, to wit: “Whether having regards to the evidence adduced by the Respondent, the lower Court was right to hold that the Respondent proved beyond reasonable doubt the case against the Appellant as required by law to warrant the conviction and sentence passed on the Appellant?” ​ I have taken time to consider the Charges laid against the Appellant and the evidence led by the Respondent in proof thereof as well as the evidence led by the Appellant in his defense.

I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court as in the Record of Appeal. I am of the firm view that the proper issue for determination in this appeal is the sole issue as distilled in the Respondent’s brief, a consideration of which, in my view, would invariably involve a consideration of the three issues as distilled in the Appellant’s brief.

However, I shall consider the Respondent’s sole issue together with all the Appellant’s five issues and resolve them in one fell swoop. But first there is a Notice of Preliminary Objection challenging the competence of the appeal, which being in the nature of jurisdictional issue shall be considered first and resolved one way or the other before proceeding, if need be, to consider the merit of the appeal.

NOTICE OF PRELIMINARY OBJECTION By a Notice of Preliminary Objection filed on 11/2/2022, the Respondent is challenging the competence of this appeal and praying that it be dismissed on the grounds that the five grounds of appeal are too general in terms and or not based on the reasons for the decision appealed against; that there are alleged errors in law and misdirection in the same grounds without specifying the nature of error and the misdirection as required by law; that the appeal is academic as well as an abuse of Court’s process, and this Court cannot assume jurisdiction to hear and determine this appeal that did not challenge the decision of the lower Court on live issues in controversy between the parties.

RESPONDENT’S COUNSEL SUBMISSIONS In his submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the Respondent had submitted inter alia that the grounds of appeals are just mere quotations from the judgment of the lower Court without showing in specific terms the errors and or misdirection complained of and contended that they are vague, verbose, argumentative and disclosed no reasonable grounds as required by law and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent.

Counsel referred to Order 7 Rule 2 (2) and 3 of the Court of Appeal Rules 2021, and relied on Elendu V. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 AT p. 719, Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258) 214 AT p. 223, Mark Onochie Oduah V. Federal Republic of Nigeria (2012) LPELR-9220(CA) AT Pp. 22 – 23, Uwazuruike V. Nwachukwu & Ors (2012) LPELR – 15353 (CA), Olufeagba V. Abdur Raheem (2009) 18 NWLR (Pt. 1173) 384, NNPC V. Aminu (2013) LPELR – 21396 (CA), Faluyi & Ors V. Ogunseye & Ors (2019) LPELR – 48015 (CA), Action Peoples Party V. Yahaya Bello & Ors (2020) LPELR – 50167 (CA) AT Ppp. 17-18.

It was also submitted that the particulars in support of the grounds of appeal are either narrative, argumentative or independent of those grounds ad contended that even if the grounds of appeal as vague are taken to be competent, the appeal is merely academic and an abuse of Court’s process in that the grounds of appeal did not challenge the reasons for the decision having not challenged the circumstantial evidence relied upon by the lower Court as compelling and mathematically pointing to the Appellant and the five Co – Accused persons as having committed the offences for which they were charged ad urged the Court to hold that the Appellant having not appealed against the findings of the lower Court of having committed the offences with which he was charged, no utilitarian value can be conferred on the Appellant by the success of this appeal since he would still be bound by the findings not appealed against and thereby amounted to an abuse of Court’s process and ousting the jurisdiction of this Court and to strike out the Notice of Appeal for being incompetent.

Counsel relied on UTC Nigeria Limited V. Pamotei (1989) 2 NWLR (Pt. 103) 244, Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387, Ede V. Omeke (1992) 5 NWLR (Pt. 242) 428, Dakar V. Dapal (1998) 10 NWLR (Pt. 577) 573, Sama’ila V. The State (2021) LPELR – 53084 (SC), Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 571) 573, Nze V. Aribe (2016) LPELR – 40617 ((CA), Ossai V. FRN (2013) 13 WRN 87, Shettima V. Goni (2012) 18 NWLR (Pt. 1279) 413, Ajibulu V. Ajayi (2013) LPELR – 21860 SC; CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493, COP Imo State V. Michael Ekweribe & Anor (2018) LPELR – 43949 (CA), Ugba V.

Suswam (2014) 14 NWLR (Pt. 1427) 264 AT pp. 313 – 314, Plateau State of Nigeria V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, Abubakar V. Yar’ Adua (2008) All FWLR (Pt. 404) 1409 AT p. 1437, SPDC (Nig.) Ltd. V. Edamkue (2009) All FWLR (Pt. 489) 407 AT p. 430, Oke V. Mimiko (No. 1) (2014) 3 NWLR (Pt. 1388) 225 AT p. 265, Endurance Ebee V. The State, (2022) LPELR – 56586 (CA), Oteki V. AG. Bendel State (1986) LPELR – 2823 (SC), Chief Frank Ebba V. Washi Ogodo and Anor (1984) 4 SCNLR 372; Chibuzor V. FRN (2017) LPELR – 41852 (CA).

APPELLANT’S COUNSEL SUBMISSIONS In his submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the grounds of appeal are neither vague nor merely generic but rather are concise, distinct and does not contain any argument and contended that the grounds of appeal not only attacked the decision of the lower Court convicting the Appellant but also raised reasonable grounds of complaints against the judgment of the lower Court and urged the Court to hold that the real essence of grounds of appeal, which is to give to the other party and the Court, the grouse of the Appellant against the judgment appealed against, was complied with as the grouse of the Appellant were well understood by the Court and the Respondent and to dismiss the preliminary objection, which was a mere university thesis with no shred of reality in it and to proceed to consider and determine the appeal against a conviction and sentence to death, a capital punishment, on the merit.

RESOLUTION OF PRELIMINARY OBJECTION My Lords, in considering the grounds of the preliminary objection challenging the competence of all the six grounds of appeal in the Notice of Appeal, I think the first port of call is the complaints in these grounds of appeal whose competence are being challenged by the Respondent.

I shall therefore take the liberty to reproduce the grounds 1, 2, 3, 4, 5 and 6 but without their particulars as follows: GROUND 1: The learned trial judge was not right with due respect when he held as follows: “From the evidence before me the reasonable inference and irresistible conclusion is that the accused persons and nobody else killed the deceased, stole the vehicle and the petrol therein.” GROUND 2: ERROR IN LAW The learned trial judge with due respect erred in law when he held that the prosecution proved its case beyond reasonable doubt.

GROUND 3: ERROR IN LAW The learned trial judge erred in law with respect when the Court held as follows: “I hold that the statement of the accused persons are positive direct and consistent and lead to one inference and conclusion that they both conspired and killed Mustapha Goni Bamanga, stole both the truck and the petrol therein.” GROUND 4: ERROR IN LAW The learned trial judge erred in law when he held as follows: “The defense that the accused persons made their statement in Hausa and the Hausa Version was not tendered lacks legal consequences in that the recorders of the statement, who understand Hausa language were in Court and told the Court how the statement were recorded” GROUND 5: ERROR IN LAW The learned trial judge erred in law when he held that as follows: “It is also my humble view that the whole idea of this crime was conceived, natured and executed by the 1st Accused person.

The sole motive was to steal the patrol and sell same” GROUND 6: ERROR IN LAW The learned trial judge erred in law when he held that the Appellant can be convicted solely on his positive and direct confessional statement together with the circumstantial evidence and the testimony of other witnesses. Now, In ground one, the Appellant challenges the conclusion reached by the lower Court that it is the Appellant and his Co – Accused persons and no one else that killed the deceased, stole the truck and petrol therein.

In grounds two, three and five, the Appellant challenges the conclusion reached by the lower Court that the Respondent proved its case of conspiracy, theft and culpable homicide beyond reasonable doubt solely on the confessional statement of the Appellant. In ground 4, the Appellant challenges the decision of the lower Court to convict the Appellant on extra-judicial statement which did not comply with the requirement of the law as to its being taken and translated into the language the Appellant understands.

In ground 6, which was not even challenged by the Respondent, the Appellant challenged his conviction on the basis of circumstantial evidence in the absence of any eyewitness account of the incident. ​ The contention of the learned counsel for the Respondent is that these grounds are nebulous, vague, argumentative and did not disclose the nature of the complaints of the Appellant against any of the decisions, particularly the finding of guilt and sentence, in the judgment appealed against so as to give sufficient notice of and the precise nature of the complaints to the Respondent.

The Appellant would hear none of this and had vehemently contended that the grounds of appeal were not only concise and precise and against the findings of guilt of the Appellant and therefore, disclosed reasonable complaints against the conviction and sentence of the Appellant but that the grounds of appeal clearly contend that both the conviction and sentence of the Appellant by the lower Court in the judgment appealed against were wrong in law.

My Lords, I have taken time to look critically at each of the six grounds of appeal, along with their particulars as set out thereunder, and without considering at this stage their merits or demerits, I find that in each of these six grounds of appeal together with the particulars thereof, the Appellant did gave sufficient notice and information of the precise nature of his grouse and or complaints against the finding of guilt, conviction and sentence of the Appellant by the lower Court to both this Court and the Respondent. See Chief Austine Oguejifor & Anor V.

Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA. In law, the real essence of a ground of appeal, is to give sufficient notice and information of the precise nature of his grouse and or complaints against the judgment appealed against. It is not how detailed a ground of appeal is but rather how concise and precise it states clearly the grouse against the findings and decisions in the judgment appealed against.

There is nothing patently wrong in setting out in quote or otherwise some of the passages in the judgment appealed against that is alleged to be either an error, whether of law and or fact, or a misdirection and setting out in the particulars thereof the alleged error or misdirection. In some cases, and it is permissible in law, a ground of appeal could as well contain the particulars without setting them out separately, and that alone will not render such a ground of appeal incompetent. See Order 7 Rule 2(2) and (3) of the Rules of the Court of Appeal 2021.

My Lords, indeed, there is no way a dispassionate look at grounds 1, 2, 3, 4, 5 and 6 together with the particulars, and in an appeal against conviction and sentence to death, can be described as vague or general in terms and thus incompetent. In law, all that is required of an Appellant by the Rules of this Court, in articulating his grounds of appeal, is to give sufficient notice and information as to the precise nature of his complaint to the Respondent.

Thus, once a ground of appeal satisfies that purpose, as I find present in grounds 1, 2, 3, 4, 5 and 6 of the grounds of appeal, it is competent, valid and cannot be described as vague or general in terms. See Dyeris V. Mobil Oil (Nig.) Plc (2010) 1 NWLR (Pt. 1175) 309 AT P. 329. See also Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA.

Now, the rules relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side, and the primary purpose of which is is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant. Thus, any ground of appeal that satisfies that purpose, such as grounds, 1, 2, 3, 4, 5, and 6 in the Appellant Notice of Appeal, should not and cannot be struck out as vehemently bit clearly erroneously contended by the learned counsel for the Respondent. See Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253.

See also Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA. In the circumstances therefore, I find no iota of merit in the preliminary objection challenging the competence of grounds 1, 2, 3, 4 and 5 on the misconceived and erroneous ground that they are nebulous, vague and imprecise and thereby rendered merely academic as well as constituting an abuse of Court’s process, none of which they are.

On the contrary they are precise, concise and disclosed very reasonable basis in law for them to be considered and determined on the merit. It is rather, and I must confess, the Respondent’s grounds of preliminary objections, which I had to struggle to make some sense out of them, that are in themselves so disjointed, vague and rambling. In the circumstances therefore, I hold that the preliminary objection fails and it is hereby overruled and dismissed. I shall proceed to consider the merit of the appeal anon!

SOLE ISSUE “Whether having regards to the evidence adduced by the Respondent, the lower Court was right to hold that the Respondent proved beyond reasonable doubt the case against the Appellant as required by law to warrant the conviction and sentence passed on the Appellant?” APPELLANT’S COUNSEL SUBMISSIONS In his submissions on his issues one, three and five for determination, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it convicted the Appellant solely on the alleged confessional statement together with the circumstantial evidence and the testimony of other witnesses since the alleged confessional statement did not pass the test of the standard required by law and contended that the extra-judicial statement of the Appellant recorded in English language, and which version was tendered in evidence, rather than in the Hausa language which the Appellant understands, was both wrongfully admitted in evidence as Exhibits G, G1 and Z and relied upon by the lower Court and used solely to convict the Appellant in the absence of any corroborative evidence contrary to the requirement of the law and urged the Court to hold that this failure leading to the wrongful conviction of the Appellant had occasioned a grave miscarriage of justice against the Appellant and to allow the appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant.

Counsel relied on Adeyemi V. State (2013) 3 NWLR (Pt. 1340) 79 AT pp. 88 – 89, Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 AT p. 819, State V. Azeez & Ors (2008) 4 SC 188, Saidu V. State (1982) 4 SC 41, Agbi V. Ogbeh (2006) 11 NWLR (PT 990) 65 AT p. 119, Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156.

In his submissions on his issue two for determination, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that in law it is the duty of the Respondent to prove all the ingredients of the offences charged beyond reasonable doubt and contended that the Respondent failed to prove that the Appellant caused the death of the Deceased or conspired to cause the death of the Deceased as there was no eye witness who gave any evidence linking the Appellant with the commission of the alleged offences and urged the Court to hold neither the death nor the cause of death of the Deceased was proved by the Respondent as required by law since there was no evidence of any autopsy or any medical report was tendered, coupled with the lower Court not observing the body of the Deceased and to allow the appeal and set aside the judgment of the lower Court founded on mere speculation and contradictory stories as to both the death and cause of death of the Deceased and to discharge and acquit the Appellant.

Counsel referred to Section 135 – 138 of the Evidence Act 2011, and relied on Osumare V. People Of Lagos State (2014) All FWLR (Pt. 757) 605; Edoho V. State (2004) 5 NWLR (Pt. 865) 17 AT pp. 45 – 46; Edun V. FRN (2019) 13 NWLR (Pt. 1689) 326 AT p. 339.

In his submissions on his issue four for determination, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that in law the lower Court cannot convict the Appellant solely on the offence of conspiracy because the Respondent failed to lead any evidence as to where, when and how the Appellant conspired with other Co – Accused persons to commit the offence of conspiracy and contended that the coincidental meeting of the Appellant with the other Co – Accused persons was not to commit an offence either to steal the truck and the petroleum products inside as there was no evidence linking the Appellant with any attempt to sell the petroleum products in the Truck contrary to the perverse finding of the lower Court and to allow the appeal, set aside the perves judgment of the lower Curt and discharge and acquit the Appellant.

Counsel relied on Oke V. FRN (2017) 4 NWLR (Pt. 1556) 473 AT p. 496.

RESPONDENT’S COUNSEL SUBMISSIONS In his submissions on the sole issue for determination, which I have taken time to review in its entirety, learned counsel for the Respondent had submitted inter alia that the lower Court was right when it held that the Respondent proved beyond reasonable doubt the charges laid against the Appellant as required by law to warrant his conviction and sentence on the irresistible and compelling circumstantial evidence supported by the statement of the Appellant pointing to and proving beyond reasonable doubt the guilt of the Appellant as rightly found by the lower Court and contended that on the evidence it was clearly proved that the Appellant and his Co – Accused persons were arrested at Gada Biu while they were attempting to sell the fuel in the truck where the Deceased, late Mustapha, who was last seen inside the said truck at Tunga Maje a night before the incident was killed and his body was found lying at where the truck vehicle was stolen with its contents and urged the Court to hold that in law the only reasonable, irresistible and compelling inference is that it is the Appellant and his Co – Accused persons, having failed to explain how they had lawfully come about the truck of the deceased and the contents therein, and no one else, that killed the Deceased and stole the truck with the petroleum contents therein and to dismiss the appeal for lacking merit and affirm the conviction and sentence passed on the Appellant by the lower Court.

Counsel relied on Okpako V. State (2018) LPELR – 43875 (SC), Sani V. State (2017) LPELR – 43475 (SC), Uzor V. State (2014) 12 NWLR (Pt. 1422) 548, Esseyin V. State (2018) LPELR – 44476 (SC), Sylvester Umukoro V. The State (2020) LPELR – 52649 (CA) AT pp. 12 -13, Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT pp. 24 – 25, Uyo V.

AG of Bendel State (1986) LPELR – 3452(SC) 20.

It was also submitted that it was not a mere coincidence that the Appellant and the Co – Accused persons were found with the truck of the Deceased who had been killed and not only were the Appellant and the Co – Accused persons found with the truck of the Deceased but they were in the process of selling the petroleum contents therein when they were arrested by the Police with both the truck and the petroleum contents therein and contended that in the circumstances it was left for the Appellant and his Co – Accused persons caught with both the truck and the contents therein hitherto under the custody of the Deceased, found dead, to explain how they lawfully come by both the truck and the petroleum contents they were attempting to sell but they failed to do so and urged the Court to hold that the lower Court was right to have found them guilty on such irresistible and compelling circumstantial evidence and the absence of any eye witness account was therefore, in law of no moment and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. ​ It was further submitted that it was too late in the day for the Appellant to attempt to appeal against the interlocutory ruling on admissibility of Exhibit A delivered on 8/2/2021 by the lower Court without the prior leave of this Court to do so out of time, and contended that on the entirety of the evidence led the Respondent proved all the ingredients of the offences with which the Appellant was charged and urged the Court to hold that with the undisputed evidence of the Appellant and his Co – Accused found in possession of the Truck of the Deceased and were about selling the petroleum contents before they were arrested by the Police, coupled with their failure to explain how they lawfully came into possession of these properties, in law they were rightly presumed by the lower Court to be those whole stole the truck and the petroleum contents and killed the Deceased under whose custody these properties were before his death and to dismiss the appeal for lacking merit and affirm the sound judgment of the lower Court.

Counsel referred to Section 167(a) of the Evidence Act 2011, and relied on The State V. Usen Okon Ekanem, (2016) LPELR – 41304(SC) AT p. 21, Semiu Afolabi V. The State (2013) 13 NWLR (Pt. 1371) 292 AT p. 319, Aliyu V. The State (2013) LPELR – 20748 (CA), Elina Shide V. The State, (2018) LPELR -45038 (CA), Malami Mohammed V. The State (2018) LPELR – 46561(CA), Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 AT p. 325, Sanni – Omotosho V. Obidairo (2014) LPELR – 23006 (CA).

APPELLANT’S COUNSEL REPLY SUBMISSIONS In his reply submissions, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the Respondent failed to prove all the ingredients of the case since there was no witness that testified that he saw or was at the scene of commission of the alleged offence and contended that the circumstantial evidence relied upon by the Respondent needed corroboration as it was not overwhelming and urged the Court to hold that the inference made by the lower Court was merely speculative, more so when there was no properly admissible statement of the Appellant before the lower Court and to expunge the extra-judicial statement of the Appellant and allow the appeal, set aside the perverse judgment of the lower Court and discharge and acquit the Appellant in all the charges.

RESOLUTION OF THE SOLE ISSUE My Lords, the sole issue for determination, which is the sole issue as distilled in the Respondent’s brief, deals directly with the question whether or not the Court below was right when it held that, on the evidence both oral and documentary placed before it by the parties, the Respondent proved its case of Criminal Conspiracy and Culpable Homicide punishable with death and theft as alleged against the Appellant and his Co – Accused persons beyond reasonable doubt as required by law and for which it convicted and sentenced the Appellant to death by hanging and 5 years imprisonment?

However, in law proof beyond reasonable doubt does not mean proof beyond all shadow of doubts. See Section 135 of the Evidence Act 2011. See also Miller V. Minister of Pensions (1974) 2 All ER 372, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Nkebisi V. State (2010) 5 NWLR 421, Ndidi V. The State (2007) All FWLR (Pt. 338) 1617 AT P. 163, Omotola V. The State (2008) 2 FWLR (Pt. 418) P. 2190, Udosen V. The State (2007) 4 FWLR (Pt. 381) 5721.

I thought I should proceed with the known position of the law that we sitting here as appellate justices, who have not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the lower Court on matters of facts and we are not ready to substitute our own views for that of the lower Court, which saw and heard the witnesses testify and also, but very crucially, observed their demeanor unless and except where it is shown that the conclusion and or finding reached by the Court below was perverse. See Saeed V.

Yakowa (2013) All FWLR (Pt. 692) 1650 AT P. 1681. See also Clement Ofoni V. State (2021) LPELR – 55642 (CA) per Sir Biobele Abraham Georgewill JCA, Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 AT P. 19. Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 AT P. 1302. Let me commence the consideration of the sole issue for determination by reproducing the relevant provisions of the Penal Code under which the Appellant was charged along with his Co – Accused persons by the Respondent and found guilty and sentenced by the lower Court.

By Section 221 of the Penal Code, it is provided as follows: “Except in the circumstances mentioned in Section 222, Culpable Homicide shall be punished with death. a) If the act by which the death is caused is done with the intention of causing death, or b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.

By Section 97 of the Penal Code, it is provided as follows: “Whosoever is a party to a Criminal Conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a Conspiracy shall be punished in the same manner as if he had abetted such offence.” By Section 83 of the Penal Code, it is provided as follows: “Whoever abets any Criminal Offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law form the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence.” And, by Section 288 of the Penal Code, it is provided as follows: “Whoever commit Theft from or in or from any building, tent or vessel, which building is used as a human dwelling or used for custody of property or in or from any railway carriage lorry omnibus or aircraft used for the conveyance of passengers or goods shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.” Now, in a Count alleging Criminal Conspiracy, the law is that the Respondent, being the Prosecution before the lower Court, was under the duty to prove beyond reasonable doubt, though not beyond any fanciful doubt, by credible and cogent evidence all the following essential elements of the offence of Criminal Conspiracy, namely: that there was an agreement between two or more persons;

the agreement was to do or cause to be done some illegal act or legal act by illegal means and that the individuals participated in the agreement with each other, accused persons.

See Garba V. COP (2007) 16 NWLR (Pt. 1060) 378 AT p. 405. See also Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA, Clement Ofoni V. State (2019) LPELR – 48803 (CA) per Sir Biobele Abraham Georgewill JCA.

Thus, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In law, 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 to do a lawful act by unlawful means and thus so long as a design rests in intention only it is not indictable.

But, when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA. See also Odunayo V. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, Mulcahy V. R (1868) 3 H.L. AT p. 317, Patrick Njovens & Ors V. The State (1973) 5 S.C. 17, Daboh & Anor V.

The State (1977) 5 SC.197.​ The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed.

Thus, in most cases the proof of conspiracy is generally a matter of inference deduced from certain criminal acts of accused persons done in pursuance of an apparent criminal purpose in common between them.

In law, since direct evidence of conspiracy is rare to find in most cases, though possible to find in some few cases, the following guide may be used in arriving at whether or not the evidence led by the Prosecution established the offence of conspiracy, namely: The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design; There may be one person who is the hub around whom the others resolve; A person may communicate with ‘A’ and ‘A’ with ‘B’, who in turn communicates with another and so on.

This is called the chain conspiracy. See Black’s Law Dictionary, Ninth Edition AT p. 351. See also Taofeek Adeleke V. State (2013) 16 NWLR (Pt. 1381) 556 AT p. 584, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA; Kaza V. State (2008) 7 NWLR (Pt. 1085) 125.​ Thus, in order to establish the offence of conspiracy, it is not necessary that the conspirators should or must know each other so long as they know of the existence and the intention or purpose of the conspiracy.

However, it must be pointed out at once that the facts to be relied upon by the Court for conviction for conspiracy must be consistent, cogent and must irresistibly lead to the guilt of the Accused persons. See Emeka Obodochina V. The State (2021) LPELR – 55562(CA) per Sir Biobele Abraham Georgewill JCA. See also Erim V. The State (1994) 5 NWLR (Pt. 346). See also Oladejo V. The State (1994) 6 NWLR (Pt. 348) 101, Alegba & Ors V. The King (1950) 19 NLR 129, Francis Tole Lawson & Ors V. The State (1975) 1 All NLR 175 AT pp. 181 – 182, Silas Sule V.

The State (2009) 17 NWLR (Pt. 1169) 33, Benson Obiakor & Anor V. The State (2002)10 NWLR (Pt. 776) 612.

Now, in a Count alleging Culpable Homicide punishable with death, the law is that the Respondent was under the duty to prove beyond reasonable doubt, though not beyond every shadow of doubt or to the hilt, by credible and cogent evidence all the following essential elements of the offence of Culpable Homicide punishable with death, namely: that the death of the deceased, that the death of the deceased was caused by the Appellant, and that the act or omission of the Appellant that caused the death of the deceased was intentional, with the knowledge that death was the probable or likely consequences of the act.

See Section 221 of the Penal Code. See also Timothy Abu V. The State (2022) LPELR-56902(CA) per Sir Biobele Abraham Georgewill JCA, Deriba V. The State (2016) LPELR – 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Michael V. The State (2008) LPELR-1874 (SC) AT p. 20, Isma’il V. The State (2011) LPELR-9352, Dare Kada V. State (1991) 8 NWLR (Pt. 208) 134 AT p. 154.

In a count alleging theft under Section 287 and 288 of the Penal Code, the Respondent was under a duty to prove, by credible evidence beyond reasonable doubt, all the essential ingredients of the offence of theft, namely: that the property in question is a movable property, that the property was in possession of a person, that the Accused person moved the property whilst in possession of the person, that the Accused person did so without the consent of that person, that he did so in other to take the property out of the possession of that person, and that he did so with intent to cause wrongful gain to himself or wrongful loss to that person.

See Babagana Grema V. The State (2020) LPELR – 51432 (CA). So, what then are the pieces of evidence led by the parties, the Respondent as Prosecution and on whom the burden of proof beyond reasonable doubt strictly lies and never shifts, and the Appellant, whose innocence is presumed until proved guilty, on counts 1, 2 and 3 with which the Appellant was charged before the lower Court below and on which it reached its conclusions that the Appellant was guilty on all the counts and convicted and sentenced him accordingly?

Now, by an Amended Charges brought pursuant to an application dated 13/7/2020, the Appellant and his Co – Accused persons were alleged to have committed the offences of Conspiracy, Culpable Homicide, and Theft, contrary to Sections 97, 221 and 288 of the Penal Code respectively. On 14/7/2020, the Appellant pleaded not guilty to each of the three counts as alleged against him. The Respondent proceeded, in proof of its case against the Appellant, to call four witnesses. PW1, was one Inspector Ahmad Hamza. His evidence is at pages 185 – 187 and 205 – 206 of the Record of Appeal. PW2 was one Sgt.

Angulu Pada. His evidence is at pages 192 – 194, 208 – 209 and 220 of the Record of Appeal. PW3 was one Sgt. Irimiya Pakachi. His evidence is at pages 210 – 213 of the Record of Appeal. PW4 was one Aliyu Usman. His evidence is at pages 2213 – 216 and 220 of the Record of Appeal. The Respondent tendered some documents, mainly the extra-judicial statements of the Appellant and his Co – Accused persons, which were admitted in evidence as Exhibits A – L. The Appellant testified in his defense. His evidence is at pages 235 – 237 of the Record of Appeal.

All the Co – Accused persons also testified in their own defense. My Lords, I have taken time to review, re-evaluate and consider the entirety of the evidence led by the parties as in the Record of Appeal in the light of the essential ingredients of all the offences with which the Appellant was charged and the findings and conclusions reached thereon by the lower Court.

It was on the strength of the above pieces of evidence, both oral and documentary as led by the parties and as in the Record of Appeal that the Court below delivered its judgment on 20/10/2021, and convicted the Appellant on all the three Counts and sentenced him to death and five – years imprisonment. See pages 243 – 284 of the Record of Appeal.

In law, it is the Respondent that has the unshifting burden of proving the essential elements of the offences of Criminal Conspiracy, Culpable Homicide and Theft as to both the physical elements and the mental elements, as earlier set out, of each and all of the offences with which the Appellant was charged. It follows therefore, a failure on the part of the Respondent to prove any or all of the essential elements that constitute these offences with which the Appellant was charged would be fatal to the charges, which would then not have been proved as required by law. See Godwin Igabele V.

The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 -11 SC 81, Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. However, in law in proving its case against an Accused person, the Prosecution has open to it three basic types of evidence, each of which is sufficient by itself, with which to prove its case beyond reasonable doubt and to secure the conviction of the Accused person, and they include Direct Eye Witness Account, Confessional Statement and Circumstantial Evidence.

See Mohammed & Anor V. The State (2007) LPELR – 1894 (SC). See also Deriba V. State (2016) LPELR – 40345(CA), per Sir Biobele Abraham Georgewill JCA, Oko V. The State (2021) LPELR – 56328 (CA) per Sir Biobele Abraham Georgewill JCA. See also Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81, Buba V. The State (2016) LPELR – 40201 (CA).

I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the lower Court and once that Court discharges that duty satisfactorily on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct. See Edman V. The State (2021) LPELR – 55754 (CA) per Sir Biobele Abraham Georegwill JCA. See also Ogunniyi V.

The State (2012) LPELR – 8567(CA), Amadi V. FRN (2011) Vol. 9 LRCNCC 177 AT pp. 179 -180, Afolalu V. The State (2012) Vol. 10 LRCNCC 30 AT P. 40, Aiguokhian V. The State (2004) 7 NWLR (Pt. 873) 565, Ubierho V. State (20…) 2 SC (Pt.1) 18 AT pp. 21 – 22, Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 AT P. 198. The Respondent, it would appear going by the evidence as in the Record of Appeal, relied principally on both circumstantial evidence and the extra-judicial statement of the Appellant in prove of its case against the Appellant.

The lower Court found the circumstantial evidence to be compelling and irresistible coupled with the statement of the Appellant and convicted him as charged. The learned counsel for the Appellant had vehemently contended that there were neither any compelling and irresistible circumstantial evidence nor admissible extra-judicial statement of the Appellant to warrant the inference drawn by the lower Court and the perverse conviction and sentence of the Appellant.

It was argued forcefully for the Appellant that at best what the lower Court relied upon were mere speculation, which cannot form the basis of conviction in law.

The learned counsel for the Respondent would hear none of these and had equally contended vehemently that the circumstantial evidence were so compelling and irresistibly pointed at none other than the Appellant and his Co – Accused person, as rightly found by the lower Court, as the persons who conspired, killed the Deceased and stole the petroleum products in the truck hitherto in the custody of the Deceased, who was found death, coupled with the properly admitted extra-judicial statement of the Appellant admitted in evidence after a trial within trial.

So, what in law is circumstantial evidence and were the circumstantial evidence, if any led against the Appellant, so compelling and irresistible and pointed to none other than the Appellant as one of the persons who committed the offences of Criminal Conspiracy, Culpable Homicide and Theft as alleged by the Respondent? In other words, did the Respondent proved its case against the Appellant as required by law and was the lower Court right or wrong when it convicted and sentenced the Appellant as charged?

In law, circumstantial evidence is the proof of circumstances from which, according to the ordinary course of human affairs, the existence of some fact may reasonably be presumed. It is that evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is as good as, sometimes even better than, any other form of evidence in the sense that it amounts to circumstances which are accepted as to make a complete and unbroken chain of evidence.

Interestingly, circumstantial evidence is regarded, very often, as the best evidence. It is therefore, not a derogation of evidence, as many defense lawyers are wont to think, to say that a piece or pieces of evidence is circumstantial. See Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT Pp. 24 – 25, Uyo V.

AG of Bendel State (1986) LPELR – 3452(SC) 20. ​ There is no doubt, in my mind, that before the lower Court, save the extra-judicial statement of the Appellant, there was no direct eye witness account of how the Deceased met his death and who killed the Deceased. However, in law where there is no direct evidence linking the cause of death to the act of an Appellant, the fact of death can be established by evidence of surrounding circumstances. See Joseph Lori V. The State (1980) LPELR – 1794 (SC). See also Stephen Ukorah V. The State (1977) LPELR – 3345 (SC), Amaechi V.

The State (2014) LPELR 22499 (CA).

Now, from the extra-judicial statement of the Appellant, whose admissibility or otherwise in law I shall return to consider, which is consistent with the facts as led in evidence by the Respondent of the action and activities of the Appellant and his Co – Accused persons, including being found in possession, as it is said at common parlance, ‘red hand’ of the truck which was hitherto just the previous night in the custody and possession of the Deceased as well as attempting to sell the petroleum contents therein before their arrest by the Police, it seems clear to me, and as was rightly held by the lower Court, that the Appellant was amongst the persons who conspired and killed the Deceased and stole the truck under his custody and possession and attempted to sell the petroleum products therein before they were caught ‘red handed, by the Police.

This inference is both compelling and irresistible leaving nothing to chance that it was indeed the Appellant and some other persons, as alleged by the Respondent, and none other than that indeed agreed to and did cause the death of the Deceased, stole the truck and petroleum contents therein and attempted to sell off the petroleum contents therein before they were arrested. ​ These pieces of evidence of the entire surrounding circumstances had by undersigned coincidence, which the learned counsel for the Appellant referred to as mere coincidence, was capable of and indeed proved the proposition that it was the Appellant and the other persons as alleged by the Respondent, that conspired and killed the Deceased in order to steal the truck and petroleum products therein in his custody for the purpose of selling the same for their wrongful gain with the accuracy of mathematics.

These pieces of evidence, though circumstantial because no one saw or testified to seeing the Appellant and his confederates do so, as good as, if not better, than, any other form of evidence in the sense that it amounts to circumstances which are accepted as to make a complete and unbroken chain of evidence. See Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V.

State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT Pp. 24 – 25, Uyo V. AG of Bendel State (1986) LPELR – 3452(SC) 20. In relation to the offence of Theft as alleged against the Appellant and his Co – Accused persons, the admitted evidence before the lower Court was that they were caught ‘red handed’ by the Police at Gada Biu along the Gwagwalada – Lokojo Road while attempting to sell the petroleum contents of the truck, both of which clearly does not belong to the Appellant and or any of his Co – Accused persons.

So, what else was needed to be led in evidence to prove the commission of the offence of theft against the Appellant? None I can fathom!

I think and I so firmly hold that the lower Court was perfectly right when it held that at the time the Appellant and his Co – Accused persons were arrested attempting to sell off the petroleum products inside the truck they had earlier disposed the Deceased of, the offence of theft had been consummated and was clearly proved by direct and positive evidence, coupled with the strong legal, though rebuttable but which was not rebutted in any way, presumption against the Appellant that once a stolen property is found in somebody’s possession immediately after the theft, that person is either the thief or a receiver of the stolen property.

See Section 167(a) of the Evidence Act 2011, which provides as follows: “The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.” See also Evarist Eze V. The State (1985) LPELR – 1189 (SC), The State V. Usen Okon Ekanem, (2016) LPELR – 41304 (SC) AT P. 21, Semiu Afolabi V. The State (2013) 13 NWLR (Pt. 1371) 292 AT P. 319, Aliyu V. The State (2013) LPELR – 20748 (SC), Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 AT p. 325.

I had earlier observed that there was no direct eyewitness account of how the Deceased met his death but that the evidence of the cause of death need not in all circumstances be direct. In other words, the cause of death of the Deceased can be proved by evidence of surrounding circumstances, which simply is called circumstantial evidence in law.

Thus, where the Deceased is shown by the evidence to have died on the spot after the attack, as in the instant case, even medical evidence could be dispensed with since the lower Court can, both legitimately and justifiably, infer the cause of death from the facts and surrounding circumstances as led in evidence before it.

There was therefore, in my view and I so hold, going by the evidence of the cruel fate that befell the Deceased and leading to his death as demonstrated in the evidence as in the Record of Appeal, would hardly be any issue as to the cause of death to becloud the determination of the real question of who, and no longer what, caused the death of the Deceased.​ It follows therefore, in law that there exist instances where medical evidence may be dispensed with in the proof of the cause of death of the deceased, but such evidence must be capable of showing that the death of the deceased occurred instantly or contemporaneously with the act of the Accused person.

In the instant appeal, I am satisfied that the death of the Deceased occurred contemporaneously when on the night of 26/7/2019 at Tungan Maje Via Suleja, the Appellant and his Co – Accused persons tied the Deceased on both of his legs and hands and eventually tied a rope or belt round his neck until he was dead, and therefore, whether there was direct evidence or medical report or not, there was really no necessity for any medical direct or medical evidence of his cause of death. See Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA.

See also Frank Onyenankeya V. State (1964) LPELR – 25198 (SC). My Lords, it is true that the Appellant testified that he came to Abuja from Zamfara though he pushes Wheel Barrow in Lagos but his money got finished in Abuja and whilst he was looking for assistance, he saw the 5th Accused person who also wanted to go to Lagos but also had no money on him. Later, they met the 1st and 3rd Accused persons, who offered to give them a lift up to Gada Biu, where they intend to sell some fuel and assist them with some money.

It was in the process of selling the fuel that they were arrested by the Police. However, though this evidence at the trial was clearly an afterthought, yet he was not able to explain his role in the possession of the truck with the other Accused persons and attempting along with them to sell the fuel contents therein at Gada Biu along the Gwagwalada – Lokojo High Way where he was arrested by the Police.

There was no iota of doubt that at the time the Appellant was arrested the Deceased had died and his body was later discovered whilst both the truck and its contents hitherto under his custody had been stolen, or at least taken away from him whilst he lay dead.

On the proved circumstances therefore, I cannot but agree with the submissions of the learned counsel for the Respondent that the lower Court was right, and I too find that it was indeed right, when it held that from the evidence before it the only reasonable inference and irresistible conclusion is that the Appellant and his Co – Accused persons and nobody else killed the Deceased, stole the truck and the petroleum contents therein, which they had attempted to sell off before they were arrested by the Police.

Indeed, the circumstantial evidence was very overwhelming, compelling and irresistible. In law, for circumstantial evidence to ground conviction, it must be positive, compelling, direct and link the Accused person with the offence charged. These findings by the lower Court, on the face of the very clear and compelling and irresistible circumstantial evidence, cannot be faulted at all. I affirm it to be correct. See Okpako V. State (2018) LPELR – 43875 (SC). See also Sani V. State (2017) LPELR – 43475 (SC), Uzor V. State (2014) 12 NWLR (Pt. 1422) 548, Esseyin V.

State (2018) LPELR – 44476 (SC), Sylvester Umukoro V. The State (2020) LPELR – 52649 (CA) AT pp. 12 -13.

In its judgment delivered on 20/10/2021, the lower Court had, in convicting the Appellant, as well as his Co – Accused persons on the three Counts as charged by the Respondent, stated inter alia thus: “From the statements of the Accused persons which is consistent with the facts of this case and the evidence produced by the Prosecution, it is clear that the Accused persons conspired and killed the deceased, stole the truck and attempted to sell the fuel which was inside the truck when they were arrested by the Police at Gada Biu.

It is also my humble view that the whole idea of these crimes was conceived, natured and executed by the 1st Accused person. The sole motive was to steal the petrol and sell same. That can only be done by killing the driver of the vehicle who was in custody of the truck that has the fuel. The statement of all the accused persons gave a graphic detail of how the dastardly act was conceived, natured.

That was the instruction of the 1st Accused person who was afraid of being exposed by the deceased if he survived the attack.” I think, and I so firmly hold, that the lower Court was right in its findings as above! ​ Now, having held as above that the circumstantial evidence was compelling, overwhelming and irresistibly pointed to none other than the Appellant and his Co – Accuses persons as the clear perpetrators of the dastard acts of conspiring to and indeed killing the Deceased and stealing the petroleum contents of the truck in his custody and possession, which they attempted to sell off before they were arrested, let me now consider the legal position of the extra-judicial statement of the Appellant, as to whether or not it was properly admitted in evidence and also relied upon by the lower Court.

The extra-judicial statements of the Appellant and his Co – Accused persons were each admitted in evidence as Exhibits A – L. The extra-judicial statement of the Appellant was not part of the trial within trial as it was not objected to when it was tendered as having not been made voluntarily. In the above circumstances therefore, I would take it that the said statement having been admitted in evidence was clearly legal evidence that can be acted upon by the lower Court to either make finding of facts or to corroborate any other legal evidence led by the Respondent.

There was therefore, nothing in law militating against or inhibiting its use by the lower Court to make proper finding of facts as it did in its judgment. See P. C. Adeusi Adesina V. The People of Lagos State WRN 622 per Eko JSC.

However, assuming but not so deciding that the issue of the admissibility or otherwise of the extra-judicial statement in evidence by the lower Court was still an outstanding live issue or could even be raised for the first time in this appeal, I have considered the submissions of learned counsel for the parties and reviewed the circumstances surrounding both the recording of the extra-judicial statement as well its tendering by the Respondent and admission in evidence by the lower Court. ​ Now, the Appellant and his Co – Accused persons, each made his Statement to the Police in Hausa language but the Hausa version was not tendered.

However, there is evidence in the Record of Appeal that the Recorders of the Statements, who understand Hausa language testified to how the Statements were recorded. Specifically, PW1, one Inspector Ahmad Hamza testified inter alia that he recorded the statement of the Appellant. He cautioned him in Hausa and he volunteered his statement in Hausa but he recorded it in English and read same over to them in Hausa language and they each understood before they affixed their thump print thereon. He counter-signed as the Recorder in English language.

With the above evidence and coupled with the trial within trial, I hold that when the Recorder of an extra-judicial statement from a suspect was also the interpreter of the statement, then in law there would be no any need for the Recorder to record two different version of the said statements and the but recorder, acting also as the interpreter can directly record the statement in the language of the Court but must read it over and interpret same in the language that the suspect understand and in which it was made.

Thus, it is the law that when a Police Officer records the statement of a suspect who does not understand English but the Recorder understands both languages, he should record such statement in English so long as he testifies to this procedure at the trial. This is so because such a Police Officer is both the interpreter and recorder. He therefore plays the dual role of an interpreter and recorder, and in such a circumstance, the statement so made and recorded is admissible, once it has been duly proved.

This was the procedure adopted and what transpired as was testified to by the PW1, who was not shaken in his cross-examination and was therefore, rightly believed by the lower Court. See Asuquo Vs. The State (2016) LPELR- 40597 (SC). See also R. V. Oguewu (1949) 12 WACA 483, Okon V. State (2019) LPELR – 47476 (CA), Sunday V. State (2014) LPELR – 24415(CA), Queen V. Zakwakwa of Yaro (1960) 1 NCC 8, Nwali V. State (1991) 3 NWLR (Pt.182) 663 Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 AT pp. 819 – 820, Adeyemi V. State (2012) LPELR-7956(CA).

In the light of all I have found and stated above, the sole issue is hereby resolved against the Appellant in favor of the Respondent. On the whole therefore, having resolved the sole issue against the Appellant in favor of the Respondent, I hold that the appeal lacks merit and is thus, liable to be dismissed. Accordingly, this appeal is hereby dismissed. In the result, the judgment of the High Court of Niger State, Coram: Mohammed S. A. Mohammed J, in Charge No. NSHC/MN/2C/2020: The State V. Goni Tijani & 5 Ors delivered on 20/10/2021.

The Appellant was found guilty of Culpable Homicide punishable with death contrary to Section 221 of the Penal Code and was sentenced to death by hanging and five – years imprisonment, is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I read in draft, the judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA. I am in agreement with the reasoning and conclusion that the appeal lacks merit. I adopt the reasoning as mine and I hold that the appeal is lacking in merit and it is hereby dismissed. I abide by all the consequential orders laid out in the lead Judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA. I agree with the reasoning expressed therein and the decision arrived at in this appeal. I adopt those reasonings as mine and dismiss the appeal for lack of merit and affirm the judgment of the trial Court. I abide by the consequential orders.

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

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kogi State in case No. AHC/1C/2019 delivered by A. N. Awulu, J. on 29th April, 2020.

The Appellant was charged and convicted on 2 counts charge for the offence of Criminal Conspiracy contrary to Section 97(1) of the Penal Code Law and offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code Law.

The Appellant, dissatisfied with the judgment of the trial Court, approached this Court by a Notice of appeal filed on 20th May, 2020. Counsel on both sides filed relevant processes as required by the rules of the Court and the Appeal was heard on 4th March, 2021.

​A. O IGEH appearing with A. A AKOR for the Appellant adopted and relied on the Appellant’s Brief of Argument filed on 4th August, 2020. He urged the Court to allow the appeal. IBRAHIM SANI MUHAMMED, SAN appearing with HABIB ABDULLAHI; MARYANN OTARU; OJOMA ETUBI; NTIMA BABIU for the Respondent adopted and relied on the Respondent’s brief of argument filed on 17th September, 2020. In the Appellant’s brief of argument settled by A. O. IGEH, ESQ., 2 issues were formulated for determination as follows: 1.

Whether having regard to the evidence on record and the standard of proof, the lower Court rightly convicted the Appellant on the 2 counts of charges. 2. Whether the lower Court properly evaluated the evidence on record and whether its decision is not unreasonable, unwarranted and liable to be set aside.

​In the Respondent’s brief of argument prepared by A. W. ZAKARI, ESQ a sole issue was raised for determination thus: Whether or not the trial Court was not right when it held that the prosecution proved beyond reasonable doubt the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 (c) and 221 (a) of the Penal Code against the Appellant.

The two issues distilled by the Appellant tantamount to the sole issue raised by the Respondent. I shall therefore resolve the sole issue formulated by the Respondent in the determination of the appeal to avoid repetitions.

SUBMISSIONS ON SOLE ISSUE The learned counsel for the Appellant submitted that on the offence of culpable homicide punishable by death, the prosecution did not discharge the burden of proof, having failed to prove the essential ingredients of the offence of culpable homicide and consequently, the Appellant is entitled to an order of discharge and acquittal. He cited the case of KOLADE V. STATE (2017) 8 NWLR (PT. 1566) 60 at 144-115

The learned counsel conceded to the fact that Ibrahim Yakubu referred to in the charge is dead but submitted that the prosecution did not link the cause of the death of the deceased to the Appellant. He relied on: OCHE V. STATE (2007) 5 NWLR (PT. 1021) 2014; ILIYASU V. STATE (2014) 15 NWLR (PT. 1430) 245 and EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354.

The learned counsel analyzed the testimonies of the witnesses and submitted that the prosecution was unable to prove that no person other than the Appellant committed the offence having regard to the evidence on record.

On the offence of criminal conspiracy, the learned counsel submitted that the prosecution did not prove the essential element of criminal conspiracy against the Appellant.

​On the evaluation of evidence by the trial Court, the learned counsel contended that the trial Court failed to properly evaluate the evidence before it. It was further submitted that the trial Court failed to resolve the doubts raised on the prosecution’s evidence in favour of the Appellant.

It is the contention of the Appellant that prosecution did not cross-examine the DW1 and is deemed to have admitted the evidence of DW1. The learned counsel reproduced some part of the judgment of the trial Court; demonstrated and analyzed the evidence of the witnesses in submitting that the trial Court believed the prosecution’s evidence without evaluating the evidence. He urged the Court to allow the appeal.

Mr. Abdullahi for the Respondent reproduced the ingredient of the offence of culpable homicide; he demonstrated with the evidence of prosecution’s witnesses and the Exhibit tendered at the trial Court in submitting that the Appellant committed the offence charged and that the trial Court properly found the Appellant guilty and convicted him accordingly.

On the contention of the Appellant that the Respondent did not cross-examine DW1, the learned counsel submitted the prosecution is not duty bound to cross-examine all the defence witnesses so long as the ingredient of the offence charged have been successfully proved. The learned counsel urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE Culpable homicide is defined in Section 220 of the Penal Code. It reads: “220. Whoever causes death: (a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or (b) by doing an act with the knowledge that he is likely by such act to cause death; or (c) by doing such a rash or negligent act, commits the offence of culpable homicide. Generally, homicide means the killing of one person by another. In other words, it is the act of purposely, knowingly, recklessly, or negligently causing the death of another human being.

While culpable homicide means a wrongful act that results in a person’s death, it does not amount to murder. See: UMARU ADAMU VS THE STATE (2014) 10 NWLR (PT. 1415) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) ALL FWLR (PT. 733) 1938.

​To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt: (a) That the person the accused person is charged of killing actually died; (b) That the deceased died as a result of the act of the accused person; (c) That the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. See: STATE V. JOHN (2013) 1 NWLR (PT. 1368) P. 337; TUNDE ADAVA & ANOR VS. THE STATE (2006) 9 NWLR (PT. 984) 152; (2006) 3 SCM 1, (2006) 2 SC (PT. 11) 136; MAIKUDI ALIYU VS.

THE STATE (2013) 12 SCM (PT. 2) 195; BELLO V STATE (2007) 10 NWLR (PT. 1043) 564; OLADELE V NIGERIA ARMY (2004) 6 NWLR (PT. 868) 166, AKPA V THE STATE (2007) 18 NWLR (PT. 1019) 50; UBANI V THE STATE (2003) 18 NWLR (PT. 851) 24, BAKARE V THE STATE (1987) 1 NWLR (PT. 52) 579. It must however be noted that all the above three ingredients of the offence must necessarily co-exist and none must be lacking. Where one is missing or not established, it means that the prosecution has simply failed to discharge the burden of proof that the law places on her in order to succeed with the charge.

See: GALADIMA V. STATE (2017) LPELR-43469(SC); DANBABA V. STATE (2018) LPELR-43841 (SC).

​In the instant suit which gave rise to this appeal; on the proof of the offence of culpable homicide under Section 221 of the Penal Code as reproduced above. It is not in dispute that Ibrahim Yakubu died on 16th November, 2017. On the proof of other ingredients of the offence of culpable homicide, the duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. See: AKIBU V. STATE (2019) LPELR-47630 (SC).

The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See: STATE V. JAMES GWANGWAN (2015) 13 NWLR (PT.1477) 600, AT 621, PARAS B-E PER OKORO SC. See also YONGO V. COMMISSIONER OF POLICE (1992) LPELR-3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (PT.257) 36; OGUNDIYAN V. THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (PT.181) 519, ALONGE V.

IGP (1959) 4 FSC 203; IBRAHIM V, THE STATE (2015) 11 NWLR (PT. 1469) 164 AT 192, PARAS A-B.

By the record before me, PW1 in his examination in chief as contained at pages 18 and 19 of the record of appeal, said that Ibrahim (the deceased) told him that his brother Shekuru called him to meet him at Otondo and under cross-examination said that the scene of crime was along the road at Otondo, he further said that he was not present at the scene when the crime was committed.

The PW2 in his evidence said that between 7.00 pm and 8.00pm he had a dispute with his wife and reported to his father-in-law who failed to caution his daughter. He said that he called his elder brother Ibrahim Yakubu (deceased) and informed him of the dispute with his wife, while waiting for his arrival his neighbour one Alhaji Ibrahim Adejor helped to resolve the dispute.

According to PW2 upon the arrival of his brother, Alhaji Ibrahim Adejor informed him that he had resolved the issue and while seeing his brother off Idris Tijani; Suleiman Tijani; Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit his brother with sticks. Upon cross-examination PW2 said that the scene of crime was on the road separating their compound. His testimony is contained at pages 20 and 21 of the record of appeal.

​PW4 in his testimony stated as follows: “I have been an investigator for eight years; I visited the scene of crime. The scene of crime was Okenyi Uboji in Ankpa. The police was led to the scene of crime by the complainant. The scene of crime was not on the major road but in a dwelling place with many access routes”.

The DW2 on his own testified as follows: “My name is Tenimu Tijani. I live at Uboji, I am a farmer. I know Yakubu Momoh. I know Ibrahim Yakubu, the deceased. I know the defendant. The defendant is my son. My daughter was married to Shekuru. At about 7.30pm, the said Shekuru began to beat my daughter married to him. I heard her screams and wailings but I did not enter their compound. Soon after, Shekuru came to my house. Immediately he came, he asked me to come and take away my daughter from his house. Initially, I began to laugh, He repeated his request.

I told him I was going to do no such thing. We began to exchange words and insults. After a while, people intervened and each person went his way. Thereafter, he made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Soon after, some persons came on three motorcycles in attempt to hit my children, the people struck the deceased with a stick. Shekuru wanted to escape but I insisted he took away the deceased. I followed them to the hospital. The deceased died after three days on hospital admission.

The defendant was present at home when Shekuru was making trouble and inviting people to come to his rescue. The defendant went to Isiaka Jibrin in his room to ask for torchlight so as to identify the victim lying on the ground following the crisis. When he flashed the torchlight he saw and said it was Ibrahim the deceased.”

DW2 was not cross-examined. The Appellant testified as follows: “My name is Idris Tijani. Before my detention I was living at Okenyi, Uboji. I am a farmer and a commercial motorcyclist. I did not kill Ibrahim Yakubu. On the fateful day, we were gathered in our compound. My sister came crying and told my father that her husband assaulted her. My father sent for her husband. Her husband Shekuru came and my father asked him why he beat up his wife. Her husband Shekuru (i.e. pw2) began to insult my father.

My younger siblings asked him why he was misbehaving to our father after assaulting our sister. Shekuru said we were planning to jointly attack him and began to make phone calls to some persons. After a while some persons came ridding three motorcycles, it was already getting dark around 8pm to 9pm. On arrival, they began to rain insults. Those who came include Shekuru, Yunusa and Ibrahim. The other five persons, I did not see their faces. I went to my brother Isiaka Jibrin to collect a torchlight since it was dark. On my way back, I saw Ibrahim lying on the ground.

I was not there when they fought and I do not know why he was lying on the ground. It was Shekuru that took Ibrahim Yakubu to the hospital. On sighting the police in our compound after the incident, I had to run away to avoid indiscriminate arrest. Cxxn: I did not run away because I killed Ibrahim Yakubu but I did so to prevent indiscriminate arrest as police usually do. It was when I sighted the police that I ran away. I was arrested eight months after the death of lbrahim Yakubu. I was arrested at Okura in Dekina Local Government Area.

On failure to cross-examine a witness on a material point, the Supreme Court in OLA V. STATE (2018) LPELR-44983 (SC) held that: “Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence.” The Supreme Court also, in YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC) held thus: “The evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct, I completely agree” See also, the cases of: DAHIRU V.

STATE (2018) LPELR- 44497 (SC); SIMON V. STATE (2017) LPELR-41988 (SC); PATRICK V. STATE (2018) LPELR-43862 (SC); IFEDAYO V. STATE (2018) LPELR-44374 (SC); OLA V. STATE (2018) LPELR-44983 (SC); LANRE V. STATE (2018) LPELR-45156 (SC).

From the records, the Respondent did not cross-examine DW2. Consequently, from the above decisions of the Supreme Court, I hold that the Respondent accepts the truth of the matter as led in evidence by the DW2. The DW2’s evidence having been accepted as the truth of the matter by the Respondent, I shall base my resolution of this sole issue on his evidence.

DW2 testified that at about 7.30 pm, the PW2 began to beat his daughter married to him and after sometime PW2 came to ask him to come and carry his daughter and they began to exchange words and insults, after which the PW2 made a phone call intimating his people that his in-laws were beating him and that they should come to his rescue. Let me pause here and revisit the testimony of the PW1 who said that Ibrahim (the deceased) told him that his brother Shekuru was calling him to meet him at Otondo. This piece of evidence supports the evidence and testimony of DW2.

DW2 further testified that soon after, some persons came on three motorcycles and started a fight but in an attempt to hit his children, they struck the deceased with a stick. The PW2 wanted to escape but he (DW2) insisted he took away the deceased. The fact that the Respondent chose not to challenge the testimony of the DW2 who is an eyewitness is of great significant.

​I have carefully considered the evidence of both the Appellant and the Respondent with their witnesses at the trial Court; it is not in controversy that PW2 had misunderstanding with his wife who happened to be the Appellant’s sister. There was a resulting fight between PW2, the deceased and some others on their side; and the Appellant with some other members of his family. The fight involved the use of sticks as weapons, which incident occurred around 7.00pm to 8.00pm. The deceased died as a result of the fight as he was hit with stick.

The dispute is as to who hit the deceased with stick that led to his death. The question that ensues is whether the prosecution proved beyond reasonable doubt that it was the Appellant who hit the deceased with a stick which caused his death?

From the evidence of the Respondent before me, the Respondent failed to establish how he identified the Appellant as the person who struck the deceased with a stick. The evidence on record is that it was dark and the incidence was in a dwelling place. There is no evidence on record as to whether the fight took place inside an enclosure or outside but in the DW1’s compound.

Furthermore, the unchallenged evidence on record that the Appellant went into his brother’s room to collect torchlight from him to be able to identify who was lying down on the floor is conclusive of the lighting situation at the scene of crime at the time of the crime. This piece of evidence which was not controverted, in my view, establishes the light situation of the scene of crime at the time of the crime; which is to say it was dark that no one could identify the other without the aid of light.

This was a dangerous scenerio as one could mistakenly hit a member of his team fighter in an attempt to hit an opponent. This impresses on the mind, the uncontroverted evidence of the DW2 that it was the people who Shekuru the deceased’s brother invited for the fight that hit the deceased in an attempt to hit his children and also that Shekuru (PW2) wanted to leave his deceased brother where he fell to escape but for his intervention.

Having in mind that this piece of evidence was not challenged by cross-examination and for the analysis I have made, I hold that if the trial Court had well evaluated the accepted evidence of the DW2, the same would have created serious doubt in its mind as to who struck the deceased with stick that led to his death.

Curious again is, why the Appellant and his siblings would allegedly attack the deceased instead of PW2 who had just beaten up their sister and insulted their father (DW2). If the evidence of the PW2 which was discredited by the evidence of the Investigating Police Officer as to the scene of crime is anything to be considered, then the prosecution failed to fill the gap as to why the appellant and his siblings who allegedly suddenly appeared armed with sticks began to hit the deceased with sticks leaving Shekuru (PW2) who apparently had issues with them untouched.

This again ought to have created doubt in  the mind of the trial Court as to who hit the deceased and which doubt ought to have been resolved in favour of the Appellant.

I accordingly hold that the trial Court failed to properly evaluate the evidence before it and particularly the defence of the Appellant. Also, the Respondent failed to prove all the ingredients of the offence of culpable homicide having failed to establish beyond reasonable doubt that the Appellant caused the death of the deceased.

On the offence of criminal conspiracy. Section 96(1) of the Penal Code defines criminal conspiracy. It reads: “96(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, such an agreement is called a criminal conspiracy.” See OGU v. COP (2017) LPELR-43832 (SC). The Supreme Court in defining conspiracy held in AWOSIKA v.

STATE (2018) LPELR-44351(SC) as follows: “It is pertinent to say that the word “conspiracy” has been described in Mulcahy vs R (1968) 3 HC at 377 when Willes J of House of Lords stated 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 to do a lawful act by unlawful means. So being as a design rest in intention only it is not indictable.

When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus centra acins, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (emphasis supplied by me). See also. cases of Patrick Njovens & Ors vs The State (1973) 5 SC 17; Dabo & Ors vs The State (1994) 5 NWLR (Pt. 346) 535.

It is now settled law, that the offence of conspiracy can most of the time, only be established through inferences of common design or agreement by two or more persons to do or not to do a criminal act. The offence of conspiracy is seldom capable of being proved through direct evidence, but is largely established through inferences from the act or action of the parties thereto, which said act was focused towards realization or achieving a common or natural criminal purpose.

See, ODUNEYE V THE STATE (2001) 1 SC (PT. 1) 1 AT 617, GODWIN (ISIENEI) CHIANUGO V STATE (2001) FWLR (PT. 74) 242 AT 251; KENNETH CLARK & ANOR VS THE STATE (1986) 4 NWLR (PT. 35) 381; MUSA V THE STATE (2005) FWLR (PT. 262) 343 AT 353/354″.

The offence of conspiracy is complete once a concluded agreement exists. The parties must agree that a course of conduct shall be pursued which will definitely amount to or result in the commission of an offence by one or more of the parties to the agreement. There must be a criminal purpose that the parties share as their common purpose. See: NDOZIE v. STATE (2016) LPELR-26067 (SC); ADEJOBI & ANOR V. STATE (2011) 6-7 SC (PT. 11) P. 65, (2011) 12 NWLR (PT. 1261) 347; STATE V. SALAWU (2001) 12 SC (PT. IV) P. 191, (2011) 18 NWLR (PT. 1279) 580.

​To secure a conviction in a charge for criminal conspiracy the Supreme Court in OGU V. COP (2017) LPELR-43832 (SC) held thus: “The prosecution must prove: (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 act besides the agreement was done by one or more of the parties in furtherance of the agreement; and (c) that each of the accused persons individually participated in the conspiracy. See: YAKUBU V.

THE STATE (2014) 8 NWLR (PT. 1408) 111 @ 123 F H; TANKO V. THE STATE (2009) 16 NWLR (PT. 1114) 597.”

Therefore, in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed. It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused. See: YAKUBU V. THE STATE (SUPRA); OBIAKOR V, THE STATE (2002) 10 NWLR (PT. 776) 612; ODUNEYE V.

THE STATE (2001) 2 NWLR (PT. 697) 311; NJOVENS V. THE STATE (1973) 5 SC 17; DABOH V. THE STATE (1977) 5 SC 197.

The Appellant in his defence testified thus: ‘I went to my brother Isiaka Jibrin to collect torchlight since it was dark.’

DW1 also testified in favour of the Appellant thus: ‘Thereafter, I went to Isiaka Jibrim to intimate him of what was happening outside. There, I met the defendant asking for torchlight from Isiaka Jibrin’.

DW2 also testified in favour of the Appellant thus: ‘the defendant went to Ishiaka Jibrin in his room to ask for a torch so as to identify the victim lying on the ground following the crisis’

The only testimony of PW2 in proving criminal conspiracy is that: “While seeing him off, Idris Tijani, Suleiman Tijani, Nasiru Tijani, Mohammed Tijani Angulu suddenly appeared armed with sticks and began to hit my brother with sticks. I began to scream and some people rushed to the scene”.

​This piece of evidence was debunked by the prosecution herself when the Investigating Police Officer said the crime did not take place on the road but in a dwelling place. This means the appellant and his siblings could not have suddenly appeared from nowhere with sticks to attack the deceased leaving out the PW2 who beat up their sister and insulted their father.

The evidence of the PW2 who was the only eyewitness having been discredited by the prosecution; cannot be believed to the extent that the appellant and his siblings emerged with the common agreement to fight or kill someone who from the totality of the evidence before the Court had no dispute with them. The Respondent did not create via her evidence, the circumstance on which the Court could draw inference.

Rather, from the unchallenged evidence of DW2 which the law mandates the Court to accept, it was the PW2 and the people he invited through phone call to aid him in a fight that had a common intention to fight the DW1 and his family in DW1’s premises. I do not therefore agree with the learned trial Judge that the Respondent proved the offence of criminal conspiracy against the Appellant beyond reasonable doubt. I resolve the issue in favour of the Respondent.

​Consequently, I hold that the appeal is meritorious and the same is consequently allowed.

I quash the conviction and sentence of the Appellant by the trial Court entered on 29th April, 2020 by A. N Awulu, J. in Case No: AHC/1C/2019.

I discharge and acquit the Appellant on the offence of culpable homicide and criminal conspiracy.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA. I agree with the decision of my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of a preview of the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in agreement with the reasoning and conclusion contained therein that the appeal is meritorious.

​In consequence, I also allow the appeal and abide by the orders made therein.