ILUONO v. STATE (2020)

ILUONO v. STATE

(2020)LCN/14190(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/56C/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ONYEKA ILUONO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THERE IS A LAW THAT MAKES MANDATORY THE PRACTICE OF TAKING AN ACCUSED PERSON BEFORE A SUPERIOR POLICE OFFICER TO CONFIRM THAT HIS CONFESSIONAL STATEMENT WAS MADE VOLUNTARILY

Let me reiterate that there is no law which makes mandatory the practice of taking an accused person before a superior police officer to confirm that his confessional statement was made voluntarily. While it is a desirable practice, it has no force of law. Failure to take an accused person before a superior police officer to confirm the voluntariness or otherwise of his confessional statement will not affect its admissibility or credibility. See EHIMIYEIN VS. THE STATE (2016) 16 NWLR (PT. 1538)173; TOPE VS. THE STATE (2019) 15 NWLR (PT. 1695)289; AND AJIBOYE VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1637) 430. PER OJO, J.C.A.

ESTABLISHMENT OF AN ATTEMPT TO COMMIT AN OFFENCE

The law is that to establish “attempt to commit an offence” the prosecution must prove more than mere intention. The act of the accused must be immediately connected with the commission of the real offence and more than preparation for the commission of the offence. See OKAFOR VS. STATE (2016) 4 NWLR (PT. 1502) 248; OSETOLA & ANOR VS. STATE (2012) 17 NWLR (PT. 1329) 251 ANDSHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73. PER OJO, J.C.A.

THE CRIMINAL OFFENCE OF ARMED ROBBERY

The offence of attempted robbery is committed where any person while having the intention to steal, assaults the other person, uses or threatens to use actual violence against him with a view to obtain the thing intended to be stolen from him. To secure a conviction for the offence, the prosecution has a duty to prove the offence beyond reasonable doubt.
See Section 135(1) of the Evidence Act which provides thus:
“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.” PER OJO, J.C.A.

MEANING OF PROOF BEYOND REASONABLE DOUBT
I wish to reiterate that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. The burden is discharged once the prosecution proves the elements of the offence charged. See ALIYU VS. THE STATE (2019) 11 NWLR (PT. 1682) 108; AHMED VS. THE STATE (2001) 18 NWLR (PT. 746) 622; DAWAI VS. THE STATE (2018) 5 NWLR (PT. 1613) 499 AND MOHAMMED VS. THE STATE (2018) 5 NWLR (PT. 1618) 540.
InSTATE VS. MUSA (2020) 2 NWLR (PT. 1709) 499 AT 517, PARAS. D-G, Kekere-Ekun JSC held as follows: “For the offence of attempted robbery, Section 2(1) and of the Robbery and Firearms (Special Provisions) Act provides as follows:
“2(1). Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of such assault, uses or threatens to use actual violence to any other person or any property, in order to obtain the thing intended to be stolen shall upon conviction under this Act, be sentenced to imprisonment for not less than fourteen years but not more than twenty years.
If
(b) at or immediately before or immediately after the time of the assault, the offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act, be sentenced to imprisonment for life.”
The ingredients which the Prosecution is required to prove thus includes:
(i) that there was an attempt to rob by the accused but he was stopped in the process or that he attempted to abet the commission of the offence.
(ii) that the accused was armed or was in the company of any person who was armed.
(iii) that the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged.
See TOPE VS. STATE (SUPRA); OSETOLA & ANOR VS. THE STATE (2012) 17 NWLR (PT. 1329) 251; OSUNG VS. THE STATE (2012) 18 NWLR (PT. 1332) 256 AND SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73. PER OJO, J.C.A.

ESTABLISHMENT OF PROOF OF COMMISSION OF AN OFFENCE

The law is trite that the commission of an offence may be proved by any or a combination of the following ways:
(a) Extra-judicial Statement of the Accused Person;
(b) Circumstantial Evidence linking the Accused Person to the crime;
(c) Evidence of an eye-witness. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court sitting in Abeokuta delivered in charge No. AB/4R/2014 on 21st November 2016.

The Appellant was arraigned before the lower Court on the 9th of October 2014 on a two-count charge of conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation 2004 and Armed Robbery contrary to Section 2(2)(a) of the Robbery and Firearms Act,

He pleaded not guilty to the two counts and at the close of evidence and Counsel’s written addresses, the learned trial judge found him guilty on both counts of the charge and held as follows at page 120 of the Record:
“In conclusion, the accused is hereby pronounced guilty as charged and is sentenced as follows:
On Count I, by law the punishment for the offence of conspiracy to commit armed robbery upon which I find the accused guilty is a mandatory one for which I have no discretion to exercise. Accordingly, on Count 1, the sentence of this Court upon you, Onyeka Iluono is that you be hanged by the

neck till you be dead and may the Lord have mercy on your soul.
On count II, you are hereby sentenced to 14 years imprisonment”

Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal on 30th January 2017 which notice was with leave of Court amended. The Amended Notice of Appeal filed on 19th December 2017 was deemed properly filed and served on 21st of November 2018.

In compliance with the Rules of this Court, parties filed and exchanged their Briefs of Argument. The Appellant’s Brief of Argument filed on 19th of December 2017 was deemed properly filed and served on 21st of November 2018. The Respondent’s Brief of Argument filed on 24th September 2019 was deemed properly filed on 23rd January 2020.

Learned Counsel to the Appellant formulated the following issues for determination in the Appellant’s Brief of Argument:
(i) Whether or not the learned trial Judge was right when he failed to advert his mind to the glaring contradictory and conflicting evidences of the prosecution witnesses (PW1, PW2, PW3).
(ii) Whether or not the learned trial Judge was right when he convicted and sentenced the

Appellant for attempted robbery based on materially contradictory and mysterious evidence of PW3 and inadmissible Exhibit H.
(iii) Whether or not the learned trial Judge was right when he convicted and sentenced the Appellant to death for conspiracy to rob, based on materially contradictory and manifestly unreliable evidences of PW1-PW3 and inadmissible Exhibits B, B1, B2, G12-G15 and H.

For his part, learned Counsel to the Respondent formulated a sole issue for determination to wit:
Whether from the totality of evidence adduced at the trial, the Respondent has proven the offence of conspiracy to commit Armed Robbery and Attempted Robbery against the Appellant considering Exhibit H and the defence of alibi.

When the Appeal was heard on the 10th of March 2020, learned Counsel to the Appellant adopted the Appellant’s Brief of Argument and urged us to allow his appeal. Learned Counsel to the Respondent adopted the Respondent’s Brief of Argument as his oral arguments in urging us to dismiss this appeal.

Upon a perusal of the issues formulated on behalf of the parties, I believe the following lone issue would

suffice:
“Whether the prosecution placed before the lower Court sufficient credible evidence to sustain the charge of conspiracy to commit armed robbery and attempted robbery against the Appellant.”

It is the position of learned counsel to the Appellant that the prosecution failed to prove his case against the Appellant beyond reasonable doubt by credible evidence. He submitted there are material contradictions in the evidence of the prosecution witnesses on the time and place of arrest of the Appellant. He submitted that while PW1 testified the Appellant was arrested in a hideout that cannot be described as a place of residence, PW2 said he was arrested in his house while PW3 said he was arrested in the bush. He submitted further that PW1 approbated and reprobated on the date of arrest. He said in one breadth, PW1 said the Appellant was arrested on 26th June 2012 and in another breadth, he stated he was arrested on 24th June 2010.

He went on to identify contradictions in the evidence of PW3 and urged us to hold that the learned trial judge erred when he held that there were no material contradictions in the evidence of the

prosecution witnesses and went on to convict him on such unreliable evidence. He craved in aid the cases of OKEKE VS. THE STATE (1995) 4 NWLR (PT. 392) 691; LAWAL VS. THE STATE (1966) 1 ALL NLR 107; AKPABIO & ORS VS, THE STATE (1994) LPELR-369 (SC); ITESHI ONWE VS. THE STATE (1975) 9-11 S.C. 23 AT 31; HAAV VS. KUNDU (1997) LPELR- 1346 (SC); STATE VS. AIBANGBEE & ANOR (1988) 3 NWLR (PT. 84) 548; STATE VS. IBONG UDO & ANOR (1964) 1 ANLR 243 AND OILFIELD SUPPLY CENTRE LTD VS. JOHNSON (1987) 2 NWLR (PT. 58) 625.

On the extra judicial statement of the Appellant (Exhibit H), learned Counsel submitted that the procedure adopted in recording it was flawed and that the doubt that arose from the procedure should be resolved in his favour. He further submitted that the Court ought to have exercised caution and not rely on Exhibit H in convicting the Appellant as same was retracted by him. He relied on the cases of TANKO VS. THE STATE (2008) 16 NWLR (PT. 1114) 606; AGAGARAGA VS. FRN (2007) 2 NWLR (PT. 1019) 586; ISAH VS. THE STATE (2007) 12 NWLR (PT. 1049) 582 AND DAWA VS. STATE (1980) 8-11 SC 236.

Learned Counsel to the Appellant urged us to allow this

appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant.

Arguing per contra, learned counsel to the Respondent urged us to hold that the prosecution proved all the ingredients of the offences for which the Appellant was charged.

He submitted that the eye witness account given by PW3 as well as Exhibit H fixed the Appellant at the scene of crime. He submitted further that Exhibit H was a confessional statement which the lower Court could have solely relied on to convict the Appellant. He cited the case ofAKPA VS. THE STATE (2008) 8 SCM 68 in support.

On the admissibility of Exhibit H, Respondent’s Counsel urged us to hold that the trial judge was right to have admitted it in evidence as there was nothing wrong with the procedure adopted in recording it. He submitted that the fact that an accused person retracts his confessional statement at his trial will have no effect on it once the Court is satisfied of its truth. He craved in aid the cases of OSETOLA & 1OR VS. THE STATE (2012) 12 SCM (PT. 2)347 AT 365-366; NWACHUKWU VS. THE STATE (2007) 12 SCM (PT. 2)447 AT 454.

On the defence of alibi raised

by the Appellant, learned counsel to the Respondent submitted that the defence of Alibi which was raised for the first time at his trial cannot avail him. He relied on several cases including TONGO VS. COP (2007) 9 SCM 113 AND OKOLO OCHEMAJE VS. THE STATE (2008) 10 SCM 103 AT 107.

On the alleged contradictions and inconsistencies in the evidence of the prosecution witnesses, learned counsel submitted that to have the effect of upturning the decision of a Court, the alleged contradictions and discrepancies must be relevant, material and of such magnitude to have occasioned a miscarriage of justice. he relied on the cases ofMICHAEL EBEINWE VS. THE STATE (2011) 3 SCM 46 AT 47; NDUKWE VS. THE STATE (2009) 2 SCM 147 AT 150; MUSA VS. THE STATE (2013) 3 SCM 79 AT 93 AND ATTAH VS. THE STATE. He further urged us to hold that there are no contradictions in the evidence adduced by the prosecution witnesses. He finally urged us not to disturb the findings made by the trial judge, affirm his decision and dismiss this appeal.

In the course of proceedings before the trial Court, the Appellant objected to the admissibility of his extra judicial statement,

consequent upon which the Court ordered and conducted a trial within trial. The trial Court in a considered Ruling found that the statement was voluntarily made and went on to admit same as Exhibit H. It is trite that a trial within trial is conducted to test the voluntariness of a confession made by an accused person and not to determine what value or weight to be attached to the evidence. See IFARAMOYE VS. THE STATE (2017) 8 NWLR (PT. 1568) 457; UZIM VS. THE STATE (2019) LPELR – 48983 (SC) AND IDAGU VS. THE STATE (2018) 15 NWLR (PT. 1641) 127.

The learned trial judge evaluated the evidence adduced at the trial within trial and held as follows at page 40 of the Record:
“I have no doubt in my mind that the accused person informed the I.P.Os that he is from Mangoro village in Udofia Local Government Area of Anambra State; that his mother is Adaeze Ilouno; that he was born in 1979; that his parents, at the time of obtaining his statement, lived in Anambra; and that he lived in the house of Alhaji Akeem. I am convinced that it was in the same atmosphere that DW1 volunteered the foregoing information to the police that he also volunteered

other contents of IDI which he admittedly signed. I have no reason to reject IDI. It is hereby admitted in evidence as Exhibit H.”

The complaint of the Appellant on the admissibility of Exhibit H is that the trial judge did not properly evaluate the evidence at the trial within trial before arriving at his decision to admit Exhibit H in evidence. It is trite that an Appellate Court would not ordinarily disturb the findings of a trial Court unless they are perverse and not supported by credible evidence and occasioned a miscarriage of justice. SeeEBEINWE VS. THE STATE (2011) 7 NWLR (PT. 1246) 402; OBIDIKE VS. THE STATE (2014) 10 NWLR (PT. 1414) 53 AND IBEH VS. STATE (1997) 1 NWLR (PT. 484) 632.

Learned Counsel to the Appellant in arguing that Exhibit H was not voluntarily made submitted that the Appellant was tortured before he signed the statement and that the co-accused Peter Nwakawo died on the same day in circumstances that suggest he was tortured and died in the same room in which the Appellant made his statement. He further submitted that PW1 who recorded the Appellant’s Statement, Exhibit H did not sign it and did not take him to

a Superior Police Officer to confirm the voluntariness of the statement.

It is a well settled position of law that the essence of signing a document is to identify the document as the act of the maker. See B.L. LIZARD SHIPPING CO. LTD VS. M.V. “WESTERN STAR” (2019) 9 NWLR (PT. 1678) 489; NNALIMUO & ORS VS.. ELODUMUO & ORS (2018) 8 NWLR (PT. 1622) 549 AND FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 444. It is not in dispute that the Appellant signed Exhibit H. His complaint is that PW2, the police officer who recorded it did not sign. To my mind, the fact that an investigating police officer recorded the extra judicial statement of an accused person does not make him the maker of such statement.
The fact that PW2 recorded the statement made by the Appellant in Exhibit H does not make him the maker of the statement. It is the statement of the Appellant which he (the appellant) signed and it remains so. Having signed it, the requirement of law that a document to be valid must be signed has been complied with.

It is further the complaint of the Appellant that failure to take him before a superior police officer

to confirm the voluntariness of his statement by endorsing thereon is fatal.
Let me reiterate that there is no law which makes mandatory the practice of taking an accused person before a superior police officer to confirm that his confessional statement was made voluntarily. While it is a desirable practice, it has no force of law. Failure to take an accused person before a superior police officer to confirm the voluntariness or otherwise of his confessional statement will not affect its admissibility or credibility. See EHIMIYEIN VS. THE STATE (2016) 16 NWLR (PT. 1538)173; TOPE VS. THE STATE (2019) 15 NWLR (PT. 1695)289; AND AJIBOYE VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1637) 430. That the Appellant was not taken before a superior police officer would not affect its admissibility and I so hold.

There is evidence on record that a motorcyclist ran into the co-accused, Peter Nwankwo while he along with his other accomplices were trying to escape and that he sustained injuries from the accident.

Learned Counsel to the Appellant urged us not to believe the evidence of PW2. This argument of Counsel goes to the issue of credibility of a

witness. It is trite that the issue of credibility and demeanor of witnesses is within the province of a trial judge who was privileged to have seen the witnesses and an Appellate Court would not ordinarily intervene. The Appellant has failed to show that the finding of the trial Court was perverse and I cannot find anything on record to suggest such. I do not find any reason to interfere with the finding of the trial judge and his conclusion in the trial within trial. He was right when he admitted the extra judicial statement of the Appellant, Exhibit H in evidence and I so hold.

The Appellant was convicted for the offence of attempt to commit armed robbery. The law is that to establish “attempt to commit an offence” the prosecution must prove more than mere intention. The act of the accused must be immediately connected with the commission of the real offence and more than preparation for the commission of the offence. See OKAFOR VS. STATE (2016) 4 NWLR (PT. 1502) 248; OSETOLA & ANOR VS. STATE (2012) 17 NWLR (PT. 1329) 251 ANDSHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73.

The offence of attempted robbery is committed where any person

while having the intention to steal, assaults the other person, uses or threatens to use actual violence against him with a view to obtain the thing intended to be stolen from him. To secure a conviction for the offence, the prosecution has a duty to prove the offence beyond reasonable doubt.
See Section 135(1) of the Evidence Act which provides thus:
“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.”
I wish to reiterate that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. The burden is discharged once the prosecution proves the elements of the offence charged. See ALIYU VS. THE STATE (2019) 11 NWLR (PT. 1682) 108; AHMED VS. THE STATE (2001) 18 NWLR (PT. 746) 622; DAWAI VS. THE STATE (2018) 5 NWLR (PT. 1613) 499 AND MOHAMMED VS. THE STATE (2018) 5 NWLR (PT. 1618) 540.
InSTATE VS. MUSA (2020) 2 NWLR (PT. 1709) 499 AT 517, PARAS. D-G, Kekere-Ekun JSC held as follows: “For the offence of attempted robbery, Section 2(1) and of the Robbery and Firearms (Special Provisions) Act provides

as follows:
“2(1). Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of such assault, uses or threatens to use actual violence to any other person or any property, in order to obtain the thing intended to be stolen shall upon conviction under this Act, be sentenced to imprisonment for not less than fourteen years but not more than twenty years.
If
(b) at or immediately before or immediately after the time of the assault, the offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act, be sentenced to imprisonment for life.”
The ingredients which the Prosecution is required to prove thus includes:
(i) that there was an attempt to rob by the accused but he was stopped in the process or that he attempted to abet the commission of the offence.
(ii) that the accused was armed or was in the company of any person who was armed.
(iii) that the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged.
See TOPE VS. STATE (SUPRA); OSETOLA & ANOR VS. THE STATE

(2012) 17 NWLR (PT. 1329) 251; OSUNG VS. THE STATE (2012) 18 NWLR (PT. 1332) 256 AND SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73.

The evidence of PW3 is at pages 54 – 56 of the record. It is as follows:
“My names are Ismaila Sanyaolu. I live at No.8, Freedom Street, Mowe, Ogun State. I am a furniture maker by profession but I presently work as a security agent for Oodua People’s Congress (OPC). I know the accused person. I recall the 13/06/12, I was returning from Abeokuta in my Vehicle to Mowe. As I was about to turn the road to my house, I sighted a vehicle behind me. I turned to my street and got to the canopy I erected outside for parking my vehicle. I parked and my phone rang. I received the call and was on it when I saw the accused person and 3 other people beside my car. They tried to open the car door but it did not open because

I was yet to switch off the engine.
The accused then knocked the window beside me. I was able to see them clearly because the canopy shade has electric lights fitted under it and there was light then. I wound down the window a little. The accused and other then pointed guns at me while the other 2 men were on the other side of my car. I switched off the engine of the car and I alighted from the car. I greeted them. I thought they were security guards in the area. The accused then said “what is meaning of Nigbati ngbati? “It was then I realized that they did not understand Yoruba language with which I had greeted them “good evening”. The accused said I should bring the key of my car and I refused. The accused then shot the double barrel gun he was holding at me. He shot it twice at me but it did not harm me. When they discovered that it had no effect on me, they ran away. As they ran, I ran after them while I shouted “thief”. As I chased them and got to the junction of my street, I found that it was there they parked their vehicle and one of their gang was seated in the vehicle (he never got down). As we approached the

vehicle, 3 of the men who accosted me entered the vehicle and joined the 1 who was seated there. The car took off while one person was yet to enter the vehicle. I chased after the vehicle and continued shouting. I had earlier called one motorcyclist to get me some fuel and he was at that time approaching. The last of the gang was trying to enter the vehicle and they opened the door for him. As they opened the door, the motorcyclist hit the last of the robbers against the car door and the cyclist and the robber fell to the ground while the vehicle took off. Myself and the motorcyclist arrested the last of the robbers and took him to the police station.
The place I park my car under the canopy is not fenced. When I ran after the robbers, I chased them on my feet. The last of the robbers was running after the moving vehicle. At the police station (Mowe) I made statement and I went home.
The robber we took to the police station, I later got to know his name to be… I cannot remember his name. we arrested him with a gun. About 2 or 3 days after, the police from Mowe called me that they were about to take the arrested man to the

SCID, Eleweran, Abeokuta, when we got there, I made a statement and I returned to my house. Some days after, the policemen from SCID called and asked me to meet them at Mowe police station. They went to the scene of the incident. They came in company of the robber that was arrested. The arrested robber told the policemen that he knew the hideout of their gang and the policemen were asking if I knew the area since I lived in the neighborhood. We then headed there with the police vehicle in front while I followed them in my vehicle. The robber confused the police and derailed for a while before he led us to the place and as we got there he did not disclose to the policemen on time that we had got there. This made their gang members to sight them and they took to their heels the policemen ran after them into the bush they ran into but they were only able to apprehend the accused person. It was when they brought out the accused that I inform the policemen that it was the accused that shot at me. I can identify the gun we found on the robber that was initially left behind by the gang. (Ask to look at Exhibits B, B1 and B2). This was the gun. The bullets are the

ones shot at me and later picked up on the ground outside my house.”

Learned Counsel to the Appellant urged us to hold that the evidence adduced by the only eyewitness (PW3) is materially contradictory and should be discountenanced. He further argued that the evidence is mysterious and unreliable. The law is that to render the evidence of a witness unreliable, the contradiction in it must be material and relate to the ingredients of the offence. It must be such that go to the root of the charge against the accused person. See OGBU & ANOR VS. THE STATE (2007) 5 NWLR (PT. 1028) 635; ADONIKE VS. THE STATE (2015) 7 NWLR (PT. 1458) 237; IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100 AND GALADIMA VS. THE STATE (2018) 13 NWLR (PT. 1636) 357.

To my mind, the material fact to the crime of attempted armed robbery is that guns were pointed at PW3 and he was shot by the appellant and his gang. The number of times he was shot and whether he was harmed or not is not a material fact in the determination of whether the offence was committed. The appellant and his accomplices were armed with guns and they shot the appellant. Furthermore, there is

unchallenged evidence that two expended cartridges were found at the locus criminis by PW1. The alleged contradiction in the evidence of PW3 is not on any material fact and I so hold.

It is further the argument of appellant’s counsel that the evidence adduced by PW1, PW2 and PW3 on where the appellant was arrested is materially contradictory. I wish to state there is a difference between discrepancies and contradictions. I find the dictum of Okoro JSC in the case ofAYINDE VS STATE (2019) 12 NWLR (PT. 1687)410 AT 425, PARAS. B-D very helpful. His Lordship stated as follows:
“But let me add that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence says or contains some differences in details. There is no doubt that when two or more persons are called as witnesses to say what they saw on a particular incident, there are bound to be discrepancies in those testimonies in respect of details.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Courts of law should therefore concentrate on material facts and not on peripherals that have no bearing on the substance of the case. See EGWUMI VS. THE STATE (2013) 13 NWLR (PT. 1372) 525; GABRIEL VS. THE STATE (1989) 5 NWLR(PT. 122) 457; UWAGBOE VS. THE STATE (2008) 12 NWLR (PT.1102) 621; OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT.1109)57; EJEKA VS. THE STATE (2003) 4 SCNJ 161; (2003) 7 NWLR(PT. 819) 408.”

The evidence of PW1, PW2 and PW3 contain different details of the location where the Appellant was arrested. To PW1, it was a hideout and a joint for taking hemp. To PW2 it was a house. PW3’s evidence on where and how the Appellant was arrested is at page 56 of the record and it is as follows:
“The robber confused the police and derailed for a while before he led us to the place and as we got there he did not disclose to the policemen on time that we had got there. This made their gang members to sight him and they took to their heels. The policemen ran after them into the bush they ran but they were only able to apprehend the accused person. It was when they brought out the accused that I informed the policemen that it was

the accused that shot at me.”
One consistent fact in the evidence of all the prosecution witnesses is that it was the Late Peter Nwankwo that led PW1, PW2 and PW3 to the hideout of his accomplices where the Appellant was arrested. None of them gave evidence opposite to this fact. The contradictions alleged by the Appellant are minor discrepancies which do not in any way affect the credibility of evidence by the prosecution witnesses. I agree with the finding of the learned trial judge at page 117 of the record that there are no material contradictions in the evidence of the prosecution witnesses. I find no reason to disturb same.

Apart from the eye-witness account and the evidence of the other prosecution witnesses, the learned trial judge further relied on the extra judicial statement of the Appellant Exhibit H in finding him guilty of the offence for which he was charged.

The law is trite that confessions constitute the best form of evidence in a criminal trial. See OBIDIOZO AND ORS VS. THE STATE (1987) 4 NWLR (PT. 67) 748; MUSA VS. STATE (2013) 9 NWLR (PT. 1359) 214; NWACHUKWU VS. STATE (2007) 17 NWLR (PT. 1062) 31 AND EDAMINE VS. THE STATE

(1996) 3 NWLR (PT. 438) 530.

The Appellant in his oral testimony before the trial Court retracted from his extra judicial statement Exhibit H. The law is trite that where an extra judicial statement has been proved and established to have been made voluntarily and it is positive and unequivocal and an admission of guilt, such confession will suffice to ground a conviction notwithstanding the fact that the maker resiles therefrom or retracts it at the trial. See STATE VS. SAIDU (2019) 10 NWLR (PT. 1600)308; ISONG VS. STATE (2016) 14 NWLR (PT. 1531)96; HASSAN VS. STATE (2001) 15 NWLR (PT. 735)184 AND EGBOGHONOME VS. THE STATE (1993)7 NWLR (PT. 307) 382.
Where an accused person resiles or retracts the extra judicial statement made by him as he did in the instant case, the trial Court has a duty to evaluate the confession and his testimony at the trial as well as other evidence place before it and then ask the following questions:
1. Whether there is anything outside the confession to show that the statement may be true ;
2. Whether it is corroborated in any way;
3. Whether the relevant statements of fact made in it are true as far

as they can be tested;
4. Whether the accused had the opportunity to commit the offence;
5. Whether the confession is possible
6. Whether it is consistent with other facts which have been ascertained and have been proved.
See IFEDAYO VS. STATE (2019) 3 NWLR (PT. 1659) 265; AMOS VS. STATE (2019) 1 NWLR (PT. 1653) 206 AND BLESSING VS. FEDERAL REPUBLIC OF NIGERIA (2015) 13 NWLR (PT. 1475)1. The learned trial judge at page 117 of the Record held thus:
“The accused confessed in Exhibit H that he went into armed robbery after he relocated to Nigeria; that he rented an apartment in Ofada and operated with his gang in Ofada/Mowe axis; that it was his vehicle that they used to trail PW3 on the night of the incident; and that the guns and ammunition found in his home were bought by him for robbery business. Even in his oral testimony before this Court, the accused person (DW1) said that he was the one that invited Peter to come from their village in Anambra State for armed robbery business. He said Peter, PW2 and PW3 were in company of the policemen who came to arrest him.
I am convinced that the accused had the opportunity of

committing the crime; that his confession is possible; and that same is consistent with other facts which have been ascertained and proved before this Court. I therefore find that Exhibit H has satisfied the above tests.”

The learned trial judge after subjecting the extra judicial statement of the Appellant to a trial within trial found that it was voluntarily made, held as such before admitting it in evidence as Exhibit H.

I have held earlier that I have no reason to disturb this finding of the trial judge. The contents of Exhibit H are positive, unequivocal and constitute an admission of guilt. It is corroborated by the evidence of PW1, PW2 and PW3. The eye witness account of PW3 link the Appellant with the commission of the offence.

The learned trial judge at page 119 of the record further held as follows:
“From the evidence of PW3 and Exhibit H in this instance, it is crystal clear that the steps taken by the accused person and his gang on the night of 13/06/2012 were directed towards robbing PW3 of his Nissan Xterra vehicle. I find that the Prosecution has proved that the accused and others now at large had an intention to

steal or remove the said vehicle. I therefore hold that the Prosecution has proved the offence of attempted robbery against the accused beyond reasonable doubt. I find the accused guilty on Count II of the Information.”

It is evident from the findings of the trial judge at page 117 of the record and his conclusion at page 119 all quoted above that he did a proper evaluation of Exhibit H and other facts presented by the prosecution witnesses before arriving at his decision. I agree with him and I have no reason to disturb the said findings and conclusion reached thereon.

The Appellant was also convicted for the offence of conspiracy after being found guilty of Count 1 of the charge. Conspiracy is a separate and distinct offence from attempted robbery. Conspiracy has been variously defined as the meeting of minds of two or more minds on a plot to do an unlawful or illegal act by unlawful means. The offence of conspiracy is usually hatched in secrecy and for this reason the offence is seldom capable of being proved by direct evidence. The foundation is common intent of purpose and ones there are reasons or grounds to believe that there has been a

conspiracy to commit a crime, whatever is done or said by anyone of the conspirators in furtherance of the common intention of the other conspirators will be regarded as sufficient evidence against other conspirators.
See ADEPOJU VS. STATE (2018) 15 NWLR (PT. 1641) 103; ADELEKE VS. THE STATE (2013) 16 NWLR (PT. 1381) 556; EGUNJOBI VS. FEDERAL REPUBLIC OF NIGERIA (2013) 3 NWLR (PT. 1342) 534; NDOZIE VS. STATE (2016) 8 NWLR (PT. 1513) 1.

In the instant appeal, all the prosecution needs to prove to secure a conviction for the offence of conspiracy as charged in count one of the charges against the appellant is that there was an agreement or intent by the appellant with the members of the gang to commit the offence of armed robbery against PW3. There is evidence on record that the appellant and others demanded for the key to the appellant’s car at gun point. They went further to shoot him. The appellant in Exhibit H admitted that Peter Nwankwo and others with himself went out for the robbery operation in the night of 13th June 2012.

The trial judge at page 120 held as follows:
“From the testimonies of PW1 – PW3 as well as

Exhibits B, B1,B2, C13 – C15 and H it can be inferred that late Peter Nwankwo, the accused person and others now at large belong to the same armed robbery gang and they had an agreement to do an unlawful act on the night of 13/06/2012, that is to rob PW3 of his vehicle. I find that the ingredients of the offence of conspiracy to rob have been established against the prosecution beyond reasonable doubt and I so hold. The accused is hereby found guilty in respect of Count 1.”

It can be safely inferred from the evidence on record as the trial judge did that the appellant, late Peter Nwankwo and other persons had an agreement to do an unlawful act on 13th June 2012 that is to rob PW3 of his Nissan Xterra Vehicle. The finding of the trial judge on the charge of conspiracy against the appellant is unassailable and I so hold.

I have no hesitation in coming to the conclusion that the prosecution proved the offence of conspiracy to commit armed robbery against the appellant and I so hold.

In all, I find no reason to disturb the judgment of the trial Court. Accordingly, I dismiss this appeal and affirm the judgment of the Ogun State High

Court in charge NOS.AB/4R/2014 delivered on 21st of November 2016.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered.

My Lord has adequately dealt with the issues in this appeal and I agree with the reasons given as well as the conclusion reached in the Judgment.

I am also of the view that this appeal lacks merit and it is dismissed by me.

I abide by the consequential orders made in the said lead Judgment.

NONYEREM OKORONKWO, J.C.A.: In this appeal, my lord Folasade Ayodeji Ojo JCA following the issues raised that minor discrepancies in the account of witnesses do not amount to material contradictions of material events and reasserted that a voluntary confession of an accused positive and direct and if believed by a trial Court could justify any conviction as in this case of armed robbery.

I agree. I also dismiss the appeal.

Appearances:

ALOY ONYIUKE ESQ. For Appellant(s)

T. OGUNJIMI (MRS) Assistant Chief State Counsel, Ministry of Justice Ogun State For Respondent(s)