UMUOWHERO v. STATE (2022)

UMUOWHERO v. STATE

(2022)LCN/16584(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, June 22, 2022

CA/AS/83C/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

EZEKIEL UMUOWHERO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the authority of the Court to decide matters before it or to take cognizance of matters presented before it in a formal manner. See Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325, 352. It is also a radical issue of competence and if a Court does not have jurisdiction, the proceedings are and remain a nullity no matter how well conducted and decided. The reason is that a defect in competence is not intrinsic to but it is extrinsic to the adjudication. PER EKANEM, J.C.A.

THE ELEMENTS OF THE COMPETENCE OF A COURT

WHETHER OR NOT CONSPIRACY IS A SEPARATE AND DISTINCE OFFENCE FROM THE SUBSTANTIVE OFFENCE

It should be stated that conspiracy is a separate and distinct offence from the substantive offence, and the fact that the prosecution has failed to prove the substantive offence does not necessarily result in acquittal for conspiracy. See Bouwor v. State (2016) 4 NWLR (Pt. 1502) 295, 310, Agugua v. State (2017) 10 NWLR (Pt. 1573) 254, 274 and Oloye v. State (2018) 14 NWLR (Pt. 1640) 509, 525. However, in Ikem v. State (1985) 4 SC (Pt. 2) 30, 61 Karibi-Whyte, JSC, held that:
“Having found the appellant not guilty of the substantive offence, he cannot be guilty of conspiracy to commit the offence with which he has been acquitted.” PER EKANEM, J.C.A.

THE CRIMINAL OFFENCE OF CONSPIRACY

Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In the case of the former, the very fact of the agreement is sufficient to sustain the charge. The prosecution is required to prove:
a. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
b. Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
c. That each of the accused persons individually participated in the agreement. See Ismail v. FRN (2020) 2 NWLR (Pt. 1707) 58, 109, Jibrin v. FRN (2020) 4 NWLR (Pt. 1714) 315, 338, Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 545-546 and Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238, 247. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd accused person in an information numbered as HCZ/10C/2010 that was filed at the High Court of Delta, Ozoro Judicial Division (the trial Court). The information had three counts of conspiracy to commit armed robbery, armed robbery and illegal possession of firearms contrary to Sections 1 (2) (a), and 3 (1) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 Vol. 14 of the Laws of the Federation of Nigeria, 2004.

After trial and taking of addresses, the trial Court (coram Onojovwo, J.) on 16/5/2018 found the appellant not guilty of the counts of armed robbery and illegal possession of firearms and so it discharged and acquitted him on those counts. It however found him guilty of conspiracy to commit armed robbery (count 1) and sentenced him to death by hanging or by firing squad as the Governor might direct.

Aggrieved by the decision and the sentence, the appellant appealed to this Court vide a notice of appeal filed on 3/8/2018 which incorporates five grounds of appeal. The notice of appeal was amended by the order of this Court and the amended notice of appeal bears a whooping seventeen grounds of appeal spread over 28 pages of what appears to be a brief of argument that is titled amended notice of appeal. I will hold my peace in respect of this piece of curiosity for the reason that the grounds of appeal are comprehensible though they needed not be so many.

The facts of the case leading to this appeal may be summarized as follows: on 11/6/2009, one Emmanuel Ogbogbo (the PW1) was travelling from Abbi to Owhelogbo and when he got to the latter place at about 8 pm, at a “bad spot”, he was robbed of his phones and the sum of N30,000.00 by two boys who were armed with cutlass and gun and who were masked. After the boys robbed him and fled, he reported the incident to the Owhelogbo vigilante. The vigilante swung into action, informing phone technicians or repairers in Owhelogbe to give information to them of any one who wanted to sell used phone. One of them called the PW2 to inform him of someone who visited him to charge a phone battery but he insisted that he should come with the phone which he did. The vigilante laid ambush until the person who went to charge the phone went to collect it and they arrested him. It turned out to be the 1st accused person who mentioned the appellant and others as being a part of the group that robbed the PW1. He (appellant) was apprehended by the vigilante. On the confession of the 1st accused person, the gun that was used for the attack was recovered and the appellant, and the 1st accused person were taken along with the phone/s to the Police. The PW1 identified one of the phones as his own by the means of his name that he had written under the battery cover of the phone. The appellant was said to have made a confessional statement which was tendered in evidence as Exhibit D.

The appellant denied involvement in the robbery and conspiracy. He insisted that he did not make Exhibit D.

In the appellant’s brief of argument that was settled by S. I. Dumbili, Esq., the following issues were formulated from the grounds of appeal for the determination of the appeal:
1. Whether, upon the evidence adduced and received at trial, the Honourable trial Court wrongly assumed the substantive jurisdiction to try the information in Count(1) of the charge No.: HCZ/10C/2010 (Distilled from Ground 1)
2. Whether on the evidence before the Honourable Trial Court, the Appellant was wrongly convicted and sentenced on count (1) of the charge No. HCZ/10C/2010 for the offence of conspiracy to commit robbery under the Robbery and Firearms Act, with which he was charged (Distilled from Grounds 11, IV, V, VI, VII, VIII, IX, XII, XIII, XIV, XV]
3. If issue 2 is resolved against the Appellant, whether the Honourable Trial Court was wrong to pass a different mode of sentence on the convicted Appellant under the Act by directing the mode of execution in a manner contrary to Section 1 (2) (3) of the Robbery and Firearms Act (Distilled from Ground XVI)

Counsel for the respondent, E. E. Erebe, Esq. Assistant Director, Ministry of Justice, Delta State, in his brief of argument formulated an issue for the determination of the appeal, to wit:
“Whether from the totality of evidence on record the trial judge was right in convicting the appellant for the offence of conspiracy to commit armed robbery after discharging him of the substantive offence.”

The issues distilled by appellant’s counsel reflect the complaints in the grounds of appeal better than the single issue distilled by respondent’s counsel and so I will be guided by them in the determination of the appeal.

ISSUE 1.
Appellant’s counsel submitted that the issue of jurisdiction can be raised at any time in a proceeding and that the trial Court wrongly assumed substantive jurisdiction to try the information in count 1 of the charge. He posited that the inclusion of count 1 worked injustice against the appellant as it is a count of conspiracy to commit an offence in the same information as a count of actually committing it, when the evidence to support the two counts is the same. He contended that the trial Court should have declined jurisdiction and discharged the appellant. He cited in support Aiyeola v. State (1969) 1 All NLR 303, Clerk v. State (1986) 4 NWLR (Pt. 35) 381 and R v. Dawson (1960) 1 WLR 163.

It was his further argument that the inclusion of count 1 in the information was an abuse of Court process. He added that there was a breach of the appellant’s right to fair hearing by the inclusion of count 1 in the information. Let me quickly say that in his issue 1, the appellant did not raise the issue of fair hearing and so I shall discountenance the argument of appellant’s counsel on fair hearing under this issue as that argument does not fall within the scope of issue 1.

Respondent’s counsel submitted that the offence of conspiracy is distinct from the substantive offence and that the trial Court had jurisdiction to try the information by virtue of Section 272 of the Constitution of Nigeria, 1999. He added that the elements to prove conspiracy and the substantive counts are different. He contended that issue 1 of the appellant is a fresh issue which requires leave of Court to be raised in an appeal. He urged the Court to discard the submission of appellant’s counsel as leave to raise the issue was not sought and obtained.

RESOLUTION
I shall quickly dispose of the submission of respondent’s counsel to the effect that the appellant ought to have sought and obtained leave to raise issue 1. The argument is in the nature of an objection to some of the grounds of appeal from which the issue is formulated. Such objection ought to be raised by way of a notice of motion seeking to strike out those grounds and consequently, the issue derived from them. Since the learned counsel for the respondent did not bother to do so but rather buried his objection like a land mine in the middle of his brief of argument, I shall discountenance the same. Besides, issue 1 is raised by the appellant as a jurisdictional issue which can be raised at any stage of proceedings without the need for leave of Court. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, 503 and Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, 523.

Jurisdiction is the authority of the Court to decide matters before it or to take cognizance of matters presented before it in a formal manner. See Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325, 352. It is also a radical issue of competence and if a Court does not have jurisdiction, the proceedings are and remain a nullity no matter how well conducted and decided. The reason is that a defect in competence is not intrinsic to but it is extrinsic to the adjudication.

In the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587, the Supreme Court set out the elements of competence of a Court as follows:
1. Where the Court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents it from exercising its jurisdiction, and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
In Attorney-General of Lagos State v. Dosunmu (1989) LPELR – 3154 (SC), the Supreme Court added three more elements, which for me are part of the elements above, to wit:
a. Where the Court has cognizance of the class of cases involved;
b. The proper parties are present.
c. The point to be decided is within the powers of the Court.

The jurisdiction of a Court may be substantive or territorial. The former refers to a matter over which a Court can adjudicate as expressly stipulated by the Constitution or by an enabling statute. The latter refers to the geographical area in which the matters brought before the Court for adjudication arose, since Courts are usually not seized of matters which occur outside their territory. See Dariye v. FRN supra, Roda v. FRN (2015) 10 NWLR (Pt. 1468) 427 and Belgore v. FRN supra.

The contention of the appellant in this instance is that the trial Court lacked the substantive jurisdiction to entertain and decide count 1 for the reason that evidence to determine the count was the same as evidence to prove the counts of the substantive offences. The first point to be made is that the trial Court had the substantive jurisdiction to try the offence of conspiracy to commit armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act. This is by virtue of Section 272 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 64 of the Criminal Procedure Law of Delta State which was the applicable law at the time the information was filed and heard.
The complaint as to including count 1 in the indictment which also contains the substantive offence goes to the fairness of the trial and has nothing to do with jurisdiction or abuse of process. In such a case, the Court is required to deal first with the substantive charge first and then proceed to see if the count of conspiracy should be there at all and whether it is made out. The answers to the questions decide the fate of the charge of conspiracy. This is the principle on the case of R v. Dawson (1960) 1 AER 558 also reported in (1960) 1 WLR 163 which has been followed and applied in Nigerian Courts in cases such as Aiyeola v. State supra, Clerk v. State supra, Amachree v. Nigerian Army (2002) LPELR – 5833 (CA) and Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238. The usual result of combining in a charge a count of conspiracy and one of the substantive offence is the discharge and acquittal of the accused person if the evidence in support of the count of conspiracy is the same as the evidence in support of the substantive offence. The reason is that it is prejudicial to the accused person because, inter alia, it results in evidence which otherwise would be inadmissible on the substantive charge against certain persons to be admissible. See Clerk v State supra. One such piece of evidence is that once agreement is shown to exist between the conspirators, evidence which is admissible against one conspirator is admissible against the other/s. See Osho v. State (2018) 13 NWLR (Pt. 1637) 474, 488.

The answer to question 1 as it is couched is in the negative and I resolved it against the appellant.

ISSUE 2.
This issue raises a query as to whether or not the appellant was wrongly convicted for the offence of conspiracy to commit armed robbery.

Appellant’s counsel contended that the burden of proof on the prosecution was not discharged. He noted that the trial Court had found the appellant not guilty of the substantive offences of armed robbery and illegal possession of firearms. It was his position that for a person to be guilty of conspiracy, he must have been cognizant of the object of the conspiracy. He submitted that Exhibit D, the confessional statement of the appellant, conflicts with the confessional statement of the 1st accused person (Exhibit B) as to the individual participation in the act charged in count 1 and that the conspiracy alleged is in respect of an offence that was said to have occurred on 11/6/2009 but the evidence adduced, particularly Exhibit D, was in respect of a robbery slated for 14/6/2009. He asserted that the trial Court wrongly treated the evidence of PW 2 and Exhibit B as corroborative of Exhibit D though the said evidence required corroboration.

Counsel argued that Exhibit D is not a confession of guilt in respect of the offence in count 1 but a qualified confession. He posited that having found that Exhibit D was not direct, positive or unequivocal as to commission of the crime, the trial Court should have given the appellant the benefit of doubt. He added that there was no overwhelming credible evidence in support of the alleged incriminating portion of Exhibit D. He contended that the trial Court did not consider other parts of the statement. He added that the statement is not a confession to robbery of 11/6/ 2009.

Continuing counsel referred to the finding of the learned trial judge that the confession in Exhibit D was not direct and positive, and submitted that reliance on Exhibit D to convict the appellant for conspiracy without more was wrong. He added that the trial Court excluded certain pieces of evidence from its judgment which pieces of evidence he set out in his brief of argument.

He referred to the finding of the trial Court that Exhibit D was made by the appellant and submitted that the trial Court erred in reaching that conclusion by examining and comparing the signature of the appellant in that document with his signature in Exhibit H in his chambers and not in the open Court. This, he submitted, amounted to doing cloistered justice. He argued that the trial Court did not test Exhibit D in the light of the fact that the appellant retracted it.

Respondent’s counsel submitted that conspiracy is a separate offence from the substantive offence charged and so an accused person could be discharged from the substantive offence and still be convicted for conspiracy and vice-versa. He stated that bare agreement to commit an offence is sufficient to sustain a charge of conspiracy. He referred to Exhibit D and submitted that it showed that the appellant and his cohort were in agreement to rob on 11/6/2009 along Abbi/Owhelogbo Road with the PW1 as the victim. It was his further submission that the confession was direct and positive and the trial judge rightly acted on the same in convicting the appellant, and that the confession was in respect of the offence of 11/6/2009.

RESOLUTION
Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In the case of the former, the very fact of the agreement is sufficient to sustain the charge. The prosecution is required to prove:
a. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
b. Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
c. That each of the accused persons individually participated in the agreement. See Ismail v. FRN (2020) 2 NWLR (Pt. 1707) 58, 109, Jibrin v. FRN (2020) 4 NWLR (Pt. 1714) 315, 338, Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 545-546 and Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238, 247.

The conviction of the appellant for conspiracy was based solely on Exhibit D, which the trial Court found to be confessional in respect of the conspiracy. This is clear from his Lordship’s finding at page 170 of the record that:
“As for the 2nd defendant, from his statement, Exhibit D, it is obvious that he and the 1st Defendant and some others now at large on 11-6-2009 met at Owhelogbo and ‘planned to go road and rob.’ In other words, the 1st Defendant and himself and others reached the agreement to rob people along the road on 11-6-2009. This satisfies all the ingredients of the offence of conspiracy to commit armed robbery.”

It should be noted that when Exhibit D was to be admitted in evidence, appellant objected to it on the basis that the statement was not his own. The trial Court rightly admitted the statement at that stage for the law is that where objection to admissibility of an extra-judicial statement of an accused person is on the basis that he did not make it, the Court is to admit the statement and at the stage of judgment determine the question. See Akeem v. State (2017) 18 NWLR (Pt. 1597) 311.

The learned trial judge in his judgment determined that the statement was made by the appellant. This he did by comparing the handwriting of the appellant in Exhibit H, which he was made to write in cross-examination, with the handwriting by which his name was written in four places on the confessional statement: his Lordship was persuaded that they looked alike. See page 167 of the record.
In the case of Obuobipi v. Obuforibo (2010) ALL FWLR (Pt. 546) 543, 566, it was held that where a trial judge compares a signature in dispute with an undisputed signature, he must read his observations to the parties in open Court and then call for the reaction of the parties before making his final finding on the issue. This is to avoid doing “cloistered justice” or turning a trial into an investigation. See also Ndoma-Egba v. ACB Plc (2005) 14 NWLR (Pt. 944) 79 and Duriminiya v. COP (1961) NNLR 70. On the other hand, in the case of Odutola v. Mabogunje (2013) LPELR – 1999 (SC), this Court compared signatures and arrived at its conclusion without inviting the parties for their reaction. The Supreme Court upheld the decision of this Court. See also Akpan v. Obot (2019) LPELR – 47150 (CA). Section 101 of the Evidence Act, 2011 empowers the Court to direct any person present in Court to write word or figure or to make finger impression for the purpose of enabling the Court to compare the same with any word, figure or finger impression and this is to enable the Court to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made.
Whether or not the Court can come to a decision on such a point without reading out its observation to the parties in open Court and calling on them for their reaction, in my view, depends on whether or not the similarity or dissimilarity is obvious to the naked eye. Where it is obvious, the need to read the Court’s observation in open Court and call for the reaction of the parties does not arise: where the opposite is the case, then the trial judge is bound to follow the procedure of reading his observation to the parties in open Court and calling for their reaction before reaching his final decision.
I draw strength for the view above from the dictum of De Lestang, CJ, Federal Supreme Court, in the case of Wilcox v. Queen (1961) 2 SCNLR 296 which was quoted in Ndoma-Egba v. ACB Ltd supra as follows:
“It is not unusual for the Courts in a clear case to form their own opinion as to handwriting and in R v Smith, 3 Cr App. R.87 as well as Rex v Rickard, upon which Mr. David relies, the Court of Criminal Appeal in England formed its opinion by comparing the handwriting alleged to be that of the appellant with a genuine specimen of his handwriting. So also did the West African Court of Appeal in R v Apena, 13 WACA 173. In the present case, the dissimilarities between the signatures of Nwobu are apparent to the naked eye and, in our view, the course pursued by the learned trial judge was not improper in the circumstances.”
I have compared the handwriting in Exhibit D with the handwriting in Exhibit F, and my observation is that the similarity which the trial Court found to be present in both writings is not so apparent to the naked eye. The learned trial judge ought to have read his observation to the parties in open Court and called for their reaction. The result of what I have said is that what the trial Court did by examining the documents in his chambers to reach its final conclusion without reading its observation to the parties and inviting their reaction amounted to doing cloistered justice in the circumstances of this case. It therefore erred in relying on Exhibit D to convict the appellant.

Since this Court is not the ultimate Court, I shall go on to consider the reliance of the trial Court on the document to convict the appellant in case I am found on appeal to be wrong.

It is to be noted that the trial Court discharged and acquitted the appellant in respect of the substantive offence of armed robbery on the basis that:
“…there is no evidence from the PW1, PW2 and PW3 linking the 2nd Defendant with the robbery. The only thing connecting the 2nd Defendant to the offence is his statement Exhibit D which he has denied in Court.” See page 167 of the record.

It should be stated that conspiracy is a separate and distinct offence from the substantive offence, and the fact that the prosecution has failed to prove the substantive offence does not necessarily result in acquittal for conspiracy. See Bouwor v. State (2016) 4 NWLR (Pt. 1502) 295, 310, Agugua v. State (2017) 10 NWLR (Pt. 1573) 254, 274 and Oloye v. State (2018) 14 NWLR (Pt. 1640) 509, 525. However, in Ikem v. State (1985) 4 SC (Pt. 2) 30, 61 Karibi-Whyte, JSC, held that:
“Having found the appellant not guilty of the substantive offence, he cannot be guilty of conspiracy to commit the offence with which he has been acquitted.”

It appears that the position expressed by his Lordship holds where the proof of the offence of conspiracy is intertwined with the proof of the substantive offence. Thus in Golit v. IGP (2020) 7 NWLR (Pt. 1722) 40, 58, Sanusi, JSC, stated that:
“The trial Court therefore goofed when after rejecting evidence adduced in proof of counts 2-21 then for it to later use the same rejected evidence and for it use or apply same in convicting the appellant of the offence alleged in count one of the amended charge, more especially since no fresh evidence was adduced in proof of the offence.”

Be it noted that counts 2 -21 in Golit’s case were in respect of substantive offences while count 1 was in respect of conspiracy.

In the instant matter, the trial Court at pages 167 and 168 of the record rejected the only available evidence presented by the prosecution against the appellant in respect of the substantive offence of armed robbery based on the following reasoning:
“I have already indicated earlier in this judgment what the 2nd Defendant told the police. While he spoke elaborately of how he and some other boys waylaid and attempted to rob a lady along Abbi-Owhelogbo Road on 14-6-2009 but the operation was frustrated because she had no valuable on her which they could take, he said very little about the robbery of 11-6-2009, the one for which they were in Court. He simply stated he, the 1st Defendant and two others met at Owhelogbo and planned to go to the road and actually robbed and that it was other boys who wore masks on the day of the two robberies. He did not say who was robbed on 11-6-2009. Was it a man, woman, boy or girl? Where and at what time was the robbery executed? What was the victim travelling on? On foot, bicycle, motorcycle or motorcar? He also did not say what was taken from the victim or how the operation was carried out.
In my respectful view, the confession of the 2nd Defendant in Exhibit D with regard to the robbery of 11-6-2011 is not direct, not positive and not equivocal. In the face of the 2nd Defendant’s stout denial of any involvement in the said robbery in his evidence, I am unable to act on the vague confession in Exhibit D.” See pages 167 and 168 of the record.

In essence, the trial Court found that the confession in Exhibit D was not positive, direct and unequivocal as to the guilt of the appellant in respect of the substantive offences in the information and so he could not be convicted on it alone. This accords with the law which is that for a confession to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the accused person is charged. See Obosi v. State (1965) NMLR 119 and Shurumo v. State (2010) ALL FWLR (Pt. 551) 1406. Since the trial Court found that the extra-judicial statement of the appellant was not positive, direct and unequivocal as to the offence of armed robbery, the same reasoning should have applied to the count of conspiracy to commit armed robbery. This is because there was no certainty that the confession as to an agreement to rob was in respect of the robbery against the PW1. A general statement amounting to implication of a crime cannot be regarded as confession. See Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280, 329. Exhibit D did not amount to a confession of guilt in respect of the offence in count 1 of the information.

What is more, the trial Court convicted the appellant of the offence of conspiracy on the basis of the alleged confessional statement without looking for evidence outside the so-called confession to show that it is true and consistent with other ascertained facts which had been proved. In Osho v. State (2018) 13 NWLR (Pt. 1637) 474, 489, the Supreme Court held that although it is the law that an accused person cannot be convicted of conspiracy to commit an offence on the strength of his confession alone unless there is an independent evidence that at least the other person has conspired with him, it is the practice of the Courts to insist that for a confessional statement to be made the only basis for the conviction of an accused person, there should be other evidence which shows that the confession is true and consistent with other ascertained facts which had been proved. Having held that there was no evidence from PW1, PW2 and PW3 linking the appellant with the robbery and that the only thing connecting him to the offence is Exhibit D, I wonder where the trial Court could have found other evidence to show that the alleged confession was true, that is, if it had made any attempt to do so.

It is therefore my view that charging the appellant in count 1 for conspiracy along with the substantive offence of armed robbery resulted in a miscarriage of justice as evidence in proof of the count of conspiracy was also the same evidence in proof of the substantive offence. Besides, the offence of conspiracy was not on the merit proved against him.

I therefore enter an affirmative answer to issue 2 and resolve it in favour of the appellant.

ISSUE 3
This issue queries the mode of the execution of the sentence of death passed on the appellant as directed by the trial Court.

Appellant’s counsel contended that under the Robbery and Firearms (Special Provisions) Act, it is only if at or immediately after the time of the robbery the offender wounds or uses any personal violence to any person, that the offender shall be liable upon conviction to a sentence of death. He also referred to Section 410 (1) of the Administration of Criminal Justice Law of Delta State. It was his further contention that a trial Court cannot pass a different mode of sentence on a convict under the Robbery Act. He cited and relied on Ikem v. State (1985) 1 NWLR (Pt. 2) 378. It was finally argued that the trial Court could have made recommendation for mercy pursuant to Sections 311 (3) and 312 of the Administration of Criminal Justice Law.

Respondent counsel argued that the slip in passing a different mode of sentence by the trial Court did not occasion a miscarriage of justice.

The argument of appellant’s counsel relating to when sentence of death can be imposed on a convicted person under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act is outside the orbit of issue 3 as crafted by him. Issue 3 is as to the trial Court directing the mode of execution of sentence as provided for in Section 1 (2) (3) of the said Act. It has nothing to do with the circumstances under which death sentence may be imposed by the Court. I shall therefore discountenance the said argument. In any event, appellant’s counsel blissfully ignored Section 1 (2) (a) of the said Act which specifies death sentence if the offender is armed with any firearm or any offensive weapon or is with any person so armed. I will however not pursue the point any further since it is an academic point not being within the precinct of the issue under consideration.

By Section 1 (2) (3) of the Robbery and Firearms (Special Provisions) Act, “The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct.”
In the case of Ikem v. State (1985) LPELR – 1472 (SC) page 30, Coker, JSC, stated that:
“It is my view that the duty of directing the mode of execution does not lie with the trial judge but with the Governor of Bendel State under Section 1 (2) (3) of the Robbery and Firearms Decree No. 47 of 1970.”

Now, in this instance the trial judge pronounced sentence as follows:
“The sentence of this Court upon you Ezekiel Umuowhero (m) is that you be hanged by the neck until you be dead or suffer death by firing squad as the Governor may direct and may the Lord have mercy on your soul.”

The learned trial judge in passing sentence simply repeated what is provided for in Section 1 (2) (3) of the Act. In Ikem’s case supra, the trial Court imposed death by hanging thus hampering the discretion of the Governor. Assuming that the conviction of the appellant was correct, which is not so, the sentence pronounced by the learned trial judge cannot be faulted. I fail to see why appellant’s counsel raised this issue in the first place. In raising the issue, appellant’s counsel was simply playing Russian roulette.

I resolve the issue against the appellant.

On the whole and in the light of my resolution of issue 2, I find that the appeal has merit and it succeeds. I set aside the judgment of the trial Court against the appellant and, in its place, I enter a verdict of not guilty for the appellant. Accordingly, the appellant is discharged and acquitted.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: My Lord, J.E. EKANEM, JCA. obliged me with the draft of the leading judgment in this appeal. I agree with the reasoning and conclusion therein. I abide by the consequential orders made therein.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read before now a draft of the judgment of my learned brother, Joseph Eyo Ekanem, JCA. I agree with the apt reasoning and conclusion therein, except to add that;

A trial Court by virtue of Section 272 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and Section 64 of the Criminal Procedure Law of Delta State, (which was applicable law at the time the information was filed and heard) has the substantive jurisdiction to try the offence of conspiracy to commit armed robbery.
See JACOB AREMU V INSPECTOR GENERAL OF POLICE (1965) LPELR-25269 (SC), AMINU TANKO V THE STATE (2009) LPELR-3136 (SC) AND ADEYEMI PEDRO V THE STATE (2015) LPELR-24547 (CA).

In the instant matter, the trial Court found that the Appellant’s confession in Exhibit D was not positive, direct and unequivocal in respect of the substantive offences in the information and so could not be convicted on it alone. This accords with the law as to the commission of the offence for which the accused person is charged.
See KANU V STATE (1952) 14 WACA 30, OGEDENGBE V STATE (2014) 12 NWLR (PT. 1421) 338, 358 AND DIBIA V STATE (2017) 12 NWLR (PT. 1579) 196, 219 AND 220.

However, the same reasoning should have applied to the count of conspiracy to commit armed robbery. Furthermore, I am of the humble view that charging the appellant in count 1 for conspiracy along with the substantive offence of armed robbery resulted in a miscarriage of justice as the evidence in proof of the count of conspiracy was also the same evidence in proof of the substantive offence.

The learned trial judge in passing sentence simply repeated what is provided for in Section 1 (2) (3) of the Robbery and Firearms (Special Provisions) Act, and I also fail to see why appellant’s counsel raised the issue by querying the mode of the execution of the sentence of death passed on the appellant. Assuming that the conviction of the appellant was correct, (which is not), the sentence pronounced by the learned trial judge cannot be faulted.

It is on the account of the foregoing, that I also join my Lord to allow the appeal and set aside the judgment of the trial Court against the appellant.

I abide by the consequential orders in the leading judgment.