ADAMU v. STATE (2020)

ADAMU v. STATE

(2020)LCN/14388(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/A/638C/2019

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

OJODOMO ADAMU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It is an indispensable feature of our criminal jurisprudence and procedure that the burden of proving that any person has committed an offence rests squarely and rigidly on the prosecution which burden by virtue of Section 138 of the Evidence Act the prosecution can discharge only if it successfully proves each and every ingredient of the alleged offence beyond reasonable doubt. Where the prosecution fails to prove any of the ingredients beyond reasonable doubt, the accused is entitled to an acquittal.See AFOLABI v. STATE (2010) 5 – 7 MJSC 187, 220,
ABIODUN v. FRN (2009) 7 NWLR (pr.114) 489, 509. PER ABOKI, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The Appellant in this appeal was charged with the offence of armed robbery contrary to Section 97(1) and Section 298(C) of the Penal Code, read along with Section 79 of the Penal Code. The indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt have been set out in a number of cases to be:-
1. That there was a robbery or series of robberies;
2. That the robbery was an armed robbery; and
3. That the accused person was the robber or took part in the robbery or robberies.
All these 3 ingredients must co-exist before an accused person can be found guilty of the offence. See OLAYINKA v. STATE (2007) ALL FWLR (PT.373) 163, BELLO v. STATE(2011) 18 NWLR (PT.1278) 353, EKE v. STATE (2011) LPELR 1133 (SC), AFOLALU v. STATE (2010) 16 NWLR (PT.1220) 584 SC. PER ABOKI, J.C.A.

DUTY OF THE COURT WHERE AN ACCUSED PERSON DENIES MAKING A CONFESSIONAL STATEMENT

In SOLOLA V. STATE (2005) 11 NWLR (PT.937) 460, the Court held that:
“Where an accused person denies making a confessional statement, the trial Court is expected to admit the statement in evidence as an exhibit and in the judgment decide whether or not such denial avails the accused person. Thus a confession does not become inadmissible merely because an accused person denies having made it. In this respect, a confession contained in a statement made to the police is not to be treated differently from any other confession. In short, the denial of an accused person of making a statement to the police is an issue of fact to be decided in the judgment as the issue does not affect admissibility of the statement.” PER ABOKI, J.C.A.

WHETHER OR NOT WHERE THERE IS NO APPEAL ON THE DECISION OF THE COURT, THE DECISION IS DEEMED EXTANT

The law is trite that where there is no appeal on a decision of the Court, such a decision is deemed extant, it stands as accepted by the parties. See: UNITY BANK PLC. VS. BOUARI (2008) 7 NWLR (PT. 1086) 372 SC, DABO VS. ABDULLAHI (2005) 7 NWLR (PT. 923) 181. PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of High Court of Justice, Kogi State, holden at Ankpa, delivered by AEN. ANWULU J., on the 15th of April 2016.

The Appellant herein, alongside two other accused persons, stood trial for the offences of criminal conspiracy and armed robbery punishable under Section 97 and 298(C) read along with Section 79 respectively, of the Penal Code. On the 9th of September, 2018, Sunday Godday who was the accused, escaped from the Court room before the Court commenced sitting. Thereafter, his name was struck out from the case following an application by the Prosecution to that effect.

The charges against them are as follows:
1st Head of Charge
That you Sunday Godday, Ojodomo Adamu and Reuben Amodu, on or about the 16th day of September, 2016 at Odo-Eto-Okpo in Olamaboro Local Government Area within the Kogi State Judicial division, agreed to do an illegal act, to wit: to rob one Eleojo Ada, 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.

2nd Head of Charge
That you Sunday Godday, Ojodomo Adamu and Reuben Amodu, on or about the 16th day of September, 2016 at Odo-Eto-Okpo in Olamaboro Local Government Area within the Kogi State Judicial division, committed an offence punishable under Section 97(1) and Section 298(C) of the Penal Code, read along with Section 79 of the Penal Code.

The Appellant and the other accused person pleaded not guilty to the charges. In establishing its case, the Prosecution called four witnesses and tendered six exhibits which were admitted in evidence. The Appellant and the other accused person testified in their respective defence and called no additional witnesses.

At the close of trial, the Trial Court sentenced the accused persons to two years imprisonment for the offence of conspiracy and ten years imprisonment for the offence of armed robbery. Both sentences were to run concurrently.

Dissatisfied with the decision of the Trial Court, a Notice of Appeal, dated the 27th of June 2019, was filed by the Appellant on the same day, upon Four grounds. On the 7th of November, 2019, an Amended Notice of Appeal was filed by the Appellant but deemed properly filed on

the 9th of April 2020, by an order of this Court. The Amended Notice of Appeal has Six (6) Grounds.

The Appellant argued this appeal through his counsel DR. KAYODE AJULO ESQ. In the Appellant’s brief dated 27th August, 2019, filed 8TH November 2019, but deemed filed on the 9th of April 2020, the following two issues were distilled for the determination of this appeal:
1. Whether the Trial Court was right in proceeding with the trial up to judgment without ordering the taking of fresh plea, after striking out the name of Sunday Godday from the Charge Sheet thereby violating the Appellant’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended.
2. Whether on the evidence adduced by the Respondent, and the Appellant at the Trial Court, the learned trial Judge was right to have convicted the accused person of the offence of armed robbery and conspiracy.

The Respondent’s brief of argument was dated and filed on the 28th of April, 2020. In the brief, settled by DR. JAMES AGBONHESE ESQ., the two issues formulated by the Appellant in his brief, were adopted by the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Learned Counsel on both sides are ad idem on the issues calling for determination. I also adopt them and I’m so guided.

ISSUE ONE
Whether the Trial Court was right in proceeding with the trial up to judgment without ordering the taking of fresh plea, after striking out the name of Sunday Godday from the Charge Sheet thereby violating the Appellant’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended.

It is submitted for the Appellant that by the grant of the application of the Respondent and the eventual striking out of Sunday Godday from the charge, the learned trial Judge ought to have ordered that the charge be amended and a fresh plea taken as the charge was substantially the same vis-a-vis the order of the Court amending same. He relied on Section of the CFRN 1999 as amended.

Learned counsel for the Appellant invited this Court’s attention to page 61 of the Record, in which is contained the proceedings of the 2nd day of October 2018, wherein the learned trial Judge granted the application of the Prosecution to strike out the name of Sunday Godday, who was

the 1st accused on the two count charge; and maintained that the striking out of the name of Sunday Godday who alone allegedly robbed Miss Eleojah Ada, the victim, at gun point and was arrested at the scene of the crime, has changed the nature of the charge substantially against the Appellant and the other accused person, who were charged as accomplices in the original charge.

Relying on the cases of ATTAH v. THE STATE (1993) LPELR 598 SC, and KRONAGHEA v. FRN (2018) LPELR 43684, learned counsel for the Appellant argued that it is an elementary principle of law that upon the amendment of a charge, the new charge shall be read to the accused person a fresh plea taken in respect of the charge. He opined that the failure of the Trial Court to take the plea of the Appellant after the amendment of the charge robbed the Trial Court of its jurisdiction to proceed with the trial. He cited a host of authorities to underscore this point at pages 5-9 of the Appellant’s Brief, including:
PRINCENT & ANOR v. THE STATE (2002) LPELR 2925 (SC); MADUKOLU v. NKEMDILIM (1962) LPELR 24023 (SC).

He concluded by submitting that the conviction and sentence of the

Appellant ought to be set aside on the ground that the entire trial at the Trial Court was a nullity, having been conducted without jurisdiction.

This Court is therefore urged to so hold, and resolve this issue in favour of the Appellant.

In response to the above, it is submitted for the Respondent that the essence of a charge is to enable an accused person know the nature of the allegation against him and also prepare his possible defence to same.

Learned counsel for the Respondent argued that the learned counsel for the Appellant misapplied the ratio decidendi in KRONAGHEA v. FRN SUPRA. He placed reliance on the same case i.e. KRONAGHEA v. FRN to justify his position that the conviction of the Appellant by the Trial Court was proper.

It is the contention of learned counsel for the Respondent that the withdrawal of a charge against a co-accused does not amount to an amendment of the charge that will require the accused to take a fresh plea. He referred this Court to the case of LAYE v. STATE (2019) LPELR 48944 CA, and submitted that the charge on which the Appellant was convicted was never amended as alleged by the Appellant.

All the Prosecution asked the Trial Court to do was to withdraw the name of Sunday Godday from the charge as he was at large, and the subsequent striking out of his name from the charge did not substantially affect the substance of the charge on which the Appellant was convicted, to necessitate the taking of fresh plea by the Appellant.

Learned Counsel for the Respondent agreed with the Appellant’s position that the procedure to be followed when it comes to amendment of charges are contained in the Supreme Court’s decision in the case of PRINCENT & ANOR v. STATE (2002) LPELR 2925 SC. He opined however that failure to amend the charge and take a fresh plea of the Appellant before proceeding with the trial did not rob the Trial Court of the Jurisdiction to proceed with the trial, as the conditions which confer jurisdiction on a Court, were met by the Trial Court.
This Court is urged to so hold, and resolve this issue against the Appellant.

I have carefully considered the submission by learned counsel to the parties on this issue. It is my finding that the entire argument by learned counsel to the Appellant was focused on the proceedings by the trial

Court of 2nd October, 2018, as reflected on pages 61 of the Records which reads: inter alia, as follows:
02/10/2018
Defendants: 2nd and 3rd Defendants present.
Appearances:
S. O. Ojomah, Esq. L.O. for the State D.Y. Ocheme Esq., holds the brief of Dr. Agada for the 2nd and 3rd Defendants.
Ojomah: I apply that the first defendant be struck out from this case. This is to enable us make progress, as efforts so far made to re-arrest the first defendant have yielded no positive result. If and when he is apprehended, we will come back to Court.
Ocheme: I have no objection.
Court: The first defendant Sunday Godday is hereby struck out from this case.
Ocheme: I ask for another date.
Ojomah: I have no objection.
Court: The case is further adjourned to the 23rd day of October, 2018, for continuation of defence.”
It is the contention by learned counsel for the Appellant that after withdrawing the charge against the 1st Accused and striking out his name, another plea of the 3rd Accused person (now appellant) ought to have been taken.
A similar situation arose in the case of LAYE v. STATE (2019) LPELR-48944 (CA).

In that case, the Appellant and another accused person were charged with murder contrary to Section 247(1) of the Criminal Code Law, Laws of Bayelsa State, 2006. They both pleaded not guilty to the charge. At the end of trial, the Appellant was convicted as charged, and sentenced to death by hanging. Upon his appeal to the Court of Appeal, one of the issues canvassed at the Court of Appeal was whether the arraignment and consequent trial, conviction and sentence of the Accused/Appellant violated his right to fair hearing. It was the argument of the Appellant that having withdrawn and struck out the name of the co-accused, the Appellant ought to be re-arraigned, and his plea taken afresh. In resolving this issue, the Court of Appeal per B.G. SANGA JCA, held inter alia, as follows:
“It is the contention by learned counsel to the appellant that after withdrawing the charge against the 2nd Accused and striking out his name, another plea of the 1st Accused person (now appellant) ought to have been taken. With respect to learned counsel this submission is not the position of the law. There was no application Oral or in writing, to amend the one count charge against

the 1st accused person. Each of the two accused was charged separately and their plea taken separately. The main purpose of a charge is to give the accused person reasonable notice of the case against him and to enable him prepare adequately for his defence, In AKINOLA OLATUNBOSUN V STATE (2013) LPELR 20939 (SC). The apex Court per RHODES – VIVOUR, JSC held thus:
“I must observe that the main purpose of a charge is to give the accused person good notice of the case against him and so once the charge discloses an offence with the necessary particulars that should be brought to the notice of the accused person to avoid him being prejudiced or embarrassed such a charge would be good in law. ” See also JIMOH SHAIBU (A.K.A ARUBA) V THE STATE (2014) LPELR – 24465 (CA), AHMED V F.R.N. (2009) 13 NWLR (PT. 1159) 536 at 550. The above requirement of the purpose of bringing a charge against the accused person was adequately complied with by the trial Court as can be seen in its proceedings of 5/2/2014. Section 36 of the 1999 Constitution was also complied with. It states thus: “Every person who is charged with a criminal offence shall be entitled to: (a) be informed

promptly in the language that he understand and in detail of the nature of the offence.” The law is trite also that in a criminal trial, where several persons are charged each accused person’s trial is distinct and independent of the other with the individual having to plead to a distinct charge against him as contained in the proceedings by the lower Court on 05.02/14. See OLAYIWOLA v. F.R.N ALL FWLR (PT. 306) 669 at 697. Therefore the application to withdraw the charge against the 2nd accused person and the lower Court proceeding to strike out his name did not amount to an amendment to the charge which would necessitate the taking afresh of the plea of the Accused/Appellant as provided by Section 159(1) and (2) of the Criminal Procedure Law. The decision of this Court in AMOS BUDE v. THE STATE (2013) LPELR 22353 (CA) Per ORJI ABADUA, JCA on whether a fresh plea must be taken where there is an amendment to a charge can be and is hereby distinguished as the facts are not on all fours with this case. It is therefore my finding on this issue that the arraignment and consequent trial, conviction and sentence of the appellant did not violate his right to fair hearing…”

I align myself wholly with the above decision of My Learned Brother SANGA JCA. I hold the view that the application to withdraw the charge against the accused person and the Trial Court proceeding to strike out his name did not amount to an amendment to the charge which would necessitate the taking afresh of the plea of the Appellant as provided by Sections 164 and 165 of the Criminal Procedure Act, CAP 80 LFN 1990, and Sections 208(2) 209, 210 and 211 of the Criminal Procedure Code CAP 30 Laws of Northern Nigeria, which prescribe the necessary procedure a Court shall adopt on granting the amendment of a charge. I find also, that the Appellant’s right to fair hearing was in no way violated.

The consequence of the above is that this issue is resolved against the Appellant.

ISSUE TWO
Whether based on the evidence adduced by the Prosecution and the Appellant at the Lower Court, the learned trial Judge was right to have convicted the accused person on the offence of armed robbery and conspiracy.

It is submitted for the Appellant that the trite position of the law is that in criminal proceedings, the Prosecution must prove the guilt of an

accused person beyond reasonable doubts and where there exists any doubt, such doubt must resolved in favour of the accused person. Section 135(1) of the Evidence Act 2011 was cited in reliance, as well as the case of MBACHU v. STATE (2018) LPELR 45153 (SC)

Learned counsel for the Appellant stated that in proving the guilt of an accused person upon the allegation of commission of a crime, the onus is always on the Prosecution who alleges the commission of the crime to prove that it was the accused and no other person who committed the crime, as the accused is not under any duty to prove his innocence. These cases were relied on:
ADENIJI v. THE STATE (2001) FWLR (PT 57) 809; CHUKWUMA v. FRN (2011) 5 SCM 48.

It is his view that the Prosecution did not discharge the burden imposed upon it by law, against the Appellant for the offences charged. According to him, from the evidence adduced at the trial, the only eye witness account is contained in the evidence of PW1 and PW2 wherein they stated how Sunday Godday, whose name was struck out of the charge allegedly robbed PW1 at gun point of One Thousand Naira. He opined that from the said evidence, the

Appellant took no part in the robbery and he did inform the Trial Court of his non-involvement in his oral testimony in court. He maintained that the finding of the Trial Court in convicting the Appellant of the offence of Armed Robbery and Conspiracy to commit Armed Robbery, cannot be supported with the evidence adduced at the trial. He invited this Court’s attention to pages 76 – 78 of the Record.

Learned counsel for the Appellant relied on the cases of DIBIA v. STATE (2017) 12 NWLR (PT 1579) 196; and OFFORDIKE v. STATE (2017) 3 NWLR (PT. 1553) 468; in listing the ingredients which must be established by the Prosecution to secure a conviction for Armed Robbery, and posited that the learned trial Judge in determining whether the ingredients had been proved failed to properly evaluate the evidence adduced, but rather convicted the Appellant and the other accused person based on the doctrine of common intention pursuant to Section 79 of the Nigerian Penal Code Law of Kogi State.

It is the opinion of learned counsel for the Appellant that before the Appellant can be convicted as charged, the Prosecution must prove common intention. He commended

this Court to these cases:
ALARAPE v. STATE (2001) 2 SC 114; AKINKUNMI v. THE STATE (1987) NWLR (PT. 52) 608

On the retracted extra judicial statement of the Appellant, admitted in evidence at the Trial Court as Exhibit P4, it is the submission of learned counsel for the Appellant that the learned trial Judge failed to test the veracity of Exhibit P4, before proceeding to make a finding of guilt. He relied on the case of OFORDIKE v. STATE (2019) LPELR 46411 (SC), where it was held that where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly right to admit it in evidence but must test its veracity to determine the weight to be attached to it, and maintained that the Trial Court failed to test the veracity of Exhibit P4, before making a finding of guilt against the Appellant, which occasioned a miscarriage of justice.

From the totality of the above submissions, this Court is urged to hold that the Prosecution failed to establish the offences charged against the Appellant, and resolve this issue in favour of the Appellant.

In conclusion, this Court is urged to allow the appeal, set aside

the judgment of the Trial Court, and consequently discharge and acquit the Appellant.

In response, it is submitted for the Respondent that the Prosecution has proven the guilt of the Appellant beyond reasonable doubt. Reliance was placed on:
SECTIONS 132 AND 135(1) OF THE EVIDENCE ACT, 2011; SECTION 36(5) OF THE CFRN 1999 (AS AMENDED); CHUKWUMA v. FRN (2011) 5 SCM 48.

It is the view of learned counsel for the Respondent that the findings of the Trial Court in convicting the Appellant of the offence of Armed Robbery and Conspiracy was supported by the evidence adduced by the Prosecution. He invited this Court’s attention to pages 19 – 24, line 75, and page 76, lines 1 – 2 of the Record of Appeal.

Learned counsel for the Respondent relied on the case of DIBIA v. STATE (2017) 12 NWLR (PT 1579) 196 @ 221 – 222, in listing the ingredients that the Prosecution must establish in to secure a conviction for Armed Robbery, and posited that the Trial Court rightly evaluated the evidence adduced at the trial in determining whether the ingredients of the offence had been established. He maintained that the three accused persons conspired to

16-

rob the victim and jointly executed the illegal act, and even though the name of Sunday Godday, who escaped from prison custody was struck out of the charge, the Trial Court was right to proceed to hear the matter against the two remaining accused persons and convicted them based on the doctrine of common intention, pursuant to Section 79 of the Nigerian Penal Code Law. He placed reliance on the case of AKINKUNMI v. THE STATE (1987) NWLR (PT 52) 608.

Learned counsel for the Respondent aligned himself with the submissions of the Appellant’s counsel that before the Appellant can be convicted of the offence of Armed Robbery and Conspiracy, as contained in the Charge, the Prosecution must prove common intention. He posited however that the essence of the doctrine of common intention as contained in Section 79 of the Penal Code is that it obviates the need for the Prosecution to prove stricto sensor the essential elements of the offence in respect of the accused, who did not actually participate in the actual commission of the offence, but was in agreement with the accused who actually participated or carried their collegial intention into fruition.

He commended this Court to the case of ALARAPE v. THE STATE (2001) 2 SD 114.

On whether the Trial Court tested the veracity of Exhibit P4, as enunciated in the case of OFORDIKE v. THE STATE (2019) LPELR 46411 SC, before relying on same to convict the Appellant, learned counsel for the Respondent submitted that the learned trial Judge did not fail to test the veracity of Exhibit P4. He invited this Court’s attention to pages 75 – 76 of the Record of Appeal and maintained that the failure of the Trial Court to consider the testimony of the Appellant that he was arrested while waiting to board a vehicle to his school when the vigilante operatives came and arrested him, did not occasion a miscarriage of justice, as the Appellant had already stated in Exhibit P4, how they conspired and executed the illegal act.

He posited that Exhibit P4, was direct, positive and unequivocal as to the admission of the accused person, and is therefore a confessional statement, in line with the decision of the Supreme Court in OLALEKAN v. THE STATE (2001) 18 NWLR (PT. 746) 792 @ 824.

Learned counsel for the Respondent canvassed that the essential ingredient of the

charge of armed robbery is not only that the accused person was armed, but he conspired to execute an illegal act. He relied on the case of ORISA v. THE STATE (2018) LPELR 43896 SC. He maintained that from the evidence on record, there was a glaring link between the Appellant, Sunday Godday and the other accused person, who all acted in concert and in agreement with each other.

He urged this Court to so hold and resolve this issue against the Appellant.

In conclusion, this Court is urged to dismiss the appeal as lacking in merit, and affirm the decision of the Trial Court.

See
AFOLABI v. STATE (2010) 5 – 7 MJSC 187, 220,
ABIODUN v. FRN (2009) 7 NWLR (pr.114) 489, 509.

It is now firmly settled that the guilt of an accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), confession of the accused or by circumstantial evidence.

On the 1st and 2nd ingredients of the offence that there was a

robbery and the robbery was with arms, the graphic evidence of PW1 and PW2 leave no room for doubt. According to PWI at pages 41 – 42, she stated inter alia, thus, at the examination in chief:
“…On 16th September, 2016, at about 1100pm, we were about praying our night prayers. Suddenly someone pushed the door and entered our room. He was wearing a face mask and pointed a gun at me. Now I know it was the first accused that pointed the gun at me. I shouted “Jesus” and asked what he wanted. He replied he wanted money. When I shouted “Jesus’; my younger brother came out of his room. I went into my room and the accused pointed the gun at my younger brother. My younger brother is by name Sunday Olofu. I returned to where the accused was and gave him one thousand naira and the accused began to run outside. He was trying to climb the fence and My brother was watching him. The 1st accused fell from the fence. My younger brother apprehended him and began to shout.
People ran to our compound to assist us. The accused was taken to the police station with his gun. The police recorded my statement and that of Sunday Olofu my younger brother, on our way

from the police station, vigilante came with two others and said they were part of the robbers that robbed me and that they were arrested at Ogbagebe… ”
Under cross-examination, she stated:
“…The robber wore a face mask when he entered my house. The robber broke in my room at about 11:00 pm. I made a statement at Okpo Station. Also I made a statement at the State C.I.D Lokoja. I stated in the statement that I could not identify the first accused while he wore mask but when the mask had been removed, I saw his face and he introduced himself to me. The face mask of the first accused had been removed before he was taken away… “

For PW2, the narrative is similar. According to him, at page 45 – 46 of the Record:
“…On 16th September, 2016, I was asleep. I heard “Jesus”. I ran to the sitting room and saw PW1 and the first accused pointing a gun at PW1 and demanding for money. When I saw him, I raised up my hands as he pointed the gun at me. PW1 went into her room and brought out one thousand naira, which she gave the first accused who collected it. The first accused ran out of the room. While trying to jump the fence,

the first accused fell down. I ran to him and grabbed him and began to shout. People ran from the hospital into the compound and assisted in holding him. We took him to the police where my statement and that of PW1 were recorded. While I was holding the first accused down in the compound, the vigilante came and questioned him as to his cohorts. He mentioned two names. The vigilante brought two persons after about thirty minutes saying they were the ones mentioned by the first accused.”
Under cross-examination, he stated:
“I did not take a look at the clock to know the time of the commission of the offence. It was already dark at the material time. The robber who entered the house of PWI was masked. The robber was unmasked after he was apprehended upon his falling down. I made a statement at Okpo Police station. The first accused collected one thousand naira from PW1. PW1 and I were the only ones in the house on the fateful night. I unmasked the first accused after apprehending him. The 2nd and 3rd accused persons did not enter the room of PW1. I know Ogbagebe village. It was in the process of escaping from the scene of the crime that the vigilante

arrested the 2nd and 3rd accused persons at Ogbagebe. It was the first accused, upon his arrest that stated that he came along with the 2nd and 3rd accused for the robbery.”

From the foregoing, I find that the first two ingredients of the offence of armed robbery have been established.

However, the real bone of contention is with the 3rd ingredient, that the Appellant was one of the robbers and with all seriousness, this is the crux of the issue upon which this appeal was vigorously argued. It is the contention of the Respondent’s Counsel that the Appellant confessed in the Exhibit P4 that he was one of the robbers.

In this case, the prosecution placed its reliance on the extra-judicial statement of the Appellant. Records showed that at the point of tendering the extra-judicial Statement of the Appellant, he raised no objection to its admissibility, and thus same was rightly admitted on the basis that it was voluntarily made, in terms of absence of duress, threat or promise, the objection of the Appellant only being that he did not sign the document but thumb-printed on it, thereby denying the statement to be his own. He did not contend during

tendering the statement that it was obtained involuntarily, either by duress, force or inducement; therefore a trial within trial would be unnecessary, to determine the truth of the extra judicial statement. See:
OKORO V. STATE (1993) 3 NWLR (PT.282) 425
IDOWU V. STATE (2000) 12 NWLR (PT.680) 48.
In SOLOLA V. STATE (2005) 11 NWLR (PT.937) 460, the Court held that:
“Where an accused person denies making a confessional statement, the trial Court is expected to admit the statement in evidence as an exhibit and in the judgment decide whether or not such denial avails the accused person. Thus a confession does not become inadmissible merely because an accused person denies having made it. In this respect, a confession contained in a statement made to the police is not to be treated differently from any other confession. In short, the denial of an accused person of making a statement to the police is an issue of fact to be decided in the judgment as the issue does not affect admissibility of the statement.”

In the judgment, the learned trial Judge also noted that the extrajudicial statements of the accused persons were truly made.

Hear him, at page 75 lines 19 – 24, and page 76, lines 1-2 of the record that:-
“The 1st Defendant Ojodomo Adamu in his oral evidence stated he was a student of Kogi State Polytechnic at the time of his arrest. This same fact is contained in his statement to the police. The evidence of the investigators is that the defendants were apprehended at a village, Ogbagebe, some distance from the scene of crime. This fact is also contained in Exhibit P4 credited to the 1st defendant. I am satisfied and so hold that the confession credited to the F defendant in Exhibit P4 is true.”

It is important to note that there was no appeal by the Appellant on this decision. The law is trite that where there is no appeal on a decision of the Court, such a decision is deemed extant, it stands as accepted by the parties. See:
UNITY BANK PLC. VS. BOUARI (2008) 7 NWLR (PT. 1086) 372 SC, DABO VS. ABDULLAHI (2005) 7 NWLR (PT. 923) 181.

It is therefore deemed that the Appellant has accepted that the confessional statement was truly made. Exhibit P4, the confessional statement of the Appellant, even though retracted at the trial before its admission in

this appeal is a true, free and voluntary confession of the Appellant.

The issue to be examined in the circumstance of this appeal is whether the trial Court rightly convicted the Appellant on his confession – Exhibit P4, found at page 93 – 94 of the Record. In it, the Appellant stated inter alia:
“… I am a native of Igah Ikeje, I’m schooling in Kogi State Poly. On the 9/9/2016, I came back from School for Sallah break and to enable me collect food when lam going back. On the 16/0/2016, at about 2000hrs, I was inside my room sleeping, when one Reuben Amodu came to my house with his motorcycle and told me that one Manager Sunday is looking for me. I now follow him down to Okpo and met the said Manager Sunday at Odo Elto Olepo, near Education Office, Okpo, then he told me that we should go and did one package at Sister Eleojo Adah’s house, but I did not asked him the kind of package they are going to do. He told me that I should not fear, that nothing is going to happen, I now follow him. Then the three of us went there, but Reuben Amodu stay outside to monitor the movement of the people around and myself and the said Manager

went inside the compound. At the fence, Manager Sunday was with one English pistol but myself did not hold anything. At about 2300hrs when they wanted to lock their door, Manager Sunday now ran into the room and myself was monitoring the compound. Suddenly, one boy ran from the room and met me, he wanted to jacked me and the said Manager was inside, then I ran and climbed the fence and dropped outside the fence. Then I came and met the said Reuben Amodu where he stay, waiting for us. I now told him how Manager enter the house of one woman and I was pushed by the woman’s children. I did not know that he want us to go out for robbery. We wait for Manager, when he did not come, we now started going towards Igah Ikeje before the vigilante arrested us on the road. Truly we came for robbery. Manager is my brother and one Reuben Amodu, I know him from Igah Ikeje where he was learning vulcanizer….”

The confessional statement of the Appellant is direct as to the robbery incident.

What is to be determined now is whether the Court rightly convicted the Appellant solely on his confessional statement.

The law is trite that an accused person can be

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

The strong contention of the Appellant is that the trial Court ought not to have relied heavily on Exhibit P4 to convict him without any corroborative evidence, more so as the confessional Statement was retracted at the trial. There is no law that makes it mandatory for a retracted confessional statement of an accused person to be corroborated before a Court can convict on the confessional Statement. A Court can safely convict an accused person on his retracted confessional statement once the confession is positive and direct and the Court is convinced about its veracity. However, it is desirable and prudent for such a retracted statement to be corroborated by some other independent

evidence, either by direct or circumstantial evidence, no matter how slight, to establish that the confession was true.
In IHECHUKWA OKOH v. THE STATE (2014) LPELR – 22589 (SC) the Supreme Court, per Mohammed JSC at Page 35 – 36 paragraph GC held thusly:
“The law is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true.”
see also ISONG VS. STATE (2016) LPELR – 40609 (SC).
Judicial authorities have stated the tests for a retracted confession statement to be as follows:-
i. Anything outside the confession to show that it is true.
ii. Is it corroborated in any way?
iii. Are the relevant statements of fact made in it (most likely to be) true as far as they can be tested?
iv. Did he have the

opportunity of committing the offence?
v. Is the confession possible?
vi. Is the alleged confession consistent with other facts, which have been ascertained & established?
See
OGUDO v. STATE (2011) 18 NWLR (PART 1278) 1 AT PAGES 26, 32, 45 – 47.
UBIERHO v. STATE (2005) 2 SCNJ AT 8.
IDOWU v. STATE (2000) 2 SC 114 AT 125 & 126.
I have had a thorough scrutiny of the evidence adduced at the trial. In my view, the testimonies of PW1 and PW2 are strong and compelling and thoroughly corroborate the confessional Statements of the three accused persons, the Appellant inclusive. Aside the evidence of PW1 and PW2, the participation of the accused persons is proved by Exhibits P4, P5 and P6. Their statements pinned them to the scene of crime, and narrated their participation in the crime. The denial of the Appellant cannot stand in the face of the eye witness account by PW1 and PW2. In short, the evidence by PW1 and PW2 are consistent with the contents of Exhibit P4. Their evidence unequivocally corroborated the confessional statement of the Appellant with regard to the armed robbery incident.
All I have been saying in

effect is that evidence of PW1 and PW2 corroborated Exhibit P4. Their evidence conformed with the requirements for the test of a retracted confessional statement as enunciated in the legion of decided authorities on the guiding principle for test of a retracted confessional statement.
As already analyzed in the foregoing, there were other pieces corroborative evidence outside the confessional statements which are consistent with the confession and showed that the confession of the accused persons was true. The evidence of PW1 and PW2 also show that the accused persons, Appellant inclusive, had the opportunity of making their statements and committing the offence of which they confessed to and were convicted.
However, let me state on the other hand, assuming but without conceding that the prosecution failed to adduce any independent evidence to corroborate the confessional statement of the Appellant, the law is trite that a free and voluntary confession, which is direct, positive and properly proved, like Exhibit P6 is sufficient to sustain a conviction without any corroborative evidence so long as the Court, like the trial Court in this appeal, is satisfied with its truth.

In ASIMI V. STATE (2016) LPELR – 40436 (SC), the Apex Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus:
“Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.“
It is now axiomatic that a voluntary retracted confessional statement can ground the conviction of an accused person provided that it is direct, positive and consistent with other facts which have been proved. It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, free, positive, so long as the Court is satisfied of its truth. Such a confession would constitute proof of

guilt of the maker and suffices as evidence upon which to ground or sustain his conviction. See DIBIE VS THE STATE (2007) NWLR (PT. 1038) 30; OZANA UBIERHO VS THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655. After all a confession being an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence, it is good law that it is the best evidence in criminal trial that the accused committed the offence with which he is charged, so long it satisfies the requirement of the law. See
IKPO VS THE STATE (2016) LPELR 40114 (SC);
ADEKOYA VS THE STATE (2012) 9 NWLR (PT. 1306) 539;
ASIMI VS THE STATE (2016) LPELR 40436 (SC).
This is so because who else knows it better and can say it better than the accused who hatched and executed the crime?
This is why in ADEBAYO VS ATTORNEY GENERAL OGUN STATE (2008) 3 NCC 305 AT 308 Tobi JSC (as he then was), stated thus:
Confession is the best evidence in criminal law. In it, the accused admits that he has committed the offence for which he is charged For this purpose, the accused is the figurative horse’s mouth. There cannot be better evidence.”

The confession of the Appellant in Exhibit P4 proved beyond reasonable doubt that the Appellant participated in the armed robbery incident.

The Appellant herein, through his Counsel has vigorously contended that before the Appellant can be convicted of the offence of Armed Robbery and conspiracy, the Prosecution must prove common intention, as contained in Section 79 of the Penal Code.
In the case of ALARAPE v. THE STATE (2001) 2 SC 114, the apex Court held thus:
“A close analysis of the above Section of the law discloses the following requirements or pre-conditions that must be established before a conviction based thereunder may be sustained. These requirements are as follows: 1)There must be two or more persons; 2)They must form a common intention; 3) The common intention must be towards prosecuting an unlawful purpose in conjunction with one another; 4) An offence must be committed in the process; 5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose. In convicting the Appellant for the offences charged, the Trial Court had this to say,

at pages 76 – 79 of the Record:
“…I have perused Exhibit P4 and P6. In Exhibit P4, the 1st defendant gave a detailed account of how he, the 2nd defendant and Sunday Godday met and decided to go and rob PW1, Sunday Godday who escaped from the Court room had a pistol on him. By his own account while he and Sunday Godday entered the compound of PW1, the 2nd defendant waited by their motorcycle. When Sunday Godday entered the house of PW1, he stayed outside to monitor the compound. The retraction of the 1st defendant is of no moment. By Exhibit P4, he has admitted the offence of armed robbery punishable under Section 298(C) of the Penal Code. The ingredients of the offence, namely: 1) That a robbery was committed; 2) That it was armed robbery; 3) That the defendant participated in the crime; have all been proved beyond reasonable doubt against the 1st defendant Ojodomo Adamu. I hereby convict him for the offence of armed robbery punishable under Section 298(C) of the Penal Code. The second defendant is credited with the making of Exhibit P6. It is clear from the contents that the second defendant was with Sunday Godday and the 1st Defendant at the time

that the offence was committed. Even though he did not enter the compound of PW1, he is in law taken to have so entered through Sunday Godday and the 1st Defendant by accompanying the duo on their trip to commit the offence and watching over their motorcycle while Sunday Godday and the F Defendant proceeded to enter the compound of PW1 to rob her, the second defendant is caught by the doctrine of a joint or common intention in crime. By this doctrine, the acts(s) committed by Sunday Godday and the 1st Defendant are deemed committed by the second defendant. In the case of D.S.P. GODSPOWER NWANKWOALA & ANOR v. THE STATE (2006) 14 NWLR (PT 1000) 663, the Supreme Court per Tabai JSC held thus: “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 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 gully of the offence. My view is which I hold is that both the defendants are liable for the acts of Sunday Godday who

actually entered the house of PW1 and robbed her at gun point. They had a common intention. The 1st defendant who stayed within the compound to monitor the area and the second defendant who watched over their motorcycle are caught by the doctrine of common intention….. ”
On the offence of conspiracy, the Trial Court held thus:
“The offence of conspiracy is defined as an agreement by two or more persons to do an illegal act because it is hard to find direct evidence of such agreements, a trial Court can infer the existence of such agreement where circumstances so permit. See DABOH v THE STATE (1977) 5 SC 122. The defendants have been convicted for the offence of armed robbery in which they have common intention. That is the fact which I can infer the evidence of an agreement to commit an unlawful act. I hold that the offence of conspiracy punishable under Section 97(1) of the Penal Code has been proved against both defendants beyond reasonable doubt. I hereby convict both of them, namely Ojodomo Adamu and Reuben Amodu for the offence of conspiracy punishable under Section 97(1) of the Penal Code.”
I find the decisions of the Trial Court

infallible and I agree wholly with them. The law is settled that the only option ever open or available to an appellate Court where the findings of the lower Court is correct is to affirm and stand by it and not to set aside the correct findings. See AFOLABI & BROTHERS NIG. LTD & ANOR v. STERLING BANK (2018) LPELR 46546 (CA)
Once an appellate Court finds that the conclusion reached by a trial Court is correct, it has no duty to interfere. Thus, the duty of an appellate Court to interfere will arise only where the finding, conclusion and or decision of the lower Court is wrong and or perverse. In law, a finding or conclusion of a Court is perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence in the printed record of appeal. See OWOR v. CHRISTOPHER (2010) ALL FWLR (PT. 511) 962 @ P. 992; MINI LODGE LTD. v. NGEI (2010) ALL FWLR (PT. 506) 1806 @ PP. 1820 – 1821.
In the circumstances therefore, the Trial Court

below having made the correct findings and reached the correct conclusion based on the evidence on record, I see no reason to set it aside.

The consequence of the above is that I adjudge this appeal to be wholly unmeritorious and liable to be dismissed. Same is hereby dismissed by me.
The judgment of the Trial Court delivered on the 16th of May 2019, in CASE NO: AHC/1C/2017, is hereby affirmed.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU AB0KI, PJCA. I agree with the reasoning, conclusions and orders therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, ABDU ABOKI JCA and I agree with the detailed consideration of all the issue donated for determination.

I just wish to add my voice to the question whether after the name of a co-accused was struck out, the other remaining accused persons should take a fresh plea. It is obvious that the essence of a charge to give adequate information of the charge to the accused, the particulars of the

charge must be stated. The name of a co-accused is not and cannot be part of the particulars of an offence provided for in the law creating the offence. Therefore, there was no breach of fair hearing.

The Appeal lacks merit and I also dismiss same and abide by other orders made in the leading Judgment.

Appearances:

Dr. Kayode Ajulo with him, Hammed Lasisi For Appellant(s)

Dr. James Agbonhese For Respondent(s)