KASALI v. STATE OF LAGOS (2022)

KASALI v. STATE OF LAGOS

(2022)LCN/16986(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, June 09, 2022

CA/L/774CB/2018

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

AHMED KASALI APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

THE PRESUMPTION OF INNOCENCE UNTIL PROVEN GUILTY

It is merely restating the obvious that our criminal justice system is adversarial in nature and substance, the corollary of which is that every person charged with a criminal offence is presumed innocent until proved otherwise: S. 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”). It is incompatible with the presumption of innocence to continue a criminal trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused. See THE PROSECUTOR v LAURENT GBAGBO & ANOR [ICC-02/11-01/15 — delivered on 16/8/19]. Thus, the burden is always on the prosecution to establish the guilt of the accused person on the criminal threshold of proof beyond reasonable doubt. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See Ss. 135 and 137 of the Evidence Act, 2011. The prosecution has the onus of proving all the essential ingredients of the offence(s) charged beyond reasonable doubt: STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused: MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if the Court were left in a state of doubt or uncertainty on the totality of the evidence adduced, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal: UKPE v STATE [2001] 18 WRN 84 at 105.
However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt: MILLER v MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373 –per Lord Denning, AKALEZI v THE STATE [1993] 2 NWLR (PT. 273) 1 and EBEINWE v STATE [2011] 1 MJSC 27), but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1996] 6 NWLR (PT 607) 449 and ONI v STATE [2003] 31 WRN 104 at 122. The prosecution is not bound to prove the case with mathematical precision or exactitude: ADEOYE v THE STATE (2011) LPELR-9091(CA). What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice: BAKARE v STATE (1987) 3 SC 1. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See BABARINDE v STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v STATE [2013] 16 NWLR (PT 1381) 556.

WHETHER OR NOT CONSPIRACY IS AN OFFENE IN ITSELF

ELEMENTS TO BE PROVED TO SECURE THE CONVICTION OF ARMED ROBBERY

On the second count, which deals with the substantive offence of armed robbery, the prosecution is obligated to demonstrate the following in order to secure conviction: (i) the factual reality of a robbery or series of robberies; (ii) the defendant’s participation in the robbery or series of robberies; and (iii) at the material time the offence was being committed, the defendant was armed with a firearm or offensive weapon or in the company of those so armed: EMMANUEL EYO v THE STATE (2016) LPELR-48154(SC) at 17-18, OLAYINKA v STATE [2007] 9 NWLR (PT. 1040) 561, NWACHUKWU v STATE [1985] 3 NWLR (PT. 11) 218, SUBERU v STATE [2010] 8 NWLR (PT 1197) 586, BOZIN v THE STATE [1985] 2 NWLR (PT 8) 465, ANI v THE STATE [2003] 11 NWLR (PT 830) 145, ATTAH v THE STATE [2010] 10 NWLR (PT 1201) 190 at 244, OGUDO v STATE[2012] ALL FWLR (PT 629) 1011 and FOLORUNSHO ALUFOHAI v THE STATE supra amongst a host of other cases. The prosecution is enjoined to prove all three ingredients beyond reasonable doubt. See CHUKWUKA OGUDO v STATE (2011) 12 SCNJ (PT. 1) 22, [2011] 18 NWLR (PT. 1278) 1. PER AFFEN, J.C.A.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): The High Court of Lagos State (coram: Ogunsanya, J.) convicted and sentenced the Appellant [Ahmed Kasali] to death (alongside three co-defendants) in a considered judgment delivered on 28/2/18 in Charge No. ID/43/13: State of Lagos v Ahmed Kasali & 3 Ors upon a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Ss. 297 and 295(2) of the Criminal Law of Lagos State 2011. This appeal is an expression of the Appellant’s discontent with the judgment (which lies at pp. 203–230 of the record of appeal). The Appellant faulted the judgment on six grounds set out in an Amended Notice of Appeal filed on 18/11/21 (which relates back to 10/4/18 when the original notice of appeal was filed within time). In keeping with the procedure for prosecuting and resisting criminal appeals in this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief filed on 18/11/21 was deemed properly filed on 25/1/22; the Respondent’s Brief was filed on 4/2/22; whilst the Appellant’s Reply Brief filed on 25/2/22 was deemed properly filed at the hearing of this appeal on 17/3/22.

The facts undergirding the criminal indictment that generated this appeal (as can be gleaned from the records) are not complex or convoluted. Between 12 a.m. and 1 a.m on 23/9/11, Jubril Akinoluwa Gbenga (PW2) and Afolabi Ademola (PW3) were the occupants of a tanker loaded with kerosene, moving from Apapa to Isolo in Lagos. PW3 was the driver of the truck whilst PW3 was on the passenger seat. The tanker slowed down at a bad portion of the road as they were about to link the Apapa – Oshodi Expressway. A vanagon bus crossed the tanker at that point. The occupants of the bus (including the Appellant and two men in military uniform one of whom had a Military Bayonet) accused PW2 and PW3 of reckless driving and ordered them to alight from the tanker and board the vanagon bus. They complied and sat on the floor of the bus which had no seats. The occupants of the bus threatened to injure PW2 and PW3 whenever they attempted to escape. PW2 eventually jumped out of the bus when it slowed down at Alaba market, and was rescued in an unconscious state by policemen from Festac Police Station who were on patrol. PW3 escaped as well. The Appellant and others were arrested, and the tanker was recovered the following day at a different location in Apapa, Lagos. The case was subsequently transferred from Area E Police Station by one Sgt Omale Ali to the State Criminal Investigation Department (SCID), Panti, Lagos whereat Sgt Goddy Osuyi (PW1) took over the investigation; and the Appellant and his co-defendants were subsequently arraigned, tried and eventually convicted and sentenced by the lower Court as aforesaid.

At p. 3 of the main record of appeal lies the two-count information dated 21/9/12 upon which the Appellant (and his three co-defendants) stood trial before the lower Court. The specifics of the information (signed by Mrs. Olabisi Ogungbesan, Director of Public Prosecutions) read thusly:
“STATEMENT OF OFFENCE – FIRST COUNT
Conspiracy to commit Armed Robbery contrary to Section 297 of the Criminal Law, No. 11, Laws of Lagos State 2011.
PARTICULARS OF OFFENCE – FIRST COUNT
Ahmed Kasali, Okechukwu Ubah, Sgt. Bello Ojoh, L/Cpl Dantami Gambo and others at large on or about 23rd of September 2011 about 12:30 hours at Techno Oil Depot, Kirikiri, Apapa, Lagos in the Lagos Judicial Division did conspire to rob one Jubril Rafiu Oluwagbenga.
STATEMENT OF OFFENCE – SECOND COUNT
Armed Robbery contrary to Section 295(2)(a) of the Criminal Law, No. 11, Laws of Lagos State 2011.
PARTICULARS OF OFFENCE – SECOND COUNT
Ahmed Kasali, Okechukwu Ubah, Sgt. Bello Ojoh, L/Cpl. Dantani Gambo and others at large on or about 23rd of September 2011 about 1230 hours at Techno Oil Depot, Kirikiri, Apapa, Lagos in the Lagos Judicial Division while armed with offensive weapons, to wit: knives and other dangerous weapons robbed one Mr. Jubril Rafiu Oluwagbenga of a truck with registration number XU 580 KSF containing thirty-three thousand litres (33,000 ltr) of Kerosene valued at the sum of ………”

The records reveal that the Appellant [and his co-defendants] were initially arraigned before Okunnu, J. on 14/5/13. They pleaded ‘not guilty’. The case was subsequently reassigned to Ogunsanya, J. and a re-arraignment was carried out on 3/12/13. The Appellant [and his co-defendants] reiterated their ‘not-guilty’ plea, whereupon a full-dressed trial was conducted. In a frantic bid to discharge the non-shifting burden of establishing guilt on the criminal threshold of proof beyond reasonable doubt, the Respondent (qua prosecution) fielded three witnesses and tendered exhibits, including Military Bayonet (Exhibit P1) and the Appellant’s extra-judicial statement made on 10/10/11 at State CID, Panti, Lagos (admitted in evidence as Exhibit P2 after a trial-within-trial was conducted to ascertain its voluntariness vel non). The Appellant and his co-defendants testified in their own defence and did not tender any exhibits.

From the six grounds of appeal raised in the Amended Notice of Appeal, three issues for determination are distilled in the Appellant’s Brief as follows:
(i) Whether the evidence presented by the prosecution met the standard of proof beyond reasonable doubt sufficient to sustain a conviction for conspiracy and armed robbery thereby leading to the sentencing of the Appellant to death. (Distilled from Grounds 1 and 6).
(ii) Having regard to the withholding of material evidence by the prosecution, whether the learned trial Judge properly evaluated the evidence presented before the Court, before convicting the Appellant and sentencing the Appellant to death (Distilled from Grounds 2, 4 and 5).
(iii) Whether the lower Court was right to convict the Appellant on his retracted confessional statement without conducting proper veracity tests (Distilled from Ground 3).

The Respondent, on its part, identified two issues in the Respondent’s brief as follows:
(i) Whether from the totality of evidence placed before the trial Judge, the Prosecution was able to establish the guilt of Appellant beyond reasonable doubt so as to warrant the conviction and sentence of all Defendants (Grounds 1, 2, 4, 5 and 6).
(ii) Was the confessional statement involuntary and entirely relied upon by the [learned] trial Judge? (Ground 3).

What is immediately obvious is that the two sets of issues identified by the parties are not markedly dissimilar. The Appellant’s first and second issues and the Respondent’s first issue condescend on the lower Court’s evaluation of evidence, relative to the burden of proof in a criminal trial such as the one that generated the

instant appeal; whilst the Appellant’s third issue and the Respondent’s second issue revolve around the extent of the lower Court’s compliance (or lack thereof) with the preconditions for relying and acting upon a retracted confessional statement in convicting the Appellant, which is equally an attack on the lower Court’s evaluation of evidence. It being so, I will adopt the three issues identified by the Appellant, who after all is the proponent of this appeal; even as all three issues can conveniently be considered together.

Appellant’s submission
On Issues one and two, the Appellant underscored the presumption of innocence that inures in favour of an accused person as well as the prosecution’s burden to establish guilt on the criminal threshold of proof beyond reasonable doubt irrespective of any confessional statements made to the police, calling in aid S. 36(5) CFRN and the cases of OKOH v STATE (2014) LPELR-22587(SC) and OKE UTUYORUME v STATE (2010) LPELR-4710(CA). He maintained that the prosecution failed to meet the required standard of proof as the ingredients of conspiracy and armed robbery were not proved beyond reasonable doubt and that the conduct of the matter was tantamount to requiring the Appellant to prove his innocence, citing DAWAI v STATE [2017] LPELR-43835(SC) 1 at 9 (on the ingredients of the offence of armed robbery); that the prosecution did not place any material evidence before the trial Court to show that the tanker and its contents were stolen by the Appellant; and that no evidence was led to show that the tanker was fully loaded with 33,000 litres of kerosine but the lower Court merely relied on the evidence of prosecution witnesses notwithstanding that the police admitted to not investigating any missing litres of kerosine and PW1 equally admitted that kerosine was recovered with the tanker. The Appellant queried, rhetorically, how a charge of armed robbery could stand since the prosecution was unable to prove that anything was stolen or taken illegally, and maintained that the lower Court erred in recording a conviction notwithstanding that a vital ingredient of armed robbery was not proved. The cases of BELLO & ANOR v STATE (2015) LPELR-40411(CA) 1 at 17, ABIEKE & ANOR v STATE (1975) LPELR-8042(sc) and AFRIBANK NIGERIA PLC v HOMELUX CONSTRUCTION CO. LTD (2008) LPELR-9020(SC) are cited (on the Court’s duty not to base its findings and decisions on speculation); and that having not mentioned any missing quantity of kerosine to the Police at SCID Panti as well as admitted under cross-examination that he was absent when the truck was recovered, the testimony of PW2 should be discountenanced for being an afterthought vide OLATIDOYE v THE STATE (2010) LPELR-9079(CA).

The Appellant argued that PW2 and PW3 gave conflicting figures on quantity of kerosine allegedly stolen as 8,000 and 11,000 litres respectively, whilst the lower Court put it at 33,000 litres – which is a material inconsistency showing that nothing was in fact stolen and robbery cannot be said to have been proved beyond reasonable doubt; that failure on the part of the police to conduct investigation linking the Appellant to the alleged crime is fatal to the prosecution, citing AL-MUSTAPHA v STATE [2013] 17 NWLR (PT. 1383) 350; that the case is at best one of assault by DW3 and DW4 who sought to protect the Appellant and DW2 who gave them a free ride; that even if a compartment of the tanker was stolen as alleged, the police officer from Area E who transferred the matter to SCID Panti admitted in his extrajudicial statement (copied at p. 14 of the records) that two suspects caught syphoning kerosine from the tanker were brought in from Trinity Police Station, but these suspects were not produced in Court and no evidence was led to link them or the movement of tanker to the Appellant, insisting that the “suggestion by the Prosecution that the Appellant and his co-defendants were involved and acted through proxies in moving the truck is simply an imaginative guess that is unsupported by evidence and cannot be relied upon by a Court of law”. It was contended that the Appellant was neither in possession of a firearm nor armed with any offensive weapon, and DW3 and DW4 in whose company he was arrested were in lawful possession of a Military Bayonet which is ordinarily an offensive weapon but no evidence was led to show that it was used for an illegal purpose; that by S. 39 of the Firearms Act, possession of a Military Bayonet by DW3 and DW4 who are military personnel is not illegal, citing OKASHETU v STATE (2016) LPELR-40611(SC) (on what constitutes unlawful possession of firearms) and JOHN IDO v THE STATE (2011) LPELR-9271(CA) (on the proposition that the mere fact that military officers are armed per se does not mean that they are armed robbers); and that suspicion however strong is not sufficient to secure conviction vide ABIEKE & ANOR v STATE supra.

Citing CLEMENT v FRN (2019) LPELR-47232(CA) and AUTA v THE STATE (2018) LPELR-44490(CA) 1 at 31-32, it was contended that no evidence was led to establish any conspiracy by the Appellant and other defendants to rob PW2 and PW3 of the tanker and its content; that the Investigative Police Officer (PW1) admitted that no investigation was conducted and his testimony did not link the Appellant with those who purportedly stole the kerosene; and that the prosecution’s inability to prove armed robbery beyond reasonable doubt signalled the failure of the count of conspiracy, citing ARIBIGBOLA v THE STATE (2010) LPELR-9164(CA). The Appellant harped on the duty of a trial Court to evaluate all relevant evidence placed before it vide OLUFOSOYE & ORS v OLORUNFEMI (1989) LPELR-2615(SC) –per Oputa JSC, HAMZA v STATE (2016) LPELR-41557 (CA) 1 at 13 and EDWIN v STATE (2019) LPELR-46896 (SC) 1 at 10-11 and maintained that the trial Court merely recited the evidence led by both sides and chose to rely entirely on the prosecution’s evidence but rejected the evidence led by the defence without proffering any reasons, in a judgment that is replete with misrepresentations not only as to the quantity of kerosene allegedly stolen but also that available eyewitness account establish the fact of robbery (p. 224 of the Record of Appeal) in the face of violent inconsistencies in the testimonies of PW2 (Manager) and PW3 (Truck Driver), insisting that PW2 and PW3 who conceded that they were in a bus headed to the Barracks and did not witness the truck being moved or its content being removed cannot be said to be eyewitnesses as held in OLUWATOYIN v STATE (2018) LPELR-44441(CA) and UDE v STATE 2016 14 NWLR (PT 1531) 122 at 158, yet the lower Court accepted their speculation that some faceless “partners” of the Appellant they did not see must have stolen kerosene from the truck after they left the scene of crime.

The Appellant referred to SALAWU v STATE (2009) LPELR-8867 (CA) at 42-43 and contended that the prosecution withheld material evidence in its possession showing that Sgt Omale Ali (who transferred the case file from Area E Police Station to SCID Panti as conceded by PW1) wrote in his extrajudicial statement (copied at p. 14 of the records) that two persons were arrested as they were syphoning fuel from the tanker that same night, but he was neither called as a witness nor was his statement produced in evidence. This Court was urged to invoke S. 167 (d) of the Evidence Act 2011 and presume that the withheld evidence is unfavourable to the prosecution, citing UMAR v STATE (2014) LPELR-23190(SC) which followed ONWUJUBA v OBIENU [1991] 4 NWLR (PT 183) 16 (SC) on the two conditions that must be satisfied before a Court will presume withholding of evidence.

It was further contended that the Appellant and his co-defendants gave uncontroverted evidence that the vanagon bus was damaged by the reckless driving of PW3 which made the military men (DW3 and DW4) to stop the tanker and arrest its occupants, but the prosecution deliberately withheld the bus that was recovered by the police and thereby prevented the lower Court from examining it and make informed findings on the veracity of the Appellant’s version of facts, insisting that the Prosecution was bound to tender all relevant evidence irrespective of whether such evidence is favourable to the accused person vide BASSEY DAN UDO EYOP v THE STATE (2012) LPELR-20210(CA) 1 at 52-53, DANDARE v STATE (1967) NMLR 56 and OGUDO v STATE (2012) 12 MJSC (PT 1) 108 at 140, BELLO v STATE (1966) LPELR-25291 (SC) 16 and YUSUF v STATE (2018) LPELR-46718(CA) at 28-29. The Appellant equally faulted the lower Court for failing to visit the locus criminis notwithstanding that it acknowledged two conflicting possibilities that: “One wonders whether it was in the traffic that they pursued the tanker and stopped it or it was on a free road”.

On Issue three, the Appellant argued that the lower Court did not advert its mind to settled principles of law governing evaluation of retracted confessional statements and failed to ask itself certain vital questions as it was enjoined to do, citing CHUKWUKA OGUDO v THE STATE (2011) LPELR-860 (SC); that there was no evidence on record outside the confessional statement showing that the Appellant agreed with any other person to rob the tanker and its content; that Exhibit P2 alleged that there were about five occupants of the vanagon bus and that the fifth person went ahead to drive the truck away immediately they overtook and stopped the truck (p. 32 of the Record of Appeal), which is contrary to the testimony of the three prosecution witnesses who were not only consistent on the point that there were only four persons in the bus (pp. 58 and 67 of Supplementary Record of Appeal) and gave no account of any fifth person driving the bus away, but also testified that the truck was still at the same position when they were being driven away. The Appellant pointed out that the testimonial evidence of prosecution witnesses corroborates the Appellant’s oral testimony in Court (to the effect that he and other defendants were all in the bus heading towards the barracks) and exposes the falsity of the account contained in the retracted confessional statement (Exhibit P2) which ought to be disregarded for being materially inconsistent with other pieces of evidence on record as it was practically impossible for the Appellant to have moved the tanker or its content as alleged; that the confession was not possible as same was merely concocted by the police, and the prosecution failed woefully to lead evidence outside of the confessional statement showing any armed robbery and/or conspiracy involving the Appellant; and that the foregoing betrays the lower Court’s claim in its judgment that it had applied the veracity tests to determine the weight to attach to the confessional statement, citing OSENI v STATE (2012) LPELR-7833(SC) 24.

The Appellant’s further contention is that instead of conducting a proper investigation as enjoined in ONAH v THE STATE (1985) LPELR (2668) 1 at 18, the police were rather quick to concoct a confessional statement which was unsupported by independent evidence upon which the prosecution unfortunately relied in preferring a charge against the Appellant, and the trial Court ought not to have attached any weight to a confessional statement that did not pass the above veracity test. This Court was urged to allow the appeal, set aside the judgment of the lower Court, and discharge and acquit the Appellant accordingly.

Respondent’s submission
On behalf of the Respondent, it is submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, but establishing guilt with compelling and conclusive evidence: a degree of compulsion which is consistent with a high degree of probability, citing IREGU EJIMA HASSAN v THE STATE (2016) LPELR-42554(SC); and that because actual proof of agreement is not easy to come by, conspiracy is generally a matter of inference drawn from certain criminal acts done in pursuance of an apparent common criminal purpose between two or more persons. The cases of USUFU v THE STATE [2007] 3 NWLR (PT 1020) at 94, ALARAPE v THE STATE [2001] 5 NWLR (PT 705] at 79, OYAKHIRE v THE STATE [2006] 15 NWLR (PT 1001) at 157 and NJOVENS v THE STATE (1973) 5 S. C at 17 are cited. The Respondent maintained that the offence of conspiracy is established once the substantive offence has been proved beyond reasonable doubt as rightly held by the Learned Trial Judge vide KADIRI v STATE (2019) LPELR-47714 (CA), ABIOYE v THE STATE [1987] 2 NWLR (PT 58) 645 at 653 – 654, AMADI v THE STATE [1993] 3 NWLR (PT 314) 644 at 677, TEMITOPE v THE STATE (2010) LPELR (37521) 1 at 24, FRN v USMAN (2018) LPELR (43894) 1 at 23-24 and LATEEF v FRN (2010) LPELR (9144) 1 at 22-23; and that insofar as common intention is proved, it is unnecessary to show that conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time, placing reliance on EMMANUEL B. AKPAN v THE STATE (2016) LPELR-41156(CA)1 at 9-10 and ABACHA v THE STATE (2003) 3 ACLR 344 are relied upon.

The Respondent referred to the three modes of evidential proof in a criminal trial, citing OJO v STATE (2018) LPELR-44699 (SC), as well as the elements to be proved in a charge of armed robbery vide OPEYEMI v STATE (2019) LPELR-48764 (SC) 1 at 19 and KAREEM OLATINWO v STATE [2013] All FWLR (PT 685) 312 at 334, and pointed out that apart from the confessional statements of the defendants admitted as Exhibits P2, P3, P4, P5, P7 and P8, eyewitness account of the incident by PW2 and PW3 was available before the lower Court in the instant case. Citing SEGUN AKINLOLU v THE STATE (2015) LPELR-25986(SC) at 41-42 and OGUEJIOFOR ILODIGIWE v THE STATE (2012) LPELR-9342(SC) on the nature of the evidence of an eyewitness, the Respondent contended that the evidence of PW2 and PW3 established that there was robbery on 23/9/11 when the Appellant and others directed PW2 and PW3 to come down from the tanker and enter the vanagon bus leaving behind a truck containing 33,000 litres of kerosene which was later found at a different location with one compartment gone and only 22,000 litres left. The Respondent pointed out that the foundation of the offence of armed robbery is the existence of a clear act that amounts to stealing as held in AMINU TANKO v THE STATE (2009) LPELR-3136(SC) and queried what could be the intent of the Appellant and his co-defendants other than robbery when they crossed a loaded tanker in the middle of the night and specifically instructed the driver (PW3) to leave the key on the ignition before prevailing on the two occupants to enter a bus. It was argued that there was clear evidence before the lower Court which revealed that a Military Bayonet (Exhibit P1) being an offensive weapon was recovered from the 3rd co-defendant who was with the Appellant and others in the same vanagon bus when the incident happened; and that the Appellant’s co-defendant put Exhibit P1 that was [ordinarily] in his lawful possession to unlawful use. The provisions of S. 298 of the Criminal Law of Lagos State 2011 and Ss. 15(1) and 11(1) of the Robbery and Firearms (Special Provisions) Act (on the definition of firearm and offensive weapon), as well as the case of OKIKI FALEYE v THE STATE (2012) LPELR-20429(CA), are referred to.

The further submission of the Respondent is that the testimonial evidence of PW1, PW2 and PW3 firmly established the Appellant’s participation in the offence; that investigation conducted by PW1 revealed that the Appellant along with his co-defendants and others at large committed the unlawful act which led to the dismissal of 3rd co-defendant from the Nigerian Army before they were handed over to the State CID, insisting that authorities of the Nigerian Army would not have dismissed him if he was not found to have used his status as a military officer to commit a crime as the one for which he was convicted by the trial Court. The Respondent maintained that whatever contradictions alluded to by the Appellant do not go to the roots of the case nor are they substantial enough to affect the prosecution’s case, citing NELSON FRIDAY v THE STATE (2016) LPELR-40638(SC) and OCHEMAJE v THE STATE (2008) 15 NWLR (PT 1109) 57; that contrary to the Appellant’s contention, the lower Court’s exclamation – “One wonders whether it was in the traffic that they pursued and stopped it or it was on a free road” – only goes to show that the Learned Trial Judge actually evaluated and placed the evidence adduced by both sides on the imaginary scale before rejecting the account given by the defence as an afterthought; that the case of OLOWU v THE NIGERIA NAVY (2006) LPELR-11815 (CA) establishes that an Appellate Court has no jurisdiction to lightly interfere with assessment and evaluation of evidence by a trial Court in the absence of special circumstances warranting such interference.

The Respondent contended that visiting the locus in quo [or locus criminis] only becomes necessary to clear conflicting evidence, but such a visit was needless in the case at hand as the incident occurred in 2011 whilst trial was conducted about 4 or 5 years later, citing STATE v ANIAKOR & ORS (2016) LPELR-41040 (CA) in support of the proposition that visit to the locus lies within the discretion of the Court; that as held in OBOT v STATE (2014) LPELR-23130 (CA), the testimony of an Investigating Police Officer (IPO) such as PW1 does not amount to hearsay; and that there is no basis for invoking the presumption of withholding evidence in S. 167(d) of the Evidence Act 2011 since the prosecution proffered sufficient evidence on the content of the tanker before and after the incident and was not bound to call a host of witnesses, including Sgt Omale Ali whose untendered extra-judicial statement (as contained in the proof of evidence) does not constitute legal evidence that can be acted upon by a Court of law vide OLORUNFEMI v THE STATE (2018) LPELR-45984(CA) and STATE v OGBUBUNJO (2001) LPELR-3223(SC) 1 at 38. The Respondent insisted that it was too late in the day for the Appellant to object to the voluntariness of Exhibit P2 which was admitted after conducting a trial-within-trial, against which decision there is no appeal, calling in aid ADUNBI v STATE (2018) LPELR-45005(CA) and DEMO OSENI v THE STATE (2012) LPELR-7833(SC); and that the Appellant’s statement (Exhibit P2) was rightly admitted by the trial Court which, at any rate, did not rely entirely [or solely?] on it in convicting the Appellant and others: rather the trial Court acted on the basis of overwhelming evidence placed before it including the confessional statement which was subjected to the six-way veracity test, citing ALAO v STATE (2019) LPELR-47856(SC). This Court has been urged to dismiss the appeal and affirm the judgment of the lower Court which convicted and sentenced the Appellant.

Appellant’s reply
Replicando, the Appellant contended that the reference made by the Respondent to the earlier appeal lodged by a co-defendant (which has already been heard and determined) is misconceived, and this Court owes a duty to consider the instant separate and distinct appeal by the Appellant on its own merit; that the Respondent did not produce any certificate of conviction (as stipulated in S. 248 of the Evidence Act, 2011) to substantiate the assertion that the 3rd and 4th co-defendants were Court-martialled and dismissed from the Nigerian Army for armed robbery; and that even if it is assumed (without conceding) that the 3rd and 4th defendants were tried by the Court Martial for armed robbery, the very fact that they were not sentenced to death (which is the mandatory punishment for armed robbery under the Armed Forces Act, Cap. A20, LFN 2004) is clear proof of their innocence, and the Respondent’s contrary submission is speculative and dangerous, citing ADEGBITE v STATE (2017) LPELR-42584(SC). The Court was urged to discountenance the Respondent’s submissions and allow the appeal.

Resolution of appeal
It is merely restating the obvious that our criminal justice system is adversarial in nature and substance, the corollary of which is that every person charged with a criminal offence is presumed innocent until proved otherwise: S. 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”). It is incompatible with the presumption of innocence to continue a criminal trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused. See THE PROSECUTOR v LAURENT GBAGBO & ANOR [ICC-02/11-01/15 — delivered on 16/8/19]. Thus, the burden is always on the prosecution to establish the guilt of the accused person on the criminal threshold of proof beyond reasonable doubt. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See Ss. 135 and 137 of the Evidence Act, 2011. The prosecution has the onus of proving all the essential ingredients of the offence(s) charged beyond reasonable doubt: STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused: MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if the Court were left in a state of doubt or uncertainty on the totality of the evidence adduced, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal: UKPE v STATE [2001] 18 WRN 84 at 105.
However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt: MILLER v MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373 –per Lord Denning, AKALEZI v THE STATE [1993] 2 NWLR (PT. 273) 1 and EBEINWE v STATE [2011] 1 MJSC 27), but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1996] 6 NWLR (PT 607) 449 and ONI v STATE [2003] 31 WRN 104 at 122. The prosecution is not bound to prove the case with mathematical precision or exactitude: ADEOYE v THE STATE (2011) LPELR-9091(CA). What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice: BAKARE v STATE (1987) 3 SC 1. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See BABARINDE v STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v STATE [2013] 16 NWLR (PT 1381) 556.

The three modes of evidential proof in a criminal trial such as the present are: (a) direct evidence of witnesses; (b) circumstantial evidence; and (c) the confessional statement voluntarily made by a criminal defendant: ADIO v THE STATE (1986) 5 S.C. 194 at 219-220, EGBOHONOME v STATE [1993] 7 NWLR (PT 306), EMEKA v THE STATE [2002] 14 NWLR (PT 734) 666 at 683, OKUDO v THE STATE [2011] 3 NWLR (PT 1234) 209 at 236, OLABODE ABIRIFON v THE STATE [2013] 13 NWLR (PT 1372) 587 at 596 and OJO v STATE (2018) LPELR-44699(SC).

Now, the point has already been made that all three issues distilled by the Appellant border on the lower Court’s evaluation of evidence, and can conveniently be taken together. Perception of evidence and evaluation of evidence is the forte of a trial Court. Perception entails receiving all relevant evidence into its records, whilst evaluation has to do with weighing the evidence received in the context of surrounding circumstances: OLUFOSOYE & ORS v OLORUNFEMI (1989) LPELR-2615(SC) –per Oputa JSC. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision. Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence [see WACHUKWU v OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v AJEH [2011] 10 NWLR (PT 1256) 574]; and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v STATE [2013] 5 NWLR (PT 1347) 360. The relevant enquiry is always as to whether the above queries were answered positively in the judgment appealed against.

The Appellant impugns the decision of the lower Court for convicting him of conspiracy to commit armed robbery and armed robbery on the basis of the testimonial evidence of PW1, PW2 and PW3, and his confessional statement (Exhibit P2) which, in his estimation, did not make out the alleged offences against him. The first count of the charge preferred against the Appellant and his three co-defendants bordered on the inchoate offence of conspiracy which consists not merely in the intention of two or more, but in the agreement of two (not being a husband and wife) or more persons to do an unlawful act or to do a lawful act by an unlawful means. See ISHOLA v THE STATE (1972) 10 SC 63. So long as design rests in intention alone, it is not indictable; but when two or more persons agree to carry their design into effect, the very plot is an act in itself punishable if it is for a criminal object or for the deployment of criminal means. See MAJEKODUNMI v R (1952) 14 WACA 64. The gravamen of the offence of conspiracy lies not in the doing of the act or effectuating the purpose for which the conspiracy is conceived, but in the forming of the scheme or agreement between the parties. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Owing to its very nature, the offence of conspiracy is seldom proved by direct evidence but by circumstantial evidence and inference deducible from certain proved acts. See OBIAKOR v STATE (2002) 6 SC (PT II) 33 at 40, EGUNJOBI v FRN [2001] 53 WRN 20 at 54 and STATE v OSOBA [2004] 21 WRN 113. Since the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inferences drawn from surrounding circumstances. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence, not of the fact in issue but of other facts from which the fact in issue can be inferred, which evidence must be of such quality that leads compellingly to an inference of guilt of the accused. See ODUNEYE v STATE [2001] 13 WRN 88, (2001) 1 SC (PT 1) 1 at 7, SULE v THE STATE [2008] 17 NWLR (PT 1169) 33 and ADEJOBI v THE STATE (2011) LPELR (97) 1 at 36.

The point to underscore here is that conspiracy is an offence of itself, quite distinct and separate from the substantive offence. See STATE v SALAWU (2011) LPELR-8252 (SC). Indeed, in a trial for conspiracy and a substantive offence, it is not unusual for a Court to discharge an accused for the substantive offence but convict him for conspiracy. This is so because the ingredients for the offences are different and the actual commission of the substantive offence is not necessary to ground a conviction for conspiracy. See OBIAKOR v STATE supra at 39, ATANO v A-G BENDEL STATE [1988] 2 NWLR (PT 75) 201 at 226–227, BALOGUN v A-G, OGUN STATE (2002) 2 SC (PT II) 89 and KAYODE v STATE (2016) LPELR-40028(SC). Nevertheless, where an indictment entails both conspiracy and a substantive offence, the proper approach is to grapple first with the substantive offence and then proceed to ascertain how far the count of conspiracy has been made out since conspiracy is generally a matter of inference and can be inferred where the substantive offence is established: ERIM v STATE [1994] 5 NWLR (PT 346) 522 at 538 and ODUNEYE v STATE [2001] 13 WRN 88.

On the second count, which deals with the substantive offence of armed robbery, the prosecution is obligated to demonstrate the following in order to secure conviction: (i) the factual reality of a robbery or series of robberies; (ii) the defendant’s participation in the robbery or series of robberies; and (iii) at the material time the offence was being committed, the defendant was armed with a firearm or offensive weapon or in the company of those so armed: EMMANUEL EYO v THE STATE (2016) LPELR-48154(SC) at 17-18, OLAYINKA v STATE [2007] 9 NWLR (PT. 1040) 561, NWACHUKWU v STATE [1985] 3 NWLR (PT. 11) 218, SUBERU v STATE [2010] 8 NWLR (PT 1197) 586, BOZIN v THE STATE [1985] 2 NWLR (PT 8) 465, ANI v THE STATE [2003] 11 NWLR (PT 830) 145, ATTAH v THE STATE [2010] 10 NWLR (PT 1201) 190 at 244, OGUDO v STATE[2012] ALL FWLR (PT 629) 1011 and FOLORUNSHO ALUFOHAI v THE STATE supra amongst a host of other cases. The prosecution is enjoined to prove all three ingredients beyond reasonable doubt. See CHUKWUKA OGUDO v STATE (2011) 12 SCNJ (PT. 1) 22, [2011] 18 NWLR (PT. 1278) 1.

The Appellant contends that the prosecution failed to prove the essential elements of armed robbery to warrant his conviction by the lower Court. Specifically, the Appellant insists that the prosecution did not prove that there was any robbery, and/or that the robbers were armed with a dangerous weapon or he was one of the robbers. The three modes of evidential proof by which the prosecution may establish the guilt of a criminal defendant are set out hereinbefore. In the case at hand, the prosecution relied on eyewitness account of the events that occurred between 12 a.m. and 1 a.m. on 23/9/11, as well as the Appellant’s confessional statement (Exhibit P2) and circumstantial evidence. Often, the presence of the victim in establishing a charge of armed robbery is crucial. See CHUKWUKA OGUDO v STATE (2011) 12 SCNJ (PT. 1) 22 [2011] 18 NWLR (PT. 1278) 1 at 31-32. The testimonial evidence of PW2 and PW3 (who are the victims) are contained in the supplementary record. They narrated how the Appellant and his co-defendants blocked their tanker carrying kerosene with a vanagon bus, ordered them to alight from the tanker and board the bus. PW3 (driver) specifically testified that he was ordered to leave the key on the ignition and keep the engine of the tanker running. PW3 stated that when he eventually escaped from the vanagon bus and got to the locus criminis, the tanker was nowhere to be found, until it was subsequently recovered somewhere else in Apapa with about 11,000 litres of kerosene stolen. PW2 put the figure at 8,000 litres of kerosene; and the Appellant, quite understandably, has highlighted this as a major inconsistency in the case put forward by the prosecution. We shall grapple with the Appellant’s contention in the course of this judgment. PW2 testified that the tanker and its content were stolen by confederates of the Appellant who are at large. Both PW2 and PW3 testified that the Appellant and his co-defendants threatened them with a Exhibit P1 (Military Bayonet), dagger and belt when they were seated on the floor of vanagon bus and attempted to escape. These pieces of evidence, as they seem to me, amply demonstrate that a robbery was perpetrated by the Appellant and his co-defendants on 23/9/11; and even though there is no evidence that the Appellant was armed, he was nevertheless in the company of those who were armed with Exhibit P1 and a dagger, which are offensive weapons within the meaning and intendment of S. 298 of the Criminal law of Lagos State, 2011. That makes the Appellant a participant in an armed robbery under and by virtue of S. 295(2) of the of the Criminal law of Lagos State, 2011 and the lower Court cannot be faulted for making that finding.

The Appellant has contended, rather strenuously, that the 3rd and 4th co-defendants (Sgt. Bello Ojoh and L/Cpl Dantani Gambo) are military personnel entitled to bear the military bayonet (Exhibit P1) found in their lawful possession on the day of arrest, insisting that military men are authorised to carry knives and firearms anywhere in Nigeria. There is no gainsaying that by S. 39 of the Firearms Act, military personnel are entitled to bear firearms and ammunitions issued to them for official purposes. However, the 3rd and 4th co-defendants were not charged with unlawful possession of Exhibit P1. No. Rather, the testimony of PW2 and PW3 is that they were threatened with Exhibit P1, dagger and belt when they attempted to escape from the vanagon bus they boarded after they were ordered to come down from the tanker loaded with kerosine and leave the engine running. That piece of evidence was not discredited under cross-examination. Quite clearly therefore, the 3rd and 4th co-defendants put the Military Bayonet to unlawful use, and the fact that they had lawful possession of it is of no moment. What is material is that the Appellant was in the company of persons armed with offensive weapons at all material times when the PW2 and PW3 were dispossessed of the tanker loaded with kerosene.

The further contention that ‘there was no evidence linking the movement of the truck or stealing of its content to the Appellant, and the suggestion by the prosecution that the Appellant and his co-defendants were involved or acted through proxies in moving the truck is simply a speculative and imaginative guess unsupported by evidence’ clearly loses sight of the logical inference deducible from the uncontradicted evidence of the tanker driver (PW3) that upon being crossed by the vanagon bus and asked to come down from the tanker, he sought to turn off the engine but was ordered to leave the key on the ignition and keep the engine running. Acting on the above uncontradicted testimonial evidence as it was eminently entitled to do [see BASSEY v STATE [2019] 18 NWLR (PT 1703) 126 and SALE v STATE [2020] 1 NWLR (PT 1705) 205], the lower Court queried (at p. 224 of the main records): “PW3 testified that he was ordered to leave the engine running. If the Defendants were not planning to steal the tanker [but] only intended to punish PW2 and PW3, why did they insist that the engine of the tanker must be left running??” and proceeded to hold (at p. 226) that: “The Defendants clearly had other partners who took over the tanker”. The fact that the Appellant and his co-defendants took PW2 and PW3 (being the only occupants of the tanker) away in a vanagon bus, when the engine of the tanker was still running, speaks volumes, and the lower Court cannot be faulted for making the above inference which, at any rate, finds support in the Appellant’s confessional statement (Exhibit P2).

The contention that the lower Court merely restated the evidence led by the parties and preferred the Respondent’s version over the Appellant’s account without undertaking any evaluation is certainly not borne out by the records. Quite the contrary, the lower Court examined and evaluated the testimonial evidence put forward by the Appellant and his co-defendants and rejected same for being replete with contradictions and therefore unreliable. For instance, the lower Court pointed out (at p. 228 of the main record) that DW1 (i.e. Appellant) stated in his evidence-in-chief that DW3 and DW4 (i.e. 3rd and 4th co-defendants) confronted the two men in the trailer [for allegedly driving recklessly], but stated under cross-examination that he was meeting them for the first time in Court. The supplementary records bear out the Appellant’s inconsistent testimony, and dislodges his contention.
As stated hereinbefore, the Appellant highlighted the differing figures given by PW2 and PW3 as to quantity of kerosene said to have been stolen, and contended that the inconsistency points to the fact that nothing was in fact stolen. It is correct that whereas PW2 stated that 8,000 litres of kerosene had been stolen from the tanker at the time it was recovered, PW3 said 11,000 litres of kerosene were stolen. But is this discrepancy in figures crucial? I do not think so. In law, a contradiction to be taken into account in the scheme of a criminal trial must be one that is material to the enquiry. An accused person is entitled to a verdict of acquittal when there are discrepancies or contradictions on material points in the prosecution’s case which create some doubt in the mind of the Court: EFFIA v THE STATE (1999) 6 SCNJ 92 at 98 –per Ejiwunmi, JSC and AGBO v STATE [2006] 6 NWLR (PT. 977) 545 The law, as I have always understood it, is that where two or more witnesses testify in a criminal prosecution and the testimony of such witnesses is contradictory and irreconcilable, it would be illogical to accept and believe the evidence of such witnesses. See AGBO v STATE supra at 564, ONUBOGU v THE STATE (1974) 9 SC 1 at 20, NASAMU v STATE (1979) 6-9 SC 153 and AMADI & ORS v STATE (1993) 11 SCNJ 68 at 78. But contradictions that are collateral or merely peripheral to the enquiry do not dent the case of the party against whom it is raised. SeeEMEKA v STATE [2014] 13 NWLR (PT 1425) 614, ANYASODOR v STATE [2018] 8 NWLR (PT 1620) 107 and EBEINWE v STATE supra. Indeed, the law treats minor variations in the testimony of witnesses as an index of veracity:ISAH v STATE [2018] 8 NWLR (PT 1621) 346. On the flip side, the law treats with circumspection evidence given by two or more witnesses which is the same in every minute detail: GALADIMA v STATE [2017] 14 NWLR (PT 1585) 187. Against this backdrop, it does not seem to me that the differing figures given by PW2 and PW3 on the quantity of kerosene recovered with the tanker are material to the charge preferred against the Appellant and his co-defendants. The differential in figure neither affects the cogency or validity of the charge nor whittles down the evidential utility or force of the evidence given by PW2 and PW3 who are victims of the robbery, and ex ipso facto eyewitnesses. See OGU v COP [2018] 8 NWLR (PT 1620) 134, GIKI v STATE [2018] 6 NWLR (PT 1615) 237 and CHIDOZIE v COP [2018] 6 NWLR (PT. 1615) 373. What seems to me material is that the tanker and some of its content was recovered elsewhere than the locus criminis.

A major plank of the Appellant’s grouse is that relevant evidence favourable to him, notably the extrajudicial statement of Sgt Omale Ali was suppressed by the prosecution, and he has urged this Court to invoke S. 167(d) of the Evidence Act 2011 and presume that the withheld evidence is unfavourable to the prosecution, placing reliance on UMAR v STATE (2014) LPELR-23190(SC) and ONWUJUBA v OBIENU [1991] 4 NWLR (PT 183) 16 (SC) on the two conditions that must be satisfied before a Court will presume withholding of evidence, namely: (a) that such evidence existed, and (b) that it was that party that withheld it. I have examined the records. Sgt Omale Ali investigated the matter at Area E Police Station and subsequently transferred case file to SCID Panti. The evidence of PW1 (Sgt Goddy Osuyi) concedes this fact. The relevant excerpt of the extra-judicial statement of Sgt Omale Ali dated 10/10/11 (which lies at p. 14 of the records) reads: “Currently, on the 28/9/2011 another two suspect was (sic) brought from Trinity Police Station page B5 and B6 that those were trying to syphon the Kerosene. (They) when they brought their statement was taken under caution (sic), while that of the Complainant was taken voluntarily and they sign their colon (sic)… When go through their statement (sic) Page B1- B6 they accepted that they committed the offence”. According to the Appellant, the above extra-judicial statement is favourable to him as it indicates those who actually stole the kerosene, but the same was deliberately suppressed by the prosecution which not only failed to tender it, but equally failed to field Sgt Omale Ali as a witness. His contention therefore is that the presumption of withholding evidence applies, and that this is fatal to the prosecution.

It would seem, with great respect, that the Appellant’s contention is misconceived on two fronts. First, an appeal is by way of rehearing. See Order 7 Rule, Court of Appeal Rules, 2021. Being the appellate Court it is, this Court can only rehear what has been heard by, or presented before, the Court below, save where leave is sought and obtained to raise a fresh issue. An appellate Court is bound to base its consideration of every appeal before it on legal evidence upon which the lower Court acted. Although the extrajudicial statement of Sgt Omale Ali forms part of the proof of evidence contained in the record of appeal, this Court is not at liberty to consider it. Since the statement was not tendered as an exhibit before the lower Court, it is not legal evidence that can be acted upon.

The case of ESANGBEDO v THE STATE [1989] 4 NWLR (PT. 113) 57 donates the proposition that an extra-judicial statement can be deployed in a criminal trial for the purpose of cross examining a witness who made it in order to discredit him; but if the maker is not called to testify, his extra judicial statement may only be tendered to prove that it was made in the course of investigation and no more, but its contents cannot be relied upon as legal evidence for not having been made on oath. See also THE STATE v OGBUBUNJO (2001) 1 SC (PT 1) 20.

Second, even though the deliberate withholding of an extrajudicial statement which could swing the case one way or the other has been held to impact negatively on the overall fairness of the trial, and raise a presumption that the statement is unfavourable to the prosecution [see CHUKWUKA OGUDO v STATE [2011] 18 NWLR (PT. 1278) 1 at 21], the law that has crystalised is that before the duty on the prosecution to tender at trial all extra judicial statements made by an accused person in the course of investigation can be elevated to the pedestal of withholding evidence that raises presumptions in his favour, there must be evidence on record that a distinct demand was made for the production of the extrajudicial statements, which demand was rebuffed by the prosecution: AREMU v STATE [1991] 7 NWLR (PT 201) 1 at 17–18 (SC), BUSARI v STATE (2015) LPELR 2479(SC), GAJI v THE STATE (1975) NNLR 98, ADISA v STATE [2015] 4 NWLR (PT. 1450) 475 at 505 (SC) and ADEKOYA v THE STATE (2010) LPELR 3604 (CA). In the case at hand, there is nothing in the records which suggests even remotely that the Appellant made a demand on the prosecution to produce the extra-judicial statement of Sgt. Omale Ali. The Appellant’s complaint, as I understand it, is not that he was not served with the proof of evidence containing the statement. It is if, and only if, the Appellant had issued either a subpoena duces tecum or given notice to produce the statement and the Respondent had refused to comply that the plea of withholding evidence under S. 167(d) of the Evidence Act would lie. See NAZIRU AUWALU v STATE (2020) LPELR-50323(CA) and MUYILI AHMED v STATE OF LAGOS (2021) LPELR-54629(CA) 1 at 20–22. It being so, I cannot but decline the Appellant’s invitation to invoke the presumption of withholding evidence under S. 167(d) of the Evidence Act, 2011.

It is further forcefully contended that the Appellant’s retracted confessional statement (Exhibit P2) was not subjected to the veracity test as required by law, and the trial Court ought not to have attached any weight to it. In law, an extrajudicial statement made voluntarily by a person suspected to have committed a criminal offence, be it confessional or in denial of the crime with which he is being charged, is relevant and admissible. See OKOH v STATE [2014] 8 NWLR (PT. 1410) 502 (SC). A confessional statement is always a handy potent tool in the arsenal of the prosecution for proving the offence charged. A free and voluntary confession of guilt made by an accused person, if direct and positive, is sufficient to warrant conviction without any corroborative evidence insofar as the Court is satisfied as to the truth of the confession. See YESUFU v STATE (1976) 6 SC 167 at 163, IDOWU v STATE (2000) 7 SC (PT 11) 50 at 62 and NSOFOR v STATE [2004] 18 NWLR (PT 905) 292. It is instructive that the Appellant retracted Exhibit P2, but the law is settled beyond peradventure that the retraction of a confessional statement or denial by an accused person that he made the statement does not ipso facto render the statement inadmissible. See ALARAPE v STATE [2001] 14 WRN 1 at 20, KAREEM v FRN [2001] 49 WRN 97 at 111, OBISI v CHIEF OF NAVAL STAFF [2002] 19 WRN 26 at 38-39 and EGBOHONOME v THE STATE [1993] 7 NWLR (PT 306) 383 at 341. The mere fact that a confessional statement is retracted by an accused person does not preclude the Court from acting on the basis of the retracted statement. See IKEMSON v THE STATE supra at 455 at 468-469, NWACHUKWU v THE STATE (2007) 12 SCM 447 at 455 and SHANDE v STATE (2005) 22 NSCQR (PT. 2) 756. The Court can convict on the basis of a retracted confessional statement. See MANU GALADIMA v THE STATE (2013) 14 MRSCJ at 81 & 82. It is for the trial Court to take the retraction into consideration in determining the evidential utility of, or weight to be attached to, the confessional statement.
The test to be applied in this regard as laid down in the case of R v SYKES (1913) 8 Cr. App. R. 233 which was approved by the West African Court of Appeal in KANU v THE KING (1952/55) 14 WACA 30 and followed in a long line of cases, is that a trial Judge confronted with a retracted confessional statement should ask himself the following pertinent queries: (i) Is there anything outside the confession to show that it is true?; (ii) Is it corroborated?; (iii) Are the relevant statements made in it of facts, true as far as they can be tested?; (iv) Was the prisoner one who had the opportunity of committing the crime?; (v) Is his confession possible?; and (vi) Is it consistent with other facts which have been ascertained and proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it would invariably be upheld unless other grounds of objection exist; but if the confessional statement fails these tests, no conviction can properly be founded on it. See IKPO v STATE (2016) LPELR-40114 (SC), ACHABUA v STATE (1976) NSCC 74 and GABRIEL v STATE [2010] 6 NWLR (PT 1190) 280 at 290.

I have given a careful and insightful consideration to Exhibit P2 (i.e. the confessional statement made by the Appellant at SCID on 10/10/11 copied at pp. 32–33 of the main record) wherein the Appellant is recorded to have stated thusly:
“While we were waiting at Berger Suya, Ojo, Sunday and Joseph went to monitor the truck from the depot. Later Ojo called to informed (sic) us that the truck had loaded and was on its way towards where we pined down. Later the truck drove past us and the soldiers asked the five of us to enter the bus and we followed the truck behind. At a pot-hole on the expressway, the truck slow (sic) down then the bus overtook him and crossed the truck. The two soldiers came down from the bus. The Sgt who was holding a knife, ordered the driver of the truck and the other man with him to come down. When the two men came down, he ordered them into the Volkswagen bus. The other boy with us who is to drive the truck came down from the bus to enable him move the truck away. Then we drove off towards Alaba with the truck driver and the other occupant…” (underlining supplied)

Whilst it is correct that Exhibit P2 talks about there being five persons in the vanagon bus as against four occupants stated in the testimonial evidence of the prosecution witnesses and the Appellant, this discrepancy does not ipso facto render the confessional statement improbable or untrue as contended by the Appellant. The fundamental rule of construction of instruments, agreements or documents (including extrajudicial statements made by accused persons) is that its several parts are not to be construed in fragments, but as an entire whole in order to garner the true intendment of the maker. See SCHROEDER & CO v MAJOR & CO (NIG) LTD [1989] 2 NWLR (PT 101) 1 and OJOKOLOBO v ALAMU [1987] 3 NWLR (PT 61) 377. It does not seem to me that the overall tenor of Exhibit P2, when construed as a whole, is discordant with the evidence adduced by prosecution witnesses. Contrary to the arguments forcefully pressed on behalf of the Appellant, there is nothing in Exhibit P2 which suggests even remotely that the ‘fifth person went ahead to drive the truck away immediately they overtook and stopped the truck’. A careful examination of Exhibit P2 reveals that it did not also say the fifth person came down from the vanagon bus after PW2 and PW3 had come into the bus. What Exhibit P2 simply says is that: “The other boy with us who is to drive the truck came down from the bus to enable him move the truck away”. I reckon therefore that it is not unlikely that the fifth person had already come down from the vanagon bus before PW2 and PW3 were ordered by the soldiers to alight from the tanker and board the bus, which explains why they only saw the four occupants about whom they testified.

I find no inconsistency between Exhibit P2 and the evidence adduced by prosecution witnesses that the Appellant and his co-defendants crossed the tanker and ordered PW2 and PW3 to come down and board the vanagon bus, or that the Appellant and his co-defendants were together in the bus with PW2 and PW3 where the 3rd co-defendant had in his possession the military bayonet (Exhibit P1). There is equally no contradiction that PW2 jumped out of the bus while PW3 escaped from the bus before the Appellant and his co-defendants were arrested by the Police, as well as the subsequent recovery of the tanker at a place other than the locus criminis. It is instructive that Exhibit P2 was put through the crucible of a trial-within-trial along with the extrajudicial statements of other defendants and found to have been voluntarily made. A trial-within-trial (or voir dire) is a separate and distinct trial from the main trial (see AUTA v STATE (1975) 4 SC 125) and any party dissatisfied with the decision ensuing from it is at liberty to lodge an appeal against it; but there is no indication that the Appellant did so, and the lower Court was not inhibited in any way from acting upon it. Especially is this so as there was ample evidence external to Exhibit P2 showing that it is possible, true and corroborated. Being one of the occupants of the vanagon bus, the Appellant clearly had the opportunity to commit the offences with which he was charged, even as the relevant statements of facts contained in the statement are not untrue. The veracity test was thus satisfied.

As stated hereinbefore, the overall tenor of Exhibit P2 is not inconsistent with the evidence adduced by especially PW2 and PW3 who were the victims of the robbery. Thus, when considered against the backdrop that the lower Court did not act solely on the basis of Exhibit P2, but equally took into consideration the testimonial evidence of PW2 and PW3 which amply fixed the Appellant as having committed the offences with which he was charged alongside three co-defendants, the lower Court was on firma terra in recording a verdict of guilt. Both PW2 and PW3 recognised the Appellant as one of the occupants of the vanagon bus that crossed the tanker loaded with kerosene and ordered them to alight from it and board the bus which drove off with them. The tanker had been moved away when PW3 escaped from the vanagon bus and returned to the scene, only for it to be recovered elsewhere the following day with one compartment missing, leaving less than the 33,000 litres it contained into it. PW1 stated under cross-examination (at p. 56 of the Supplementary Record) that he confirmed from documents brought to their office by the Manager (PW2) that 33,000 litres of kerosene were loaded into the tanker at the Kerosene Depot in Apapa. PW2 was emphatic that he saw the Defendant’s faces clearly during the incident with the aid of the tanker’s full light that was on, and that he equally recognised them at the police station. The testimonial evidence of PW2 and PW3 as to what transpired on 23/9/11 seem to me direct and positive, and there is no valid basis to interfere with the trial Court’s evaluation of evidence and findings which proceeded from the exclusive advantage it had to see the witnesses and observe their demeanour.

As it relates to the Appellant’s insistence that the prosecution did not establish any agreement amongst the Appellant and others to rob PW2 and PW3 of the tanker and its content, the circumstances of the entire transaction involving the Appellant and his co-defendant operating in the vanagon bus while armed with a Military Bayonet and dagger (being offensive weapons), accosting and whisking PW2 and PW3 away whilst the engine of the tanker was still running, only for the tanker to be recovered at a different location with some of its contents missing, constitute circumstantial evidence that point compellingly to a well-hatched conspiracy to commit the offence charged. As stated hereinbefore, conspiracy is rarely capable of direct proof and is almost always an inference drawn from the acts of the parties, acting in concert, which is geared towards the realisation of their common criminal purpose [see ODUNEYE v STATE supra, SULE v THE STATE supra, ADEJOBI v THE STATE supra, USUFU v THE STATE supra, KAZEEM v THE STATE [2009] 29 WRN 3, and PATRICK NJOVENS v THE STATE supra]; and I take the considered view that the lower Court rightly inferred conspiracy from the peculiar facts and surrounding circumstances after grappling first with the substantive offence as it was enjoined to do. See ERIM v STATE supra and ODUNEYE v STATE supra.

The role of an appellate Court is not that of a finicky faultfinder raking up non-existent defects in decisions of lower Courts with a view to upturning them. No. The trial Court is a peculiar adjudicator upon whose shoulder the heaviest burden of adjudication lies. See RAB OIL NIGERIA LIMITED & ANOR v MR SIKIRU OLUWAFEMI OBILEYE & ORS (2021) LPELR-53467(CA). Evaluation of evidence and ascription of probative value to it fall within the province of a trial Court, and an appellate Court will not lightly interfere unless for compelling reasons. The Prosecution employed all the three methods of evidential proof in establishing the Appellant’s guilt in the case that generated the instant appeal. The law confers unfettered discretion on a Court of trial to decide whether or not to visit the locus in quo or locus criminis, especially when there is no indication that the Appellant and his co-defendants made any application to that effect; even as the time lapse between 23/9/11 (when the incident occurred) and 26/2/14 (when trial began) clearly dispelled any necessity to visit the locus. I accordingly resolve all three issues for determination against the Appellant in favour of the Respondent.

The fate of this appeal is obvious. It is destitute of merit and ought to be dismissed. I so order. The Appellant’s conviction and sentence embodied in the judgment of the High Court of Lagos State delivered on 28/2/18 in Charge No. ID/43/13 is affirmed.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me, a copy of the judgment, in draft form, in which this appeal was dismissed. The issues distilled for resolution of this appeal have been comprehensively addressed by my learned brother, and I agree with the conclusions reached.

I see no merit in this appeal. It is also dismissed by me. I abide by the orders made in the lead judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I had the privilege of reading the draft of the judgment just rendered by my learned brother, PETER OYINKENIMIEMI AFFEN, JCA. I agree with the reasoning and conclusion therein that the appeal is devoid of merit and ought to be dismissed. It is hereby dismissed by me. I abide by the consequential order made.

Appearances:

M. M. Kugbe (Miss) For Appellant(s)

Adebayo Haroun, Esq. (Deputy Director, Ministry of Justice, Lagos State) For Respondent(s)