OJO v. STATE (2020)

OJO v. STATE

(2020)LCN/15303(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/IB/42C/18

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

SUNDAY OJO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON

By Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with the commission of a criminal offence, shall be presumed to be innocent until he is proved guilty. By that presumption of innocence therefore, the prosecution has the onerous duty of adducing credible evidence, which will prove every ingredient of the offence charged beyond reasonable doubt. It therefore means that, where any of the ingredients of the offence charged is not proved, or the evidence led in proof thereof is discredited by way of cross-examination, the charge has not been proved beyond reasonable doubt. Similarly, where the evidence adduced is contradictory on material elements of the offence, it would mean that a doubt has been created in the mind of the Court; and it would therefore be concluded that the charge has not been proved beyond reasonable doubt. See Sections 131, 132, and 135 of the Evidence Act, 2011. See also State v lsiaka (2013)11 NWLR (PT1430) 374 and State v Azeez & Ors (2008) 14 NWLR (PT 1108)439. Thus in the case of Rasaki v The State (2011) 10 NWLR (pt 1273) 251, it is said that in an accusatorial system of administration of justice as practiced in this country, the general burden of proof lies always on the person who alleges. PER AKINBAMI, J.C.A.

THE BURDEN OF PROOF IN CRIMINAL TRIALS

In criminal trials, the general or legal burden of proof lies on the prosecution and does not shift, to prove the guilt of the accused person. This legal burden is supported by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, which guarantees to all persons accused or charged with a criminal offence, the right to be presumed innocent until proven guilty. This burden, the prosecution must discharge beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence which also rebuts any defense raised by the defendant. Where at the close of evidence an essential element of the offence charged has not been proved, a doubt would have been created as to the guilt of the accused and he shall be entitled to a discharge and acquittal. PER AKINBAMI, J.C.A.

ELEMENTS TO PROVE THE CRIMINAL OFFENCE OF ARMED ROBBERY

The hackneyed elements to be proved in a charge of armed robbery are:
(a). that there was a robbery or series of robberies;
(b). that the robbery or each of the robberies was an armed robbery;
(c). that the accused person was the robber or one of those who took part in the armed robbery.
It is also trite law that the commission of an offence, including armed robbery may be proved through any one or a combination of the following ways:

(a). by the direct evidence of a person or persons who saw the commission of the offence;
(b). by circumstantial evidence which lead to no other conclusion than that the accused person committed the offence.
(c). by the confessional statement(s) of the accused person which is direct, positive, unequivocal and duly proved.
See Michael Adeyemo v. The State (2015) LPELR -24688 (SC); Gabriel Ogogovie v. The State (2016) LPELR- 40501 (SC); Joseph Bille v. The State (2016) LPELR – 40832 (SC) and Onuoha & Ors v. State (1989) 3 NWLR (pt.101) 23. PER AKINBAMI, J.C.A.

WHETHER OR NOT A COURT CAN CONVICT AN ACCUSED PERSON SOLEY ON THE BASIS OF HIS CONFESSION WHEN WHEN HE HAS RETRACTED FROM THE CONFESSION

The law is settled beyond peradventure that a Court may convict an accused person solely on the basis of his confession even when he has retracted or resiled from the confession. See:Ikemson v. State (1989) 3 NWLR (Pt. 110) 455. It is also the law that where an accused person outrightly denies making a confessional statement, the trial Court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. In other words the Court should evaluate the confession, the testimony of the accused and the other pieces of evidence adduced at the trial and then decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it. See: Onyegbu v. State (1994) 1 NWLR (Pt. 320) 328; Dele v State (2011) 1 NWLR (Pt. 1229) 508. PER AKINBAMI, J.C.A.

THE DUTY OF THE COURT IN CONSIDERING THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

The duty of the Court when considering the confessional statement of an accused has been well defined in the authorities. See: Shande v. State (2005) 22 NSCQR 756; Solola v. State (2005) 22 NSCQR (Pt. 1) 254. It is also settled law that a confession which the Court adjudged free and voluntary, properly tendered and admitted in evidence could ground a conviction.
To ascertain the probative value of a confession, the Court must subject it to the tests laid down in judicial authorities. See: Idowu v. State 3 NSCQR 96; Alarape v. State (2001) 5 NWLR (Pt. 705) 79 at 98-99. These tests are: –
1. Whether there is anything outside the confession to show that it is true.
2. Whether the statement is corroborated.
3. Whether the facts contained therein so far as can be tested are true.
4. Whether the accused had the opportunity of committing the crime.
5. Whether the confession of the accused was possible
6. Whether the confession was consistent with other facts which have been ascertained and proved in the matter. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court sitting in Ota, delivered on the 5th day of December, 2017, by O. S. Olusanya J, in Charge No: HCT/27R/2015.

The Appellant was arraigned on a two counts charge of conspiracy to commit armed robbery, and armed robbery which are offences contrary to and punishable under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004.

The Appellant was said to have, in company of the second accused and some other persons (now at large), robbed one Bola Mustapha of the sum N10,000.00 (Ten thousand Naira) on or about the 24th day of August, 2014 , at No 35, Ojabi Street , Sango-Ota

The case of the prosecution on record by PW1, Bola Mustapha the complainant, is that on Saturday, 24th August, 2014, at about 3.00am, the Appellant and his co accused persons knocked at her door requesting to buy cards, and she told them that she does not sell cards at such a time at night. She was threatened to open the door or else they would shoot at her.

The Appellant and the other co-accused persons, then forced the door open, and while holding guns, they collected the sum of N10,000.00 which she put on the window, and another large sum of money which she was yet to count. She shouted, and her neighbor came to her rescue, and when the Appellant and his co-accused persons saw them, two of the robbers ran out while the Appellant held the gun to her head. Later he also tried to run away by jumping over the fence, but he fell down and he was arrested by the neighbours. He was taken to the police station. The Appellant led the police to arrest the 2nd accused. PW1, made statement to the police.

Testifying under cross-examination, the PW1 stated that her son and his wife were living in a room and parlour in the same house, when the incident happened, and the robbers threatened to shoot them if they dared come out. PW1, has never come in contact with any of the accused persons, before the day of the robbery. One of the neighbours who came to her rescue is one Goodluck, while the other one had now moved out of the house. She further testified that herself and her neighbours, took the Appellant to the police station, while the police went to the scene of crime, to recover the gun which dropped from the Appellant, as well as the broken door lock to the station.

The Appellant who, had made an extra -Judicial statement to the police confessing to the crime, retracted same at the trial.

At the trial, the prosecution called five witnesses, and tendered Exhibits 001-012 respectively. The Appellant testified in his own defense, but called no witness. Learned counsel addressed the Court, and in a considered judgment delivered on the 5th day of December, 2017. The Learned trial judge convicted the Appellant on both counts of conspiracy to commit armed robbery, and for armed robbery and sentenced him to death. Being aggrieved by the decision, the Appellant has filed this appeal.

The Original Notice of Appeal, which consisted of only the omnibus ground of appeal, was filed on the 13th December, 2017. However, by leave of this Court granted on the 21/1/19, the Appellant filed an Amended Notice of Appeal consisting of three (3) Grounds of Appeal. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments which was filed on the 15/3/19, but deemed properly filed and served on the 9/3/2020 raised therein, three issues for determination as follows:
1. Whether there was breach of right of fair hearing as against the Appellant at the trial in the lower Court. Ground 1.
2. Whether from the evidence adduced by the prosecution established the essential elements of the offence for which the Appellant was charged. Ground 2.
3. Whether the evidence adduced by the Respondent before the trial Court can support the conviction of the Appellant. Ground 3.

The Respondent’s Brief of Argument settled by Miss O. A. Sonoiki (Chief State Counsel, Ogun State Ministry of Justice) was filed on 3/3/2020 but deemed properly filed and served on 9/3/2020. Two issues were raised by the Respondent for determination as follows:
1. Whether the prosecution proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.
2. Whether the Appellant had a fair hearing during the trial, when the confessional statements, and other exhibits were admitted and relied upon.

Having carefully considered the issues raised by both parties in this appeal, l am of the view that Respondent’s two issues encapsulates the grounds of appeal, l will therefore determine this appeal on them.

In the determination of this appeal l shall start with issue 1, which raises the issue of proof beyond reasonable doubt.
“Whether the Prosecution proved the offences of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.” This issue is argued in Appellant’s issues 2 and 3.

On issue 1 therefore, learned counsel for the Appellant contended that the alleged confessional statement of the Appellant did not scale the hurdle, and test proffered by the Supreme Court. The Appellant completely denied having any knowledge of this statement, the statement should have at least shown the thumbprint of the Appellant, but none was found on the surface of it at pages 21-23 of the record of appeal. He cited the case of Adeyinka v FRN LPELR -24325(CA).

He contended that the lower Court did not consider all the requirements enunciated in the above case, before placing heavy reliance on the confessional statement of the Appellant. That the Appellant retracted the alleged confessional statement, denying he ever made it, therefore the learned trial judge should have judicially, and judiciously dealt with the statement, by determining the truthfulness or otherwise of the statement.

He submitted that in criminal trial, the onus is on the prosecution to prove its case beyond reasonable doubt. Section 135(2) of the Evidence Act, 2011. He cited the cases of Dele Gabriel v The State (2010) 6 NWLR (PT 1190) 280; Felix Nwosu v State (1986) 4 NWLR 348; Adelodun v F.R.N All FWLR (PT 912) 730-731.

Premised on the above authorities, learned counsel contended that the essential elements of the offence of Armed Robbery, involves that the prosecution must prove beyond reasonable doubt, but that the correct probable value was not ascribed to the evidence adduced by the Prosecution, before the lower Court. That there was also no correct assessment of the evidence by the lower Court. He placed reliance on the case of Usman v State (2010) 6 NWLR (pt1191) 454. He submitted that the duty of the prosecution is as serious as the offence charged. The law requires the prosecution to be thorough and diligent in the discharge of this duty especially in prosecution of offences with capital punishment. He cited the case of Atiku v State (2010) 9 NWLR (pt1199) 241.
He urged this Court to allow the appeal and set aside the judgment of the lower Court.

In his Issue 3 “Whether the evidence adduced by the Respondent before the trial Court can support the conviction of the Appellant.” Learned counsel for the Appellant contended that it is a radical principle of law, that conviction would only follow where the charge against an accused person has been proved beyond reasonable doubt. In support of his contention, learned counsel cited the cases of Obiakor v State (2002) 36 W.R.N 1 at 9; The State v Salisu Isiaka (2013) LPRLR-20521 (SC).

Learned counsel referred to the judgment on page 67 of the record of appeal wherein the learned trial judge stated:
“In the evidence in chief of PW2, on page 30-31, of the record of appeal, his evidence-in-chief is as follows: “Goodluck Okule of 35 Ojabi Close, Sango -Ota. I am a security officer with Ambassador School. I know the accused persons. On 24/8/14 at about 3:52 am, l live in the main building, and l suddenly begin to hear the voice of my Landlady who lives in the boys’ quarters, shouting egbamioo. Me and Mr. Tunde came out and we saw two boys, one ran, and the other accused person pointed gun at us, but l and Mr. Tunde held him by the leg. I was sleeping at 3:15am when l heard mama voice in my sleep. It was only gun we saw on the accused person. People try to beat him up, but l rescued him that it is better we call the police.”

Under Cross-examination, PW2 stated as follows:
“It was after we apprehended the suspect that the son Bashir came out. Mr. Tunde did not follow us to the police station. It was me, landlady and the son and other boys that went to the station. Yes l am a security persona. I joined Ambassador School Security in 2005, and left in 2008, and l later joined the security in 2011. I was at home that day, because l was at home that day because l was not licensed to carry arms, ammunition, knife, machete etc. yes he threatened us with gun, but we held him by the leg, he did not shoot the gun at anybody. As a security persona, l don’t have the right to pick guns, so the gun was left behind and picked by the police later. It was the police that later came to pick the gun before the suspect was arrested. I did not have any contact with the gun that day. Mine was to report the matter to the police.”

It is Appellant’s contention from the foregoing evidence that there was no arm or ammunition present at the robbery. In that PW2, said the Appellant had a gun with him and he didn’t shoot it, even after they held on to his legs, is not probably true. The gun should have been shot by the Appellant into the air to cause fear which may occasion his escape.

Learned counsel referred to PW2, as having been a security man for years, and he did not pick up the said gun, because he is not licensed to carry arms, that this is likely to be untrue, because there is a difference between having a license to carry weapons, and arresting a person alongside the weapon brought by that person to rob in their compound. He claimed that the Appellant was taken to the Police station without any offensive weapon and the police later came to the compound to retrieve the said gun. In support of his contention, learned counsel cited the case of C.O.P V Amuta (2017) 4 NWLR (PT 1556) 379; Aruna v State (1990) 6 NWLR (PT155) 125 at 134. He submitted that it is not open to the Court to credit one testimony and discredit the other unless a proper foundation is laid for such a course. That in this case the testimonies of the prosecution witnesses conflicts, the trial Court should have discountenanced these testimonies instead of basing its judgment against the Appellant on them. He cited the case of Aliu v State (2014) LPELR-23253(CA).

On the offence of conspiracy to commit Armed Robbery, learned counsel submitted that the gist of the offence is in the meeting of minds of the conspirators. Therefore the duty of the Court is to make deductions or inferences from the overt act or omission of the parties to the conspiracy. From the evidence led by the prosecution, particularly from the testimonies of PW1, and PW2, there is no evidence before this Court to infer any agreement involving the Appellant or any person at large. The only evidence sought to be relied upon is the alleged confessional statement of the Appellant, which was denied by him, and evidence has been led that since the alleged confessional statement was not signed or thumb printed by the Appellant, it cannot be ascribed any heavy weight of probable evidence. In fact the 2nd accused person, was discharged and acquitted of both the offence of conspiracy and armed robbery. He urged this Court to hold that the offence of conspiracy has not been proved beyond reasonable doubt against the Appellant. He cited the case of Michael Ebeinwe v The State (2011) LPELR-985(SC).

On the death penalty for the crime of armed robbery, learned counsel contended that it cannot be substantiated by the weight of evidence led by the prosecution. Learned counsel contended that the alleged offensive weapon “the gun” was never tendered as evidence before the lower Court, it was also never listed on the list of exhibits tendered in Court in the record of appeal.

On this Issue 1 learned counsel for the Respondent contended that it is trite, that in criminal trials, the prosecution must prove its case beyond reasonable doubt. He cited the case ofAbirifon v The State (2013) 9 SCM 1-5.

Learned counsel contended on the authority of Osetola v The State (2012) 12 SCM (PT2) 347-365, that when an Appellant is charged with a substantive offence and the offence of conspiracy, the substantive offence should be considered first, before the offence of conspiracy. Consequently he stated the ingredients of the offence of Armed Robbery as stated in the case of Osuagwu v The State (2013) LPELR-19823(SC):
A. That there was a Robbery
B. That the Accused/Appellant was armed
C. That the Accused/Appellant while armed, participated in the Robbery.

On the first ingredient of Armed Robbery, learned counsel submitted that on 24th of August, 2014, at No. 35 Ojabi Close, Sango Ota, Ogun State, this was also well postulated by the complainant via her testimony before the trial Court. He submitted that the fact that the complainant Bola Mustapha was robbed of her money and other possessions on the night of 24th of August, 2014 is not in issue, he urged this Court to so hold, he further urged this Court to hold that prosecution proved the ingredients of armed robbery beyond reasonable doubt in the trial of this case.

On the second ingredient, the testimony of PW1, before the trial Court was to the fact that “she was sleeping in her room, when someone knocked her door and requested to buy cards, she told them that she does not sell cards at that time of the night, and she was instructed to open her door or else they would shoot her. They forced the door open, and they held guns, while they collected the sum of N10,000.00 from her. Also, the evidence of PW2, was that he heard shouts from his landlady, and he came out with Mr. Tunde, and he saw three boys running out, and they wanted to jump over the fence, they were able to arrest one of them who was in possession of a gun. This fact is on page 86 of the record of appeal. This fact that the Appellant was armed with a gun is also contained in Exhibit 001, the extra judicial statement of PW2. He urged this Court to rely on the testimony of PW1 and PW2 before the trial Court, and also exhibit 001, and affirm the decision of the lower Court in respect of the second ingredient.

He reiterated the fact that under cross-examination, the testimonies of PW1, and PW2 were not discredited or controverted, and a careful perusal of Exhibit 001, corroborates the testimony of the witnesses.

Learned counsel submitted that the identity of the Appellant was not in issue, as he was caught by PW2, with Mr. Tunde while he was trying to escape.

He contended that it has been settled in a plethora of cases that identification parade is not a sine qua non. Where there is good and cogent evidence linking the Appellant to the crime on the day of the incident, a formal identification parade is not necessary. He relied on the case of Adebayo v The State (2014) 8SCM 34 255 para C-G. The Appellant in Exhibit 002 and 007-7A admitted being at the scene of crime, and he also gave graphic details of his involvement in the operation. He cited the case of Adeyemi v The State (2014) 8 SCM 34 at 55 para E-H.

In his further submissions, learned counsel submitted that the Appellant during his testimony before the Court placed himself at the scene of crime, and further admitted that he was arrested there. That the Court can conveniently rely on the confessional statements of the Appellant, as any document tendered and admitted as Exhibits form part of the prosecution’s case, which the Court must consider. He submitted further that a Court can act on the evidence of a single witness if the witness is believed given all the circumstances of the case and where corroboration is not required by law. He cited the case of Nkebisi & Anor v The State (2010) 3 SCM 170 at 174. He therefore urged this Court to hold that the Exhibits 002 & 007-7A and all the prosecution’s witnesses whose testimony remained unshaken under cross-examination, prosecution has proved the 3rd ingredient of Armed Robbery against the Appellant beyond reasonable doubt.

Learned counsel defined the offence of conspiracy as being complete when two or more persons agree to do an unlawful act, or do a lawful act by an unlawful means. He again cited the case of Osetola & Anor v The State (2012) 12 SCM (PT2) 347, 371.

He cited the case of Upahar v State (2003) 6 NWLR 230 where conspiracy is distinguished from other offences, in that the crime consists simply in the agreement or confederacy to do some act, no matter whether it is done or not. See the case of Nguma v A.G Imo State (2014) 3 SCM 137 at 160-161; Nwosu v State (2004) 15 NWLR (PT 897) para F-H; Bello v The State (2010) 12 SCM (PT2) 28 at 34.

It was further submitted by learned counsel that conspiracy can be inferred from the Statement of the Appellant Exhibit 002 and 007-7A. That a careful perusal of those Exhibits shows that, there was a meeting of the minds of the Appellant and his other gang members still at large.

Learned counsel reiterated the fact that a case of conspiracy is separate and distinct from the substantive offence, failure to prove the latter does not make conviction for conspiracy inappropriate as it is independent of the actual offence. He again cited the case of Ajuluchukwu v The State (supra) at page 56.

He urged this Court not to disturb the decision of the trial Court and hold that the prosecution has proven the offence of conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt, he urged this Court to affirm the decision of the lower Court.

RESOLUTION OF ISSUE 1
By Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with the commission of a criminal offence, shall be presumed to be innocent until he is proved guilty. By that presumption of innocence therefore, the prosecution has the onerous duty of adducing credible evidence, which will prove every ingredient of the offence charged beyond reasonable doubt. It therefore means that, where any of the ingredients of the offence charged is not proved, or the evidence led in proof thereof is discredited by way of cross-examination, the charge has not been proved beyond reasonable doubt. Similarly, where the evidence adduced is contradictory on material elements of the offence, it would mean that a doubt has been created in the mind of the Court; and it would therefore be concluded that the charge has not been proved beyond reasonable doubt. See Sections 131, 132, and 135 of the Evidence Act, 2011. See also State v lsiaka (2013)11 NWLR (PT1430) 374 and State v Azeez & Ors (2008) 14 NWLR (PT 1108)439. Thus in the case of Rasaki v The State (2011) 10 NWLR (pt 1273) 251, it is said that in an accusatorial system of administration of justice as practiced in this country, the general burden of proof lies always on the person who alleges. In criminal trials, the general or legal burden of proof lies on the prosecution and does not shift, to prove the guilt of the accused person. This legal burden is supported by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, which guarantees to all persons accused or charged with a criminal offence, the right to be presumed innocent until proven guilty. This burden, the prosecution must discharge beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence which also rebuts any defense raised by the defendant. Where at the close of evidence an essential element of the offence charged has not been proved, a doubt would have been created as to the guilt of the accused and he shall be entitled to a discharge and acquittal.

In the instant case, the Appellant was charged for having committed the principal offence of armed robbery and conspiracy to commit armed robbery. The hackneyed elements to be proved in a charge of armed robbery are:
(a). that there was a robbery or series of robberies;
(b). that the robbery or each of the robberies was an armed robbery;
(c). that the accused person was the robber or one of those who took part in the armed robbery.
It is also trite law that the commission of an offence, including armed robbery may be proved through any one or a combination of the following ways:

The corroborative evidence needed to convict an accused, must be evidence which confirms in some material particulars, not only that the crime has been committed, but also that it was the appellant who committed it. See: Mbele v. State (1990) 4 NWLR (Pt. 145) 484.

In his evidence, lnspector Adeyemi Ganiyu, police officer attached to the Nigeria Police, State CID, Eleweeran, Abeokuta, Ogun State who testified as PW5 stated that he knows the Appellant and co-accused. He re-arrested, charged and cautioned each of the accused persons in Yoruba language. The Appellant and co-accused volunteered their statement in Yoruba language, and he recorded same in Yoruba language. He read the statement to each of the accused persons in Yoruba language, each of them confirmed his statement to be true and correct. Each of the accused persons then signed as the maker, while he signed as the recorder. He later translated the statement of each of the accused persons to English language. The statement of each of the accused was confessional in nature, so on 27/8/14 he took each accused person with his statement to his superior officer, Segun Johnson (ASP) for endorsement. The statement of each of the accused persons was read over to him in English language, while PW5, interpreted to them in Yoruba language. Each of them confirmed that it was voluntarily made. The superior officer Segun Johnson, then filled and signed the Attestation Form of confessional statement of Appellant, and his co-accused. The said statements were tendered and admitted in evidence without objection as exhibits 006-A and exhibits 007-B respectively.

In his evaluation of the evidence adduced at the trial in relation to the involvement of the accused persons in the robbery, the learned trial Judge stated at pages 56-57 of the record of appeal: –
“It is the case of the prosecution that in the course of the police investigation, the 1st accused confessed to the crime of robbery, and also incriminated the 2nd accused, by naming him in his statement and this led to the arrest of the 2nd accused. It is the prosecution’s case that further investigation conducted at SARS Abeokuta led to the interrogation of the two accused persons whereby the alleged confessional statement of the 1st and 2nd accused persons Exhibits 006-006A and 007-007A were made. The police witness also tendered Exhibits 008-009, being the Attestation forms of the confessional statement of the accused persons. …l need to quickly say here that the statements of the accused persons were tendered and admitted in evidence without any objection from the learned counsel to the accused persons, however learned counsel only remarked that the accused persons are saying that they did not make any statement to the police, and they are not part of the confessional statements.”
In addition to the evidence of identification the prosecution also relied on the confessional statements of the accused, exhibits 002, 003, 005, 006 and 007 which were confessional statements of the two accused persons which were admitted without objection.
The duty of the Court when considering the confessional statement of an accused has been well defined in the authorities. See: Shande v. State (2005) 22 NSCQR 756; Solola v. State (2005) 22 NSCQR (Pt. 1) 254. It is also settled law that a confession which the Court adjudged free and voluntary, properly tendered and admitted in evidence could ground a conviction.
To ascertain the probative value of a confession, the Court must subject it to the tests laid down in judicial authorities. See: Idowu v. State 3 NSCQR 96; Alarape v. State (2001) 5 NWLR (Pt. 705) 79 at 98-99. These tests are: –
1. Whether there is anything outside the confession to show that it is true.
2. Whether the statement is corroborated.
3. Whether the facts contained therein so far as can be tested are true.
4. Whether the accused had the opportunity of committing the crime.
5. Whether the confession of the accused was possible
6. Whether the confession was consistent with other facts which have been ascertained and proved in the matter

I have considered the confessional statements, the oral evidence of the prosecution witnesses and the accused persons. Exhibit 002 is the Statement of the Appellant made at the earliest opportunity. The statement reads thus:-
“l Sunday Ojo of the above mentioned address. I was born on February, 1990 into the family of Mr. & Mrs. Ojo at Baruwa Estate, Lagos State. I am a native of Oke-Balogun Compound, Ago-Oka in Abeokuta, Ogun State. My father and mother are late. I attended Aleja Primary Ilaro, Ogun State. I proceed further to Itolu Community High School, Ilaro Ogun State. I stop half way in SS2 class in the same school. I went further to learn carpentry work with one of my brother name Johnson at Ilaro, Ogun State. I spend almost a year in my apprenticeship. I did not do my freedom. I did not have identity card of my profession. I also went working as a conductor with any commercial buses with different drivers l see. I do work with drivers loading passengers from Iyana lpaja to IPO, Ogun State … l did not have permanent driver to work with for now. I presently reside at above address. I did not have my personal room, l sleep inside ghetto at above address. The truth of the matter is l know one Jimoh, surname unknown as my friend. My friend lives at Abekoko Area IPO, Ogun State. …l also know Sheriff Kamoru as my friend and work as a conductor.
What happened is that yesterday being 23/8/2014 in the mid-night, me and Jimoh surname unknown and Michael surname unknown all are friends, both of us met at Indian hemp joint at Abekoko Area IPO, Ogun State, we left the joint together and entered a commercial bus down to Sango-Ota with one locally made pistol for robbery operation. We arrived Sango around 11.15pm of 23/08/2014, we were all patrolling around with our gun until in the midnight when three of us by name Jimoh, Michael, and me. We were led by Jimoh for the robbery operation at Ojabi Close off Abeokuta Street, Sango-Ota and attacked one woman; name unknown to me with one locally made pistol, Michael was the person that carry the gun for operation.
On arrival, Jimoh and Michael jump the fence of the woman house from back and opened the door of the complainant through inside while l followed front and entered the woman room, and when we started robbing the woman, the complainant shouted and Jimoh and Michael escaped through the fence and abandoned the locally made pistol behind and while l was trying to escape, l was caught.
It is true we demanded money from the woman while on the operation, it is true me, Michael, Jimoh and Sheriff have both gone together for robbery operation for more than four times, we robbed at Dalemo Area, Temidire and present place they arrested me. Michael is the owner of the gun we use. It is the same Michael knows where he normally hide the gun. Michael live at mechanic village at Ajegunle Area of Lagos State. It is true three of us left together and robbed the complainant in her house at Ojabi Close, Sango-Ota. I did not steal anything from the woman. I did not know if Michael and Jimoh collected money from the woman. I do sell any item stolen by me, and my gang to anybody that need it from me. I do sell my stolen items at Oshodi, Lagos State.
I wish to state further that for the offence of stealing at Badagry in Lagos State, l was ex-convict in case assault/stealing. I was sentenced for one and half years at Badagry prison yard am not yet married.”

The above is the statement the Appellant made at Sango-Ota Police Station immediately after his arrest.
In his defence, the Appellant in his evidence-in-chief stated:-
“On 24/8/2014 at about 10.30p.m, l went to buy a recharge card from one Alhaji Mustapha and suddenly l heard a shout “thief, thief.”

While some boys were running and being pursued along the way l was passing. The boys were arrested, and l was pointed at as one of them. I protested that l am not a thief but a driver l was carrying my driver’s license; l was beaten and taken to the Police Station at Sango.
At the police station, the police collected my phone and began to check on my contact numbers in the phone and suddenly a call came in and it was that of my friend Sheriff. I was asked whom Sheriff was and l told the police that Sheriff is my friend and a driver too. The police asked me to lead them to Sheriff, and l led them to IPO garage where Sheriff was arrested and we were brought back to the police station and detained …l was later taken to SARS office at Abeokuta where l was equally tortured …l was the only one that went to Alhaji Bola Mustapha’s house to buy recharge card.”

The learned trial Judge was painstaking in the evaluation of the evidence adduced. He considered the evidence put forward by the accused which was a denial of the charges they were facing. He analysed their evidence and this is what he said at page 128 of the record of appeal:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“I have looked at the statement of the 1st accused person Exhibit 002 reproduced above, and the signature credited to the 1st accused. I find the signature regular and to all intents and purposes, it does not look like the signature of a person signing under a traumatic condition. I hold that the 1st accused signed the statement Exhibit 002.
Furthermore, l find that the content of Exhibit 002 the statement, is a graphic expression of the 1st accused family story, his educational background and work experience, and the association he keeps.
The 1st accused also confirmed in his evidence-in-chief that he attended school at Itolu in Ilaro.
The statement revealed that himself and two others namely Jimoh and Michael planned and carried out the robbery operation while carrying a locally made pistol.
This piece of evidence is corroborated by the evidence of the PW1, that three men broke into her house and robbed her at gun point.
The accused also stated that the gun used in the robbery was abandoned while his friend Michael who was carrying the gun escaped.
This piece of evidence is corroborated by the evidence of the PW2, that the locally made pistol used by the robbers dropped while the 1st accused was trying to climb the fence, and same was later recovered by the police from the premises of the PW1.
I am of the view that piece of evidence contained in the statement of the 1st accused Exhibit 007, is not a piece of evidence which ordinarily will be within the knowledge of the PW3 W/Sgt Owailgot, if the 1st accused had not given her this information which she wrote down.
I believe that the 1st accused voluntarily made the statement which l find to be confessional statement and that same is true.
I reject the evidence of the 1st accused person at the trial wherein he said that he knows nothing about the statement and that he did not endorse same.
I also disbelieve the evidence of the 1st accused denying the commission of the offence and l regard same as afterthought.
The evidence of the PW1, which l find to be true was to the effect that three men broke into her house at night and robbed her of her money. She was able to identify the 1st accused as the one holding the gun to her head, while she was shouting. I also believe her evidence to the effect that the 1st accused was the last person to run out of her room when the neighbours came to her rescue.
I believe the evidence of the PW2, to the effect that accused was arrested in the premises of the PW1, while he was attempting to climb over the fence out of the premises while a gun fell down from him……l find that by this piece of evidence, it has been established that the 1st accused was in the company of someone armed with a gun during the operation of a robbery and this constitutes armed robbery under the Act.
I therefore disagree with the submission of the learned counsel for the 1st accused person, that the prosecution has not sufficiently linked the weapon to any of the accused persons, and for the Court to discountenance the ipse dixit testimony of PW1, and PW2 that the PW1, was robbed at gun point by the 1st accused person.
The statement of the accused person in Exhibit 002, was corroborated to a large extent in his further statement he made to the police at SARS office, which was admitted as Exhibit 007, except for the fact that he now made additional to the number of his friends which include Lekan, Yakubu, Gbolahan, Abdulahi, Sikiru school boy, Femi and Sherif Kamoru whom he claimed to be his partner in various robberies he had been involved in.
I hold that Exhibit 007 and 008 are confessional statement and attestation form to confessional statement of the accused person respectively credited to the 1st accused person. The contents of Exhibit 007, are information which could ordinarily be within the knowledge of the 1st accused which he gave to PW5 Inspector Adeyemi Ganiyu. I hold that the 1st accused person made Exhibit 007, his confessional statement, and l find that it is true in view of the evidence of the PW1, PW2, Exhibits 002 and 010-012.

The findings made by the trial Judge who is in the vantage position of assessing the credibility of the witnesses in the trial, by watching their demeanor and from that vantage position has the privilege of believing and accepting the evidence of the witnesses in preference to the evidence adduced by the defense. See: Adelumola v. State (1988) 1 NWLR (Pt.73) 683 and Sugh v. State (1988) 2 NWLR (Pt. 77) 478. Any finding of a Court based on facts cannot and will not be interfered with by an appellate Court unless the finding is perverse and is not supported by credible evidence. See: Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553. In the instant appeal, the learned trial Judge meticulously and studiously evaluated the evidence adduced at the trial and arrived at the right decision. Arriving at a contrary decision would have led to a miscarriage of justice.

Learned counsel for the appellant has argued that there are material inconsistencies in the evidence of the prosecution witnesses that it will be a travesty of justice to rely on their evidence.

It is trite that an appellate Court will set aside a lower Court’s judgment on the ground that there are contradictions only when such contradictions are material contradictions See: Archibong v. State (2006) 14 NWLR (Pt.1000) 349. The mention by PW1, that she was robbed by the accused persons. She shouted and her neighbours came to her rescue, and when the accused persons saw them, two of the robbers ran out, while the Appellant was holding a gun to her head. Later he also tried to run away by jumping over the fence, but he fell down and he was arrested by the neighbours. He was taken to the police station. The Appellant contended that there was no arm or ammunition present at the robbery and that, PW2 said the Appellant had a gun with him and he didn’t shoot it even after they held on to his legs, is not probably true. That PW2, said he has been a security man for years, and he did not pick up the said gun, because he is not licensed to carry arms, this is likely untrue because there is a difference between having a license to carry weapons and arresting a person alongside the weapon brought by that person to rob in your compound, cannot qualify as such material contradictions that should lead to the setting aside of the lower Court’s judgment. The evidence that will qualify as material contradiction is the evidence that will cast reasonable doubt as to the guilt of the accused. See: Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16.

I therefore hold that the prosecution proved the offence of armed robbery as charged, against the Appellant, beyond reasonable doubt.
The first issue for determination is resolved against the Appellant.

Issue 2
“Whether the Appellant had a fair hearing during the trial of the case.”

Appellant’s counsel in arguing this issue enunciated the principle of law that, the right to fair hearing is at the root of a just and fair administration of criminal justice, and the absence of it, always amounts to grave injustice in a matter in which the liberty of the citizen is very much in issue. That its breach in any trial nullifies same. He cited the cases of Kim v State (1992) 4 NWLR (pt 233) 17; Onagoruwa v State (1992) 2 NWLR (pt221) 33; Mohammed v Kano N.A. (1968) 1 All NLR 424; A.G. Rivers State v Ude (2006) 17 NWLR (pt 1008) 435. First Bank Plc v Udeozo & Ors (2017) LPELR-43263(CA).

Learned counsel contended that the lower Court did not give equal treatment, opportunity and consideration to all parties in this case. The Appellant in his evidence before the trial Court revealed that he only went to buy recharge card at the house of Alhaja Mustapha PW1, and as he was going he suddenly heard “thief, thief”, and saw five(5) boys running, and that was how someone pointed to him as one of the robbers. The Appellant said that he was a driver, and he had his driver’s licence with him, before he was thoroughly beaten, and taken to Sango- Ota Police Station. Learned counsel argued that this evidence by the Appellant was not considered at all, at the trial by the lower Court, only the evidence by prosecution witnesses were considered. But given the peculiarity and gravity of the punishment of the alleged capital offence, the lower Court should have considered all parties, and also determine if the Appellant had committed the alleged offence.

He further submitted that the right to fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the bedrock of our judicial system. It is one of the principles of natural justice, that supports the concept of Rule of law, and an indispensable part of adjudication in any civil society. He cited the case of Otapo v Sunmonu (1987) NWLR (58) 587 @ 605. Ndukauba v Kolomo (2005) 1 SC (PT1) 80 @ 86.

Learned counsel reiterated the fact that in this case, it cannot be said that justice has been manifestly done. There was no forensic test or Laboratory test on the alleged gun in custody which is seriously in doubt, if any gun was found on the Appellant at the scene of the crime, because in the evidence given by PW1, she said that the appellant was taken to the police station with the gun, while PW2, said in his cross-examination that the alleged gun was left behind in the house, and he could not touch it, because he is not licensed to carry a gun. He cast doubts and aspersions on the inconsistencies of the eye witnesses. He contended that the lower Court cannot be said to have manifestly done justice in this case. That the prosecution should have led credible evidence that the alleged gun had a connection with the Appellant, by tendering evidence of forensic laboratory examination establishing Appellant’s finger print on the said gun, since PW2 gave evidence, that the alleged gun was later recovered at the crime scene by the police. It was the duty of the prosecution to have proved beyond reasonable doubt, that the alleged gun belonged to the Appellant, considering the seriousness of the penalty of the offence alleged.

Learned counsel further contended that the Appellant maintained the position that he did not give or write any extra-judicial statement at the police station, exhibit 007 and 007A (confessional statements). He submitted that the Appellant is an illiterate; his thumbprint, and date did not appear on the confessional statements on pages 21-23 of the record of appeal, but only the name of the interpreter that is clearly stated. Therefore it can be inferred that the statements were written without the consent or knowledge of the Appellant. The content of exhibit 007A, should not have been accorded any weight as same was not signed in any way by the Appellant which was the reason he declared that he doesn’t know anything about the exhibits.

Based on the foregoing, learned counsel submitted that fair hearing was not accorded the Appellant, therefore justice cannot be said to have been done.

In his response, Respondent’s counsel contented that it is trite law that a trial Court can rely solely on the confessional statement of an accused person to convict him. In support of his contention, he cited the case of Akpa v State (2008) 8 SCM 68.

He further submitted that, from the records, no objection was made as to the admissibility of the Appellant’s statement Exhibit 002, 007-007A at the point of tendering same.

Learned counsel contended that a counsel who stands by and allows exhibits to be tendered without any objection cannot later complain about same. He submitted that no objection was raised as to whether the Appellant made a statement, or not at the point of tendering Exhibit 002 . He cited the case ofAdeleke v State (2013) 12 SCM (PT2)13.

He submitted further that a confessional statement is the best evidence in criminal proceedings, and that once same is admitted in evidence, it becomes part of the prosecution’s case, which the trial judge is bound to consider as done in this present case. He cited the case of Nwachukwu v State 2007 12 SCM 447 @455.

Learned counsel referred to the case of Oseni v State (2012) 4 SCM 150 at 153 wherein Ngwuta JSC, stated the question a judge must ask himself ,on the weight to be attached to a confessional statement. He commended Exhibits 002, 007-007A, and also 008 confessional statements of the Appellant as well as the attestation form he filled, he submitted that the confessional statements having been corroborated by the evidence of the prosecution witnesses, have met the requirements of the law.

Therefore the Appellant can be convicted on the said confessional statement alone. He cited the case of lsmail v State (2011) 10 SCM para 4. The retraction of a confessional statement will not always affect same, once the Court is satisfied as to its truth, the Court can rely solely on same. He again cited the case of Nwachukwu v State (supra). If confession of guilt by Appellants is direct, positive, duly made and satisfactorily proved, it is desirable to have outside the confession some evidence of corroboration, no matter how slight which makes it probable that the confession is possible. That corroboration evidence may be direct or circumstantial, learned counsel cited the case of Dagayya v State (2001) 2 SCM 33 @ 67. Learned counsel contended that in this instant case, the confessional statement of the Appellant was corroborated by the testimony of PW1, and PW2, and from exhibits 002,007-007A,008, 009, it can be deduced that the Appellant committed the offence.

Learned counsel submitted that the doctrine of fair hearing is enshrined in Chapter Four (4) of the 1999 Constitution (as amended). For the definition of fair hearing learned counsel cited the case ofA.G. Rivers v Ude (2006) 17 NWLR (pt008) 436. He further submitted that fair hearing is also, the impression or perception of a reasonable man, from his own observation that justice has been done in a case. He cited the case of Ezechukwu v Onwuka NWLR (2006) PT 963 151.

It is contended by learned counsel that the learned trial judge evaluated the testimony of the Appellant on pages 111-113 of the record of appeal, and also finally relied on the confessional statement of the Appellant, and the evidence of the eye-witness to convict him.

Learned counsel contended that the submission of the Appellant’s counsel on the issues, that the Appellant was not given a fair trial is misleading, therefore he urged this Court to discountenance the submissions of the Appellant’s counsel, and not disturb the findings and decision of the trial Court.

In reaction to Appellant’s submission in paragraph 4, learned counsel commended the testimony of PW2, as can be gleaned on page 86 of the record of appeal, in showing that the Appellant did not fire the gun at them.

On the issue of contradictions as argued by the Appellant, learned counsel submitted that it is not every minor contradiction that can vitiate the case of the prosecution, minor contradiction which does not affect the credibility of the witness will be of no use to the Appellant. He cited the cases of Attah v State (2010) 5 SCM 57 @160; Sule v State (2009) 8 SCM 113.

Learned counsel further contended that, to succeed in upturning a decision on the ground of contradictions and or discrepancies, it must be relevant and of such great magnitude that it would cause a miscarriage of justice.

On the issue whether, the Appellant was armed as at the time of the robbery incident, learned counsel submitted that it is settled in both the extra-judicial statement of PW1, Mrs. Bola Mustapha, whose testimony during her examination in chief, and even under cross-examination states unequivocally that, at the time she was attacked by the Appellant, he was armed with gun. Also, PW3, the IPO in her testimony stated on page 88 lines 15-16, that she recovered the gun at the scene of crime. Learned counsel reiterated the fact that this firmly corroborated the testimony of PW2, on page 85 line 12, that it was the police that came to recover the gun. Premised on the above testimonies from prosecution witnesses, learned counsel contended that there are no contradictions in the evidence of the prosecution witnesses, he urged this Court to so hold.

Learned counsel assumed that the gun was not recovered, nor tendered at the lower Court, he asked the question whether it will affect the decision of the lower Court? He answered in the negative. He cited the case of Olayinka v State (2007) 8 SCM 193.

Learned counsel contended that the issue of where or who recovered the gun exhibit is immaterial, in that the material things are that the ingredients of the offence of armed robbery has been established against the Appellant beyond reasonable doubt. He urged this Court to so hold.

RESOLUTION OF ISSUE 2
From the agitation of the appellant in this issue, in his Notice and Grounds of Appeal, the principal question for the determination of this issue actually falls within a very narrow compass. In point of fact, the appellant’s grouse against the said judgment of the lower Court, as evident in the above-cited issue 2, eventuated from its findings at page 129 of the record. Hear the views of the lower Court:
“Furthermore, l find that the content of Exhibit 002, the statement, is a graphic expression of the 1st accused family story, his educational background and work experience, and the company he keeps.
The accused also confirmed in his evidence-in-chief that he attended school at Itolu in Oladotun. The statement revealed that himself and two others namely Jimoh and Michael planned and carried out the robbery operation while carrying a locally made pistol. This piece of evidence is corroborated by the evidence of the PW1, that three men broke into her house and robbed her at gun point.
The accused also stated that the gun used in the robbery was abandoned, while his friend Michael who was carrying the gun escaped …l am of the view that piece of evidence contained in the statement of the 1st accused Exhibit 007 is not a piece of evidence which ordinarily will be within the knowledge of the PW3 W/Sgt Owailgot, if the 1st accused had not given her this information which she wrote down.”

As shown above, learned counsel for the appellant argued that the lower Court’s finding denied appellant a fair hearing.

(Interestingly, the appellant’s issue one is woven around the principal question of the breach of his right to fair hearing).

From the enchanting array of the decisions of the Supreme Court and this Court on the point, the trenchant provisions on the right to fair hearing – a right which is ordained in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) as follows:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
This Section 36(1) of the 1999 Constitution (supra) has therefore enshrined the fundamental right to fair hearing. This is one of the attributes of natural justice which has become part of our grund norm and therefore cannot be easily derogated from.
At this juncture, it is important to remark that the totality of this appeal is predicated on issues which were not ventilated in the Court below. The Appellant merely employed the term “fair hearing” to look for fault in an otherwise well, conducted trial. He was looking for a needle in a haystack. The term “fair hearing” as sacrosanct as it is, cannot be employed as a gimmick without foundation whatsoever to seek to nullify a well conducted trial in which parties have been afforded the opportunity to conduct their cases fairly. Fair hearing has been judicially interpreted to involve situations where whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Court or Tribunal was fair to all parties in the proceeding:
“The true test of fair hearing is the objective impression of a reasonable person who was present at the trial and his view on whether from his observation, justice has been done in the case.”
See MFA v. Inongha (2005) 7 NWLR (Pt 923) 1 at 23; Mohammed v. Kano N.A (1968) All NBR 424, Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) Whyte v. Police (1966) MMLR 215. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all parties to a case or matter. See Ariori v. Muano Elemo (1983) 1 SC 13; Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 at 448 para H; Robert Okafor v. A-G Anambra State (1991) 6 NWLR (Pt.200) 659 at 67.
The Apex Court has admonished severally that the rule of fair hearing is not a technical doctrine but one of substance and the test to be applied is whether a party entitled to be heard before deciding on his right was in fact adequately given the opportunity to be heard. See Okafor v. A-G. Anambra (1991) 6 NWLR (Pt.200) 659; UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) 376, Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 at 448.
In order to determine whether the hearing of a case was fair, the test to be applied is the impression of a reasonable person who was present at the trial and whether from his observation justice was done in the case. The mere spit fire of complaint of lack of fair hearing is not sufficient. The allegation must be based on facts deduced from the circumstances of the case. Oguntade JSC put it succinctly thus:
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment… A complaint founded on denial of fair hearing is an invitation to the Court hearing the appeal to consider whether or not the Court against which a complaint is made had been generally fair on the basis of equality to all the parties before it.”
In the instant case, the Appellant was adequately represented by a counsel throughout the proceedings in the lower Court. There was no single complaint of violation of any tenets of fair hearing.
From the record of appeal, no objection was made as to the admissibility of the Appellant’s statements Exhibit 002,007-007A at the point of tendering same.
In the case of Adeleke v State (2013) 12 SCM (PT2) 13 “where a counsel stands by and allows Exhibits to be tendered smoothly to become evidence without any objection, he cannot be heard to later complain about same. They thus become legally admitted evidence which the Court can rely on. See; Bello Shurumo v. The State (2010) 12 SCNJ 109, and Oseni v. The State (2012) 2 SCNJ 215 at 253.”
It has to be borne in mind that justice is two edged. In criminal cases, justice has to be done to both the accused as well as the complainant. In this case, there is clear evidence that the appellant is one of the Armed robbers that robbed one Mrs Bola Mustapha in her house of the sum of N10,000.00 on the 24th of August, 2014. It will therefore be acute travesty of justice to discharge the appellant who was fixed to the scene of robbery where he was arrested whilst trying to escape. This Court will not be a party to such an inroad to injustice.
It is worthy of note that in considering whether or not a proceeding of Court was in breach of the right of fair hearing of a party, the law as it applies to each case of allegation of breach of the right of fair hearing which must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited v. Alhaji Ibrahim Atta (2006) 12 NWLR (PT. 993) 144.
Part of the crux of the Appellant’s complaint in this appeal is that the lower Court breached his right of fair hearing, because there was no forensic test or laboratory test on the alleged gun in custody which is even seriously in doubt, if any gun was found on the Appellant at the scene of the crime, because in the evidence given by PW1, she said that the Appellant was taken to the police station with the gun, while PW2, said in his cross-examination that the alleged gun was left behind in the house. PW3 testified, that she obtained the statement of the complainant, and then visited the scene of crime with her team. At the scene one locally made gun was recovered. This testimony of the PW3, confirms the fact that the gun was retrieved from the scene of crime.
See Mobil Producing Unlimited v. Chief Simeon Monokpo & Ors (2003) 18 NWLR (PT. 52) 346, Eriobuna v. Obiorah (1999) 8 NWLR (PT. 616). The true test of fair hearing all said and done is therefore the impression of a reasonable man who was present at the trial whether from the observation, justice had been done in the case.
See Otapo v. Summonu (1987) 2 NWLR (PT. 58) 587, Wilson v. A.G of Bendel State (1985) 1 NWLR (PT 4) 572, A.U. Amadi v. Thomas Aplin & Co LTD (1972) ALL NLR 413, Mohammed Oladapo Ojengbede v. M.O. Esan & Anor (2001) 18 NWLR (Pt 746) 771.
From the above analysis, it cannot be said that the Appellant was condemned unheard. The right of fair hearing of the Appellant was scrupulously observed by the trial Court and was not in any manner breached and thus the resultant decision should be allowed to stand. See Federal Airport Authority of (Nig) LTD V. Wamal Express Services Nig Ltd (2011) 8 NWLR (PT. 249) 219 at 237, Dingyadi v. INEC (2010) 18 NWLR (PT. 1224) 1, Nwankudu v. Ibeto (2011) 2 NWLR (1231) 209, Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475, Adeyemi v. Ike Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27, Dan Musa V. Imuwa (2007) 17 NWLR (Pt. 1069) 391 Alstate Securities Ltd & Anor V. Adesoye Holdings Ltd (2013) 16 NWLR (Pt. 138) 470.
The Constitutional right of fair hearing of the Appellant was not violated at the trial. The trial was conducted with due observance of the rules of natural justice. He was rightly found guilty and convicted of the heinous offence of armed robbery.
Issue 2 is resolved in favour of the respondent.

On the community reading of the entire evidence and the circumstances surrounding this case, the findings of the Lower Court on the fact that the ingredients of armed robbery were proved beyond reasonable doubt by the prosecution is very overwhelming. The evidence which is unshaken under cross-examination is neither perverse, erroneous nor a violation of any known principle of law.

There is nothing weighty enough placed before this Court to disturb the findings of fact by the trial Court with respect to the evidence of the prosecution witnesses which the trial Court found as credible having had the opportunity of seeing and observing the demeanor of the witnesses.

On the totality of the foregoing, I hold the view also that this Court has no reason to disturb these findings of fact as they have not been shown by the appellant to be either perverse, unsupported by the evidence led or a violation of any known principle of law.
Issue 2 is resolved in favour of the respondent.

The issues raised for determination are hereby resolved in favour of the respondent and against the appellant. The decision of the trial Court is endorsed by me. The conviction and sentence of the appellant to death by hanging is hereby also affirmed.
The appeal lacks merit and it is accordingly dismissed.

TIJJANI ABUBAKAR, J.C.A.: I had a preview of the leading Judgment rendered in this appeal by my Lord and learned brother AKINBAMI JCA, who graciously granted me the privilege to do so. I am in agreement with the reasoning and conclusion, I adopt the entire Judgment as my own, I have nothing extra to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a review of the judgment of my learned brother, Fatima Omoro Akinbami JCA, and I am in agreement that this appeal lacks merit. The trial Court has painstakingly evaluated the evidence before it, before coming to its conclusion.

It is a settled principle of law that that where a trial Court has carried its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v. Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC.
I also dismiss this appeal and affirm the conviction and sentence of the Appellant by the lower Court.

Appearances: