SUNDAY ADOGA v. THE STATE (2014)

SUNDAY ADOGA v. THE STATE

(2014)LCN/7043(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of March, 2014

CA/I/113/2011

JUSTICES:

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

SUNDAY ADOGA Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON

Now it is constitutionally enshrined in Section 36 (5) of the 1999 Constitution that every person who is charged with a criminal offence shall be presumed to be innocent until he is presumed guilty. This is a constitutional entrenchment of the principle of legality which recognizes the presumption of innocence in favour of a person accused of having committed a criminal offence. This presumption of innocence therefore places the burden of rebutting that presumption by proving his guilt. The burden therefore has been squarely placed at the doorsteps of the prosecution to proof that the accused committed the offence charged. This burden, except where the law places on the accused the burden of proof of particular facts, remains throughout the prosecution in a criminal trial on the prosecution and never shifts. See Section 131 (1) and (2), 132 and 136 of the Evidence Act, 2011. By Section 135 of the Evidence Act (supra) the prosecution has to discharge that burden beyond reasonable doubt. See also Almu v. State (2009) 10 NWLR (Pt. 1148) p.31; Ani v. State (2009) 16 NWLR (Pt. 1168) p.443; Shehu v. State (2010) 8 NWLR (Pt. 1195) p.112; Kingsley v. State (2010) 6 NWLR (Pt. 1191) p.593 and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p.170.
The law therefore is that, to discharge the burden of proof, the prosecution must lead cogent and credible evidence establishing every element or ingredient of the offence charged. Accordingly, where any of the essential ingredients of the offence has not been disclosed or established by the evidence, it will be fatal to the prosecution’s case, as that would mean that the charge against the accused has not been proved beyond reasonable doubt. PER TSAMMANI, J.C.A.

THE MEANING OF PROOF BEYOND REASONABLE DOUBT

Proof beyond reasonable doubt does not mean proof that is devoid of any shadow of doubt. Thus my Lord, Tobi, JSC in the case of Dibie v. State (2007) 9 NWLR (Pt. 1038) p.30 at 56-57 paras. H-A stated that:-
“Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on it by Section 138 (1) of the Evidence Act.”
In the same vein Fabiyi, JSC in the case of Eke v. State (2011) 3 NWLR (Pt. 1235) p.589 at 606-607 paras G-A stated that:
“Proof beyond reasonable doubt is not proof beyond all iota of doubt or proof to the hilt… I wish to once more observe that when all the essential ingredients of the offence charged have been satisfactorily proved by the prosecution, as in this matter, the charge is proved beyond reasonable doubt. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at Page 523.”
See also Chukwuma v. F.R.N. (2011) 13 NWLR (Pt. 1264) p. 391 at 408 paras. E-H per Muhammad, JSC; State v. Oladotun (2011) 10 NWLR (Pt. 1256) p.542, at 567 paras D-F per Mukhtar, JSC (as he then was) and Ochiba v. The State (2011) 17 NWLR (Pt. 1277) p. 663. The prosecution therefore has the bounden duty to call or adduce all relevant evidence as would establish all the essential ingredients of the offence beyond reasonable doubt. PER TSAMMANI, J.C.A.

INGREDIENTS OF THE OFFENCE OF ROBBERY

THE POSITION OF THE LAW ON CONTRADICTIONS IN THE TESTIMONY OF PROSECUTION WITNESSES

The law is that, for any contradictions or discrepancies in the testimony of the prosecution witnesses to destroy the credibility and thus, the evidential value of the testimony of such witnesses, they must be material contradictions. They must be material in the sense that they go to the root of the evidence on the point in issue and therefore fatal to the case of the party relying on it. A material contradiction is one which go to the material point in issue in the prosecution’s case, such that it creates doubt in the case of the prosecution, and could be resolved in favour of the accused persons. Thus, Iguh, JSC in the case of Akpabio v. State (1994) 7 NWLR (Pt. 359) p.635 stated that:
“It must be stressed that it is not in all cases where there are discrepancies or contradictions in the prosecution’s case that they are fatal to its case. It is only when the discrepancies or contradictions are on a material issue or issues in the prosecution’s case which create some doubt in the mind of the trial judge that the accused is entitled to benefit therefrom.” PER TSAMMANI, J.C.A.

WHETHER OR NOT IT IS ALL CONTRADICTIONS IN THE TESTIMONY OF A PROSECUTION WITNESS THAT IS FATAL TO ITS CASE

It is therefore settled law that, it is not all contradictions in the testimony of the prosecution witnesses that are fatal to its case. For such contradictions to render the testimony of prosecution witnesses unreliable, they must be substantial, material and fundamental and therefore go to the root of an ingredient of the offence charged. See Akpan v. The State (1991) 3 NWLR (Pt. 182) p.646; Sele v. The State (1993) 1 NWLR (Pt. 269) p.276; Buba v. State (1994) 7 NWLR (Pt. 355) p.195; Dagayya v. State (2006) 7 NWLR (Pt. 980) p. 637; Dibie v. State (2007) 9 NWLR (Pt. 1038) p. 30 at 50; State v. Azeez (2008) 14 NWLR (Pt. 1108) p.439. PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun state High Court of Justice, Ota Judicial Division delivered by Mobolaji A. Ojo, J on the 15th day of December, 2010. Before the trial court, the Appellant who was the 2nd accused was charged with one other with having committed the offences of conspiracy to commit armed robbery and for armed robbery which are offences punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004.

A summary of the prosecution’s case against the Appellant has been aptly captured at paragraphs 2.1-2.7 of the Respondent’s Brief of Arguments. For the sake of understanding of the issues in the case, I intend to reprise same here. The prosecution’s case against the Appellant therefore is that, on the 01/5/2008, the PW1 and PW2 were travelling along Sango-Idiroko road via Ota when they were accosted by the Appellant and two other persons, one of whom is at large. That at Idedo village, the Appellant and his co-conspirators flashed a police identity card at the PW1 and asked for the vehicle particulars which was obliged them by the PW1’s driver. Not satisfied, the Appellant and his partners asked the PW1 whether she was carrying any contraband and she answered in the negative. The Appellant and his partners then proceeded to search the vehicle and found the sum of three hundred and sixty-five thousand Naira (N365,000.00) in the vehicle which the PW1 wrapped in a polythene bag. According to the prosecution, one of the assailants then pulled out a pistol and ordered the PW1 and PW2 to lie down in the bus. The accused persons then threw the money in their Nissan Bluebird car and drove off.

It is also the prosecution’s case that, the PW2 summoned courage and decided to pursue the assailants. That their pursuit paid off with the help of some police officers at a check point, they caught up with the Appellant and his co-accused who had abandoned their car in order to find an alternative way of escape, as the village they run into turned out to be a cul-de-sac. That with the help of the Baale of the village and his people, the accused persons were arrested in a river while trying to escape. At the trial, the prosecution called three witnesses and tendered the statements of the accused persons as exhibits. The accused persons gave evidence but called no other witness. At the close of evidence, the parties filed written addresses which they adopted. In a considered judgment, the learned trial judge found the Appellant and his co-accused guilty of conspiracy and robbery simpliciter and accordingly sentenced them to various terms of imprisonment. It is against that judgment that the Appellant has appealed to this Court.

The original Notice of Appeal which was dated the 10th day of January, 2011 was filed the same day. It consisted of a lone ground of appeal. However, by motion on Notice dated the 19/4/12 and filed the 20/4/12, the Appellant was granted leave to file additional grounds of appeal. Consequently, the Appellant filed an Amended Notice of Appeal incorporating the additional grounds of appeal. The Amended Notice of Appeal consists of four grounds of appeal, which I hereby reproduce below:

Ground 1
The decision of the High Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.

Ground 2
The learned trial judge erred in law when he convicted the appellant for the offence of robbery.

PARTICULARS OF ERROR
(i) The evidence led by the prosecution is not sufficient to convict the accused of robbery.
(ii) The learned trial judge erred when he convicted the appellant of robbery when the conviction is against the weight of evidence.

Ground 3
The learned trial judge erred in law when he held that the prosecution has proved the two-count charge of conspiracy to commit robbery and robbery against the appellant beyond reasonable doubt.

PARTICULARS OF ERROR
(i) The use of force is an essential ingredient of a crime of robbery.
(ii) In the case at hand, the prosecution led inconsistent evidence that the robbers used force of arm and the learned trial judge rejected the evidence.
(iii) Since his lordship rejected the evidence that the appellant was armed, his Lordship ought not to have convicted the accused persons and particularly the appellant of the offence of robbery.
(iv) In view of all the above stated particulars, the conviction of the appellant is unjustifiable in law.

Ground 4
The learned trial judge erred in law when he convicted and sentenced the appellant to 14 years imprisonment for the offence of conspiracy to commit robbery.

PARTICULARS
(i) In the entire circumstances of this case, sentencing the appellant to a period of 14 years is unjustifiable and excessive.
(ii) The essence of punishment is not to destroy but to ensure a change of heart.

As required by the Rules of this Court, parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments was dated the 21/12/12 and filed the 27/12/12. Therein the Appellant distilled only one issue for determination as follows:

“Considering the totality of evidence adduced before the trial court by the prosecution, whether it could be said that the prosecution has proven the offence of conspiracy to commit robbery and the offence of robbery beyond reasonable doubt in line with Sections 1 (1) and 11 (1) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation, 2004.”

The Respondent also filed a brief of arguments dated the 01/12/2013 and filed the 4/11/2013. It was deemed filed the 15/1/2014 by order of this Court granted the 15/1/2014, vide motion on notice dated and filed 4/11/2013. Therein the Respondent like the Appellant also distilled a lone issue for determination as follows:

“Whether the prosecution has established the offence of conspiracy to commit robbery and the offence of robbery against the Appellant beyond reasonable doubt”.

Upon a sober and cursory reflection it is obvious that the issues raised or formulated by both parties are similar in scope and substance. I note however that, from the substance of arguments of counsel in their respective briefs of arguments, and indeed the sole issue(s) distilled by them, that no issue was formulated in respect of ground four (4) of the Notice of Appeal. I say so because, it appears to me that ground four is an appeal against the sentence of 14 years meted on the Appellant for the offence of conspiracy to commit robbery. As I stated earlier, no issue was formulated thereon, and throughout the entire gamut of the arguments in the respective briefs of arguments, nothing was said on the sentence of 14 years slammed on the Appellant for the offence of conspiracy. It is trite law, that any ground of appeal from which no issue is formulated is deemed abandoned, and is liable to be struck out. See Joel Okunriboye Co. Ltd & Ors v. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) p.518; Umanah v. Attah (2006) 17 NWLR (Pt. 1009) p. 503 at 536 and Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) p. 307. Accordingly, no issue having been formulated from Ground 4, is deemed abandoned. It is hereby struck out. (APPEAL, GROUND OF APPEAL, Whether any ground of appeal from which no issue is formulated will be deemed abandoned)

Now, in arguing the appeal, Mr. Musibau Adetunbi of learned counsel for the Appellant submitted that, the offence of robbery is defined in Section 11 of the Robbery and Firearms (Special Provisions) Act (supra). He then referred to the cases of Ebeinwe v. State (2011) All FWLR (Pt. 566) p.413 at 427 or (2011) 7 NWLR (Pt. 1246) p.402 at 420 and Otti v. State (1991) 8 NWLR (Pt. 207) p. 103 at 118, where robbery simpliciter was defined as consisting of the following elements:-

(i) That the accused stole something;
(ii) That the thing stolen is in law capable of being stolen;
(iii) That the accused threatened to use violence or actually used violence immediately before or after the time of stealing the thing.
(iv) The violence could be on either person or on a property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

Learned counsel for the Appellant then contended that, it is obvious from the record that, the prosecution alleged that the Appellant and his co-accused person stole the sum of N365,000.00 from the PW1. That it is equally obvious from the records that the Appellant and his co-accused were arrested on the same day but no money was retrieved from them. That the policemen who could swim, searched for the money in the river on the same day but could not recover any money. Learned counsel then referred to the testimony of PW1 at page 35 lines 10-12 and page 37 lines 8-10 of the record of appeal, to contend that, while PW1 stated during his testimony in chief that she kept the money in the glove compartment of the bus, she contradicted herself under cross-examination when she stated that she kept the money in the leg space in front of the bus under the carpet. Furthermore, that while PW1 said in her evidence in chief that the accused persons dropped the money in their car boot, she stated under cross-examination that she did not know where the accused persons kept the money.

It was also contended by learned counsel for the Appellant that, the PW2 further worsened the situation when he stated in his testimony at page 37 lines 30-31 that, “they discovered the money we were taking to the market”, he stated under cross-examination that, the accused persons searched the vehicle and found the money under the dash-board. That this testimony of the PW2 contradicted that of the PW1 as to where the money was kept.

Learned counsel for the Appellant went on to submit that, Exhibits A, A2, B and B2 are part of the prosecution’s case before the trial court. The cases of Kaza v. State (1994) 5 NWLR (Pt. 344) p. 269 at 286 paras E-H and Egboghonome v. State (1993) 7 NWLR (Pt. 306) p.383 at 434 para. B, were cited in support. He then referred to lines 25-33 of Exhibit B2 at page 13 of the record of appeal and lines 5-11 of Exhibit B at page 18 of the records, to submit that the trend of the oral testimony of PW3 is similar to Exhibit B2 but in conflict with Exhibit B. That while the statement of PW3 and Exhibit B2 show that the Appellant was arrested in a river where he dropped the sum of N365,000.00, the same PW3 testified via Exhibit B that the Appellant was arrested in the bush. He contended that such contradiction is germane to the resolution of the issue of where the alleged N365,000:00 was kept. Learned counsel also relied on the case of Onyemelukwe v. W.A.C.C. (1995) 4 NWLR (Pt. 387) p. 44 at 55, to further submit that, where the testimony of a witness is diametrical with the document sought to be relied upon, such testimony would carry no evidential weight as the court cannot pick and choose from the conflicting testimony of a witness, and such witness cannot by oral testimony contradict the content of documentary evidence. It was accordingly submitted that the testimony of the prosecution as contained in Exhibit B2 has demystified the prosecution’s testimony that the sum of money stolen was dropped in the river, and thus created a doubt as to whether the sum of N365,000.00, was stolen by the Appellant.

Learned counsel for the Appellant also questioned the credibility of the place of arrest of the Appellant. He relied on the cases of Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) p. 617 at 654 and Ajose v. F.R.N. (2011) 6 NWLR (Pt. 1244) p.465 at 476 and lines 31-33 of Exhibit A2 at page 9 of the record of appeal, lines 3-6 of Exhibit A at page 15 of the record of appeal, lines 21-25 of Exhibit A2 at page 9 of the records and lines 20-24 of Exhibit B at page 12 of the records, to contend that the statements thereon, show contradictions in the evidence of the prosecution and therefore created doubt on the prosecution’s case. That those contradictions that bedevil Exhibits A, A2, B and B2 have created serious doubt about the confessionality of those statements which cannot be brushed aside. While admitting that the appropriate time to attack a confessional statement is at the point of tendering, he contended that he was only inviting us to re-evaluate the totality of the evidence of the prosecution at the trial court, as the trial court failed to properly evaluate.

Learned counsel for the Appellant relying further on the case of Onubogu v. The State (1974) 9 N.S.C.C. p.358 at 366, contended that the trial court failed to address the want of unanimity that exists between the testimonies of PW1 and PW2 as to where the money was kept and where the Appellant was arrested, which has effect on whether or not the sum of N365,000.00 was in fact stolen from the PW1 by the Appellant and his co-accused. He cited the case of Akawa v. State (2011) All FWLR (Pt. 597) at 663-664 paras H-A per Agube JCA to concede that, it is well settled position of the law that not every discrepancy, contradiction or inconsistency in evidence of the prosecution witnesses will affect the credibility of the witness. He however relied on the case of Sowemimo v. State (2004) 11 NWLR (Pt. 885) p. 515 at 532 submit that the testimony of PW1 is self-contradictory and should not have been relied upon by the learned trial Judge.

Learned counsel for the Appellant contended that, if we agree with him that the testimony of PW1 should be discountenanced, the question which should be answered is whether the evidence of PW2 and PW3 will sustain proof of whether the Appellant stole anything. He urged us to answer the poser in the negative because, an appraisal of the testimonies of PW1 and PW3 would show that, none of them testified on the amount which PW1 was dispossessed of and therefore created uncertainty as to whether or not any money was stolen. He contended that, the worse scenario is that, none of PW1 and PW2 gave any evidence to show whom, among their assailants collected the N365,000.00 from PW1. That the PW1 and PW2 consistently referred to the persons who disposed PW1 of the money as “they”, and thus created ambiguity as to who amongst their assailants collected the money.

Lastly on the issue of whether the prosecution proved beyond reasonable doubt that the Appellant stole the sum of N365,000.00 from the PW1, it was contended by learned counsel for the Appellant that, the prosecution was ordered by the learned trial Judge to produce the statement the PW1 made to the police immediately she reported the robbery incident, but throughout the trial, the prosecution failed to produce same. That the importance of such statement made by PW1 cannot be underestimated, as it would at least contain the amount collected from her, if any, and the identity of the collector. Learned counsel therefore submitted that, failure of the prosecution to produce such a statement only show that, if the statement is produced, it would reveal that no amount of money as stated was stolen from the PW1. The cases of Ogudo v. State (2011) 18 NWLR (Pt. 1278) p.1 at 33; Aku Nmecha Transport Nig. Ltd (ANTN) & Anor v. S. D. Atoloye (1993) 6 NWLR (Pt. 298) p. 233 at 258 paras. E-F were cited in urging us to hold that, non-production of the statement PW1 made to the police has created doubt on whether the Appellant stole any money from the PW1.

In response, learned counsel for Respondent contended that in all criminal trials, if the essential ingredients of the offence have been proved beyond reasonable doubt, the change is proved beyond reasonable doubt. Like the Appellant, he listed the essential elements of robbery as stated in the case of Otti v. The State (1991) 8 NWLR (Pt. 207) p.103 at 118, and to submit that, the evidence of PW1 and PW2 stated that the sum of N365,000.00 in a polythene bag was robbed from them. That such evidence remained unchallenged as those witnesses were not shaken under cross-examination on that point. That Exhibit B, the confessional statement of the Appellant was admitted without objection wherein the Appellant narrated that the robbery was executed and that such confession was corroborated by the co-accused in this confessional statement admitted as Exhibit A without objection. That those confessional statements were consistent, freely made and in harmony with each other, and thus the trial court could convict them on it. The cases of: Alarape v. The State (2001) FWLR (Pt. 41) p. 1873 and Nwaebonyi v. State (1994) 5 NWLR (Pt. 342) 138 at 150 were cited in support.

It is also the submission of learned counsel for the Appellant that, the trial court found the confessional statements of the Appellants as good and sufficient corroboration of the testimonies of PW1 and PW2. That the confession of the Appellant is consistent with the facts of this case and fully satisfied the test required by law. Learned counsel referred to the dictum of Denning, J (as he then was) in Miller v. Minister of Pensions (1947) 3 All E.R. p.37 and Moses Jua v. State (2010) 43 W.R.N. p.1 at 24-25 to submit that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt or proof to the hilt. See also Ugo v. C.O.P. (1972) 11 S.C. p.37 and Ameh v. State (1978) 6-7 S.C. p.27. It was accordingly contended that if there is discrepancy in the testimony of PW1 and PW2 as to where the money was kept before it was taken by the robbers; such discrepancy is minor and not material.

On the use of the word “they” by the PW1 and PW2, learned counsel for the Respondent submitted that, considering the circumstances of this case, the word “they” used by PW1 and PW2 could only mean the Appellant, the co-accused and the other accused now at large. That the identity of the robbers was never in doubt at the trial.

On the Appellant’s contention that there is contradiction as to whether the Appellant was arrested in a river or a bush, learned counsel for Respondent submitted that it is only a minor discrepancy. Furthermore, that the evidence on the role played by the Appellant and one Lanre who is at large is not material.

On the issue of withholding evidence raised by the Appellant, it is the submission of learned counsel for the Respondent that, he has read the record and could not find where the court observed or mentioned that the order was not complied with.

The burden therefore has been squarely placed at the doorsteps of the prosecution to proof that the accused committed the offence charged. This burden, except where the law places on the accused the burden of proof of particular facts, remains throughout the prosecution in a criminal trial on the prosecution and never shifts. See Section 131 (1) and (2), 132 and 136 of the Evidence Act, 2011. By Section 135 of the Evidence Act (supra) the prosecution has to discharge that burden beyond reasonable doubt. See also Almu v. State (2009) 10 NWLR (Pt. 1148) p.31; Ani v. State (2009) 16 NWLR (Pt. 1168) p.443; Shehu v. State (2010) 8 NWLR (Pt. 1195) p.112; Kingsley v. State (2010) 6 NWLR (Pt. 1191) p.593 and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p.170.
The law therefore is that, to discharge the burden of proof, the prosecution must lead cogent and credible evidence establishing every element or ingredient of the offence charged. Accordingly, where any of the essential ingredients of the offence has not been disclosed or established by the evidence, it will be fatal to the prosecution’s case, as that would mean that the charge against the accused has not been proved beyond reasonable doubt.

Proof beyond reasonable doubt does not mean proof that is devoid of any shadow of doubt. Thus my Lord, Tobi, JSC in the case of Dibie v. State (2007) 9 NWLR (Pt. 1038) p.30 at 56-57 paras. H-A stated that:-
“Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on it by Section 138 (1) of the Evidence Act.”
In the same vein Fabiyi, JSC in the case of Eke v. State (2011) 3 NWLR (Pt. 1235) p.589 at 606-607 paras G-A stated that:
“Proof beyond reasonable doubt is not proof beyond all iota of doubt or proof to the hilt… I wish to once more observe that when all the essential ingredients of the offence charged have been satisfactorily proved by the prosecution, as in this matter, the charge is proved beyond reasonable doubt. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at Page 523.”
See also Chukwuma v. F.R.N. (2011) 13 NWLR (Pt. 1264) p. 391 at 408 paras. E-H per Muhammad, JSC; State v. Oladotun (2011) 10 NWLR (Pt. 1256) p.542, at 567 paras D-F per Mukhtar, JSC (as he then was) and Ochiba v. The State (2011) 17 NWLR (Pt. 1277) p. 663. The prosecution therefore has the bounden duty to call or adduce all relevant evidence as would establish all the essential ingredients of the offence beyond reasonable doubt.

In the instant case, the Appellant was tried and convicted for the offences of conspiracy to commit robbery and robbery respectively. The offence of robbery is defined under Section 15 of the Robbery and Firearms Special Provisions Act (supra) as:-
“Stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or restrained.”

As rightly stated by both learned counsel in this case, for the prosecution to succeed in proving the case of robbery against the Appellant, the evidence adduced before the trial court and as depicted on the record of appeal must show that:-
(a) The accused took away something from another permanently;
(b) That he did so with the intent of permanently depriving that person of title to the thing stolen;
(c) That he did so by the use of threat to use force or by the actual use of violence with a view to retain or prevent, or overcome any resistance to the taking of or retention of the thing so taken.
Accordingly, when all the above stated ingredients of the offence of robbery have been established, it would be said that a charge of robbery has been committed. Thus, failure to establish any of the above stated ingredients would mean that a doubt has been created in the prosecution’s case and the accused would be entitled to an acquittal. See also Awosika v. State (2010) 9 NWLR (Pt. 1198) p.49 at 72; Rabiu v. State (2010) 10 NWLR (Pt. 1201) p.127.

It is obvious therefore that an essential ingredient of the offence of robbery is that the assailant stole or took away something from the owner or victim. In other words, stealing is an essential ingredient of the offence of robbery. The difference is that the accused person must have stolen the thing or dispossessed the owner of the thing capable of being stolen under threat of violence or the actual use of violence. It has been the contention of the Appellant that, the prosecution failed to proof the fact of stealing because, the testimony of the prosecution witness thereon was contradictory and inconsistent and therefore unreliable.

The law is that, for any contradictions or discrepancies in the testimony of the prosecution witnesses to destroy the credibility and thus, the evidential value of the testimony of such witnesses, they must be material contradictions. They must be material in the sense that they go to the root of the evidence on the point in issue and therefore fatal to the case of the party relying on it. A material contradiction is one which go to the material point in issue in the prosecution’s case, such that it creates doubt in the case of the prosecution, and could be resolved in favour of the accused persons. Thus, Iguh, JSC in the case of Akpabio v. State (1994) 7 NWLR (Pt. 359) p.635 stated that:
“It must be stressed that it is not in all cases where there are discrepancies or contradictions in the prosecution’s case that they are fatal to its case. It is only when the discrepancies or contradictions are on a material issue or issues in the prosecution’s case which create some doubt in the mind of the trial judge that the accused is entitled to benefit therefrom.”
In similar words, Onnoghen, JSC put it clearer in the case of Igabele v. State (2006) 6 NWLR (Pt. 975) p.100 at 132 paras. B-D in the following words:
“It is trite law that for contradiction in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. It is not every inaccuracy in the testimonies of witnesses that will render such testimonies unreliable. I therefore find no material contradictions in the evidence of the witnesses which would have rendered the evidence unreliable.”
It is therefore settled law that, it is not all contradictions in the testimony of the prosecution witnesses that are fatal to its case. For such contradictions to render the testimony of prosecution witnesses unreliable, they must be substantial, material and fundamental and therefore go to the root of an ingredient of the offence charged. See Akpan v. The State (1991) 3 NWLR (Pt. 182) p.646; Sele v. The State (1993) 1 NWLR (Pt. 269) p.276; Buba v. State (1994) 7 NWLR (Pt. 355) p.195; Dagayya v. State (2006) 7 NWLR (Pt. 980) p. 637; Dibie v. State (2007) 9 NWLR (Pt. 1038) p. 30 at 50; State v. Azeez (2008) 14 NWLR (Pt. 1108) p.439.

Where an Appellant complains of contradictions in the evidence of prosecution witnesses, it is not sufficient for him to show the existence of those contradictions. He must proceed to show that the contradictions amount to substantial disparagement of the testimony of the witnesses, and that it would be dangerous or likely lead to a miscarriage of justice if his conviction is allowed to stand on the evidence of such witnesses. See Ogbu v. State (2007) 5 NWLR (Pt. 1028) p.635 and Udosen v. State (2-7) 4 NWLR (Pt. 1023) p.125 at 161 paras. G-H.

In the instant case, the contradictions complained about by the Appellant relate to where the money stolen was kept before it was stolen and the place of arrest of the Appellant. It also relates to who among the Appellant and his co-accused wielded the pistol or flashed the police identity card. The material issues in the proof of the case against the Appellant is whether the accused persons, among whom was the Appellant stole from or dispossessed the PW1 of the sum of N356,000.00. The evidence led by the prosecution showed clearly that the PW1 had some money, in the sum of N365,000.00 in her bus and that the Appellant and his co-travellers disposed her of it. It is therefore not material to the proof of the fact of stealing of the money to prove beyond reasonable doubt where the money was kept in the bus. The moment the evidence adduced established that the money was in possession of PW1 (in her bus) when she was dispossessed of it will suffice. In any case, the Appellant himself admitted in his statements to the police that indeed, himself and his co-accused searched the bus and collected the money they found in it. He stated in Exhibit B2 that:-

“We searched the bus and found the money parked. Lanre collected the money and handed it over to me.”

This piece of evidence was corroborated by the statement of his co-accused also made to the police. The Appellant and his co-accused therefore admitted “collecting” or stealing money from the PW1. I therefore hold that, where such money was kept in the vehicle before it was stolen is not a material element or ingredient to a proof of the offence of robbery. Thus any contradiction, discrepancy or inconsistency in the testimony of PW1 and PW2 as to where the money was kept is not a material contradiction. It does not materially or substantially truck on the element of stealing in prove of the offence of robbery.

I also find that the place of arrest of the Appellant is not a material issue in proof of the case of robbery he was convicted of. The fact that he was arrested in connection to the robbery inflicted on the PW1 and PW2 on the 1st day of May, 2008 is not in dispute. The identity of the Appellant as one of the robbers that robbed the PW1 and PW2 was never an issue at the trial. Indeed the Appellant was pursued and arrested some few hours after the act of robbery. The Appellant himself, in his statements to the police admitted as Exhibits B and B2 never denied being arrested in connection with the robbery on the PW1 and PW2 on the 01/5/2008. The complaint of the Appellant is that there is a contradiction between the testimonies of the PW1 and PW2 with the statements of the Appellant admitted as B. He premised his argument on the fact that in law, the statement of an accused person made to the police is part of the evidence for the prosecution. While that may be true, the interpretation given to that legal proposition is misconceived. It is my view that the inconsistency test does not apply between the extra-judicial statement of an accused person and the testimony of other prosecution witnesses. It only applies between the extra-judicial statement of an accused person and his testimony in court. It is therefore erroneous to contend that the testimony of a witness should be discredited merely because it conflicts with the extra-judicial statement of an accused person. In fact it has never been the law that the testimony of the prosecution witnesses will be in unison with the statements of an accused person. The fact that the statement of the accused is part of the prosecution’s case does not mean it must be accord with the testimony of the prosecution witness.

It is therefore my view that there is no contradiction on the testimony of the prosecution witnesses as respects the place the Appellant was arrested. The PW1 stated that when they were pursuing the accused persons, it got to a point that she got tired, so she could not continue in the pursuit. That the Appellant was also brought to the place she was resting and she immediately identified him. The PW2 stated that the Appellant was arrested inside a river. The PW3 never testified that he was one of the police officers that arrested the Appellant. He only came into contact with the Appellant when the matter was transferred from Agbara Police Station to the State C.I.D, Eleweran, Abeokuta. It is also utterly erroneous and a gross-misconception to contend, as done by learned counsel for the Appellant that the extra-judicial statements of the Appellant tendered by the PW3, who was the Investigating Police Officer (I.P.O.), are to be taken as the evidence of the PW3. They remained the statements of the Appellant for all purposes of the trial. In any case, the evidence adduced at the trial revealed that the Appellant was pursued and arrested some few hours after the robbery attack on PW1 and PW2, and the PW1 identified him to the police immediately after such arrest. It is therefore of no moment that he was arrested in the bush or in the river.

Learned counsel for the Appellant had also contended that the use of the word “they” by the PW1 and PW2 has left the identity of the robbers that attacked the PW1 and PW2 in doubt. I think this contention of the appellant is not only incredible but ridiculous. Considering the circumstances of the case, the word “they”, while referring to the robbers could only mean reference to the Appellant and his co-accused.

One other issue raised by the Appellant is that, the prosecution was ordered to produce the statement the PW1 made to the police, but they failed to do so. It is not the law that the prosecution must tender the statement made by a witness who is called to testify in the proceedings. If the defence seeks to use that statement (which will be for cross-examination only), it behoves on learned counsel to formally request for the production of the statement by the prosecution. See Ndidi v. State (2005) 17 NWLR (Pt. 953) p.17. In the instant case, it is clear from the record that, in the course of cross-examining the PW1, learned counsel for the defence applied that the prosecution produce the statement of PW1 made to the police. The trial court made the order on the prosecution to so produce. After the order, the defence continued with and concluded the cross-examination of the PW1. The record does not show that the defence stood-down the cross-examination of the PW1 so that the prosecution produce her extra-judicial statement. Rather, learned counsel continued and concluded the cross-examination of PW1, and there is no record that the defence ever raised the issue again throughout the trial. I am therefore of the view that, if the defence found the extra-judicial statement of the PW1 crucial to their defence, they should have insisted on its being produced. They never did, and so cannot use that scenario to score a cheap point against the prosecution. I accordingly hold that the argument of the Appellant on the point is of no moment, as it has no effect on the credibility of the testimony of the PW1. Accordingly Section 167(d) of the Evidence Act, 2011 is inapplicable in the circumstances of this case. See also Omonga v. State 14 NWLR (Pt.1000) p.532 and Ogundo v. State (2011) 18 NWLR (Pt.1278) p.1.

From all the issues resolved above, it is obvious that there was no contradiction or discrepancy in the testimony of the prosecution witnesses in this case. Any such contradiction or discrepancy which have been highlighted by the Appellant are not material or substantial or fundamental to the issues under consideration, as to create doubt in the prosecution’s case. The evidence adduced by the prosecution showed unequivocally and without any doubt that the Appellant along with others dispossessed the PW1 of the sum of N365,000.00 on the 01/5/2008 along Owode-Sango road in Ogun State. The evidence also establishes without doubt that the Appellant was chased and arrested a few hours after the incident. I therefore hold that stealing which is the first ingredient to be proved in a charge of murder has been established beyond reasonable doubt.

This now brings us to the second ingredient, which is, whether the accused threatened to use violence or actually used violence immediately before or immediately after the time of stealing the thing. Learned Counsel for the appellant referred to the testimony of the PW1 and PW2 at pages 35 lines 6 and 38 lines 1-2 of the record of appeal to submit that the relationship between the testimony of the two witnesses is akin to that of cat and mouse and therefore completely at variance on the issue of whether the Appellant and his co-travellers threatened to use or used actual violence on the PW1 and PW2. That happily, the learned trial judge had disregarded that conflicting evidence of PW1 and PW2 and therefore the evidence relating to the use of a pistol has been discarded. Learned Counsel however submitted that, the findings of the trial court that the accused persons ordered the PW1 and her people to lie down in their car in the course of the operation on the pain of severe danger to their person for any act of defiance is not supported by the evidence on the record, but predicated on the imagination of the trial court.

It was further contended by learned counsel for the appellant that, since the learned trial judge discarded the evidence on the use of pistol and as there is no other evidence of any offensive weapon or the use of force against the PW1 and PW2, the findings of the trial court that PW1 and PW2 were in severe danger to their persons for any act of defiance has no leg to stand on. The cases of Bright v. State (2012) 1-2 M.J.S.C. (Pt. 35) at 65; Ogba v. The State (1992) 2 NWLR (Pt. 222) p.164 and Ogbu v. The State (1992) 8 NWLR (Pt. 259) p.255, to submit that the finding of the trial court which is not supported by the evidence led at the trial, resulted in a miscarriage of justice to the Appellant. That this finding of the learned trial judge was based on improper evaluation of the evidence led before him. He relied on the case of Ibeh v. State (1997) 1 NWLR (Pt. 484) p.632 at 655 and Ebba v. Ogodo & Anor (1984) NSCC p.255 at 259 lines 8 – 38 to submit that this court is in a good position, like the trial court to re-evaluate the prosecution’s evidence.

Learned Counsel for the appellant also referred to the cases of Ebeinwe v. State (supra) and The State v. Olanrewaju (1982) I.N.C.R. p.289 at 293 to submit that the word force or violence denotes the exercise of any physical power against the victim of the robbery. That considering the facts of this case, there is nowhere on the printed record is it shown that the victims of the robbery testified of the use of physical force on their person or property. He contended that, a reasonable man would not be scared by mere flashing of identity card to the extent that he would comply with an order to lie down in a bus without the use of physical weapon or molestation. The cases of Ebeinwe v. State (supra) and Babalola v. State (1970-71) NSCQR p.163 at 172 paragraphs D – E was cited to submit that the prosecution failed woefully to establish threat or violence.

It is also the contention of learned counsel for the appellant that Exhibit B2 was wrongly admitted by virtue of Section 49(9) of the Evidence Act, 2011. That even if it was, properly admitted, the trial court ought not to have attached any evidential value to it, as same would amount to documentary hearsay. The cases of Osuoha v. State (2010) 6 NWLR (Pt.1219) p.364 at 401 and Okeke v. Obidife (1965) NWLR p.114 were cited in support. We were accordingly urged to hold that the element of threat to use or the actual use of violence was not proved beyond reasonable doubt.

In response, learned counsel for the Respondent contended that, there is unchallenged evidence that the robbers used force during the robbery operation, and that as a result of the threat of use of force, they ordered the victims to lie down and the victims complied. That even where none of the victims wielded a gun, mere ordering the victims to lie down was enough threat as envisaged by Section 15(1) of the robbery and firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990.

It was further submitted by learned counsel for the Respondent that, Exhibit B which is a confessional statement made by the appellant was admitted in evidence without objection. That, therein the Appellant narrated how himself and his co-accused persons executed the robbery. That on their part, the prosecution witnesses, especially the PW1 and PW2, who were victims of the robbery gave vivid account during the trial of how the robbery was executed. Learned Counsel then submitted that, Exhibit B2 was properly admitted, because proper foundation was laid by the PW3 as to the whereabouts of the police officer that obtained same and that the statements were in his custody as the Investigating Police Officer (I.P.O) at the State C.I.D, Abeokuta.

I now begin a resolution of this issue on the contention of the Appellant on the admissibility of Exhibit B2. The record shows that Exhibit B2 was not recorded by the PW3 who tendered it, but by one Sergeant Njoku who was said to have been posted outside the shores of Nigeria, on a foreign mission. In the case of Awosika v. State (2010) 9 NWLR (Pt. 1198) p.49, the Appellant therein, had faulted the confessional statement therein on the ground that the police officer who endorsed the statement was not called to tender the said statement and to testify on same. It was held per Alagoa, JCA (as he then was) that one police officer, other than the recorder of the statement can properly tender documents that forms the official records of another police officer made in the course of his employment. See also the case of John v. State (2011) 8 NWLR (Pt. 1278) p.353 at 368 paragraphs C – H. In the instant case, the PW3 stated at page 41 lines 1 – 4 that Sergeant Njoku who recorded the statement was on a foreign mission. He went on to state that:

“The case file transferred to Eleweran included extract from crime Diary, police Investigation Report, Minutes Sheets, statements of the complainant and her witnesses, statements of the accused persons. The case file is the original. Now shown to me are the statement of the accused persons at the Divisional level as contained in the case filed.”

With the above statement of the PW3, the learned trial judge admitted the statement of the Appellant as recorded by Sergeant Njoku and marked same as Exhibit B2. The learned trial judge rightly reasoned that:

“The witness has told the court the whereabouts of the I.P.O. who obtained the statements sought to be tendered. He also testified as to how he came to be in possession of same. The statements are relevant and are therefore admissible.”

On the state of the law as earlier stated, I am of the view that the learned trial judge rightly admitted Exhibit B2. He was therefore right to have accorded it probative value.

Now, the Appellant had raised the point that, the use of actual violence which is one of the essential elements or ingredients of robbery has not been established by the evidence on record. To resolve the issue, I propose to recapitulate even at the pain of repetition the provision of Section 15 of the Robbery and Firearms (Special provisions) Act (Cap. R.11), Laws of the Federation of Nigeria, 2004. That provision defines “robbery” as:
“Stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or restrained.” (underlined for emphasis)

It would be seen therefore that, for the offence of robbery to be committed, it is not necessary that the violence should have been carried out. It will, in my view, suffice if the assailant threatened to use violence, provided that the threat was such that it created fear in the mind of the victim that, if he does not comply, violence will actually be applied or visited on him. It is not necessary that the threat was with the use of firearms or other offensive weapon, but any threatening gesture or words which convey such threat will suffice. This is so because, where any firearm or other offensive weapon is used to compel compliance, the offence committed would be armed robbery and not robbery simpliciter. See Otti v. State (1991) 8 NWLR (Pt. 207) p.103 at 118; Nwomukoro v. The State (1995) 1 NWLR (pt.372) p.432 at 443 and Ajiloye v. State (1983) 6 S.C. p.1.

In the instant case, the evidence given by the PW1 and PW2 showed that the accused persons, including the Appellant threatened them with violence. That they were ordered to lie down under pain of physical harm, should they resist or refuse to comply with the order. The PW1 stated at page 35 lines 7-9 that:-

“While they were searching the bus, we had alighted. At that point they ordered us back into the bus and ordered us to lie down. They took the money and dropped it in their car boot and drove off.”

The PW2 on his part stated at page 37 of the record of appeal that:-

“As soon as we had parked, two out of the three occupants of the car came out and asked if we had any contraband in our vehicle and I said none. They started to search our vehicle after describing themselves as policemen. Some people stopped to ask if there was any problem and I said no. As soon as the road was free they pulled out a gun and said they were armed robbers. They asked us to make a choice between our lives and our money. They discovered the money we were taking to the market. They asked us to lie down in our vehicle, took the money to their vehicle and drove off.”

From the evidence on record, both the PW1 and PW2 stated that the robbers wielded a pistol which they threatened them with. However, the learned trial judge rejected that piece of evidence on the ground that there was conflict between the testimony of PW1 and PW2 as to who among the robbers wielded the pistol. This finding of the trial judge is strange to me considering that the Appellant and his co-accused were charged with conspiracy to commit the offence, and there is uncontroverted evidence that one of the robbers escaped. There is however no appeal against that finding of the learned trial judge. I will therefore say no more on that. I only wish to state that the evidence on record shows clearly that the Appellant and his co-travelers threatened the PW1 and PW2 with violence before dispossessing the PW1 of the sum of N365,000.00. On the whole therefore I am of the view that the learned trial judge was right when he found that the offence of robbery has been established beyond reasonable doubt. I agree with that finding and accordingly affirm the conviction of the Appellant for the offence of robbery.

The next issue to consider in this appeal is whether the trial court rightly convicted the Appellant for the offence of conspiracy to commit robbery. In arguing here, learned counsel for the appellant stated the elements to be proved before a charge of conspiracy to commit robbery can be said to have been proved beyond reasonable doubt are as laid down in the case of Usufu v. State (2008) All FWLR (Pt. 405) p.1731 at 1748 paragraphs B – D. That it is clear that, in order to prove conspiracy, there must be an agreement or confederacy to commit the offence of robbery and that the accused person took part in the commission of the offence of robbery. Learned Counsel then submitted that, if the essential ingredients of robbery have not been proved, it would mean that the offence of conspiracy to commit robbery has not been proved. That it is so because, the offence of robbery must first be established before conspiracy to commit the offence can be said to have been proved. The cases of Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) p.256 at 274; Usufu v. State (supra) at p.1758 and Njovens v. State (1973) 5 S.C. p.17 at 68 were cited in support.

Learned Counsel for the Appellant thus contended that the Appellant was convicted for the offence of conspiracy to commit robbery and robbery. That the circumstances of this appeal is similar to that in Nnaji & 7 Ors v. I.G.P. (1957) N.S.C.C. p.43 where it was held that when the accused person is discharged on the specific offence with which the charge of conspiracy shared the same umbilical cord, the accused person will be discharged on the charge of conspiracy on the same offence. The cases of The Queen v. Okagbue & Ors. (1958) N.S.C.C. p.77, The Queen v. Aniemekwe & Anor (1961) N.S.C.C. p.48, Amade v. State (1993) 8 NWLR (Pt. 314) p.644 at 674 paragraphs E-F and others were further cited in support. The case of Aituma v. State (2006) 10 NWLR (Pt. 989) p.452 at 471 – 472 was further cited to submit that, the offence of conspiracy having been embedded in the substantive offence, failure to establish the substantive offence should lead to an acquittal of the Appellant on the charge of conspiracy. We were accordingly urged to hold that the charge of conspiracy has not been proved.

Learned Counsel for the Respondent referred to the cases of Kaza v. The State (2008) 5 S.C.M. p.70 at 104 and Upahar v. The State (2003) 6 NWLR (Pt. 816) p.230 at 239 to submit that it is difficult to get direct evidence in support of conspiracy, and that conspiracy is usually inferred from the facts and circumstances of each case. Learned Counsel further referred to the testimony of PW1 and PW2 at pages 34 – 39 of the record of appeal, and Exhibit B which is the confessional statement of the Appellant at the State C.I.D which learned counsel contends corroborates that of the prosecution witnesses. That in the said Exhibit B, the Appellant stated how the conspiracy was planned and carried out. Learned Counsel therefore submitted that the acts of the Appellant and his co-conspirators as stated in Exhibit B and the testimonies of the PW1 and PW2 are sufficient to infer conspiracy. That the Appellant did not object when Exhibit B was tendered and that the statement of his co-accused which was admitted as Exhibit A corroborated that of the Appellant. Learned Counsel accordingly submitted that this court can infer from the acts of the Appellant as testified to by PW1 and PW2, and the confessional statements admitted as Exhibits A and B that the charge of conspiracy to commit robbery has been proved. We were therefore urged on the authority of F.R.N. v. Mamman (2013) 4 S.C.M. 107 at 114 not to disturb the findings that the charge of conspiracy was proved.

The Appellant and one Michael Oloye were charged for conspiracy to commit a felony, to wit; robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. Section 6(b) of the Robbery and Firearms Act (supra) states that:

“6. Any person who –
(a)…………………. or
(b) Conspires with any person to commit such an offence;or
(c)……………….
whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”

It is obvious that the Robbery and Firearms Act (supra) specifically legislates against conspiracy to commit an offence under the Act, but does not define what conspiracy is. In their effort to find a suitable and acceptable definition of the term “conspiracy” under the Robbery and Firearms Act, the courts in this country, have resorted to judicial pronouncements on the issue. What appears to be the acceptable definition in this country is that, conspiracy arises when two or more persons agree or enter into a confederacy to do an unlawful thing or a lawful thing by unlawful means. Accordingly to prove conspiracy, the prosecution must lead concrete, cogent and acceptable evidence which satisfies the court beyond reasonable doubt that:
(a) There was an agreement between two or more persons to do or cause to be done some illegal or unlawful acts or some acts which are not by themselves illegal or unlawful, by some illegal or unlawful means;
(c) The accused person was one of the conspirators or participated in the conspiracy.

That being so, in a situation such as this where the accused is charged with conspiracy to commit robbery, the prosecution must establish the following elements beyond reasonable doubt:-
(a) That there was an agreement between the convict, Appellant in this case, and others to commit the offence of robbery;
(b) That in furtherance of the agreement, the Appellant participated in the execution of the conspiracy.
The prosecution must therefore read credible and acceptable evidence which proof both elements of the offence beyond reasonable doubt. See Garba v. C.O.P. (2007) 15 NWLR (Pt.1060) p.378; Usufu v. State (2007) 1 NWLR (Pt. 1020) p. 94.

It has long been recognized by our courts that the offence of conspiracy is in most cases hatched in utmost secrecy. The law therefore recognizes that the offence being shrouded in secrecy is not always easy to get direct and distinct evidence of the conspiracy. In that respect, the proof of conspiracy becomes a matter of inference to be drawn from the acts committed by the conspirators towards the commission of the offence for which the conspiracy was formed. In other words, conspiracy is usually predicated on and deciphered from circumstantial evidence which leads to irresistible and compelling inference that the convict was entangled in the web of conspiracy. The offence of conspiracy is therefore proved by inference to be deduced from certain criminal acts of the conspirators. See Posu v. State (2011) 2 NWLR (Pt. 1234) p.393; Adejobi v. State (2011) 12 NWLR (Pt. 1261) P.347; Tanko v. State (2008) 17 NWLR (Pt. 1114) p.97; Ojo v. F.R.N. (2008) 11 NWLR (Pt. 1099) p.467 and Abdullahi v. State (2008) 17 NWLR (Pt. 1115) p.203; Aje v. State (2006) 8 NWLR (Pt. 982) p.452 and Omotola v. State (2009) 7 NWLR (Pt. 1139) p.148.

It does not however mean that the gist of the offence of conspiracy lies in the doing of the act or the purpose for which the conspiracy was formed. It is predicated purely in the formation of the scheme or agreement between the parties. See Kaza v. State (2008) 7 NWLR (Pt.1085) p.125 and Yakubu v. F.R.N. (2009) 14 NWLR (Pt. 1160) p.151. It therefore means that, the actual commission of the offence is not a necessary ingredient of the offence of conspiracy. The conspiracy to commit an offence is a separate and distinct offence and is independent of the commission of the substantive offence for which the conspiracy was hatched. In other words, where there is an allegation of conspiracy to commit an offence, the commission of the actual or substantive offence is not necessary before the charge of conspiracy can be said to have been proved. This is because, conspiracy to commit an offence and the commission of the substantive offence in pursuance of the conspiracy are two separate and distinct offences. Thus, the accused person may be found guilty of conspiracy even where the commission of the substantive offence is not proved. In the same vein, a discharge on a court of conspiracy would not automatically translate to a discharge on a court alleging the commission of the substantive offence.

From the above analysis, the offence of conspiracy to commit robbery and the substantive offence of robbery are distinct and separate offences. This is so because the offence of conspiracy to commit robbery may be fully manifested in the acts of the conspirators before the actual offence of robbery is executed. Even where the offence of robbery is not executed, the accused persons may yet be convicted of conspiracy to commit same if their acts manifested an intention towards the commission of robbery. The offence of conspiracy may therefore be fully proved even though the substantive offence may have been aborted or abandoned. See Sule v. State (2009) 17 NWLR (Pt. 1169) p.33; Awosika v. State (2010) 9 NWLR (Pt. 1198) p.49; Obasanjo-Bello v. F.R.N. (2011) 10 NWLR (Pt.1256) p.605. It therefore means that the prosecution may fail to prove the commission of the substantive offence but still prove the conspiracy to commit same. It is only where the conspiracy is juxtaposed with the commission of the substantive offence, that failure to prove the substantive offence would entail a discharge for the offence of conspiracy. In that case, where the evidence does not prove the substantive offence, the charge of conspiracy would also not stand. See Aituma v. Sule (2006) 10 NWLR (Pt. 989) p.452.

In the instant case the Appellant and his co-accused person were charged distinctly for conspiracy to commit robbery and for the offence of robbery. I have already resolved above that, the conviction of the Appellant for the offence of robbery is supported by the evidence on record. The offence of conspiracy being a distinct offence and separately charged has to be distinctly considered. In other words, the conviction of the Appellant for robbery would not automatically translate to his conviction for conspiracy to commit same. The trial court still had to consider and appraise the evidence so as to see whether the evidence led proved that the commission of robbery by the Appellant was a product of conspiracy between him and others. In other words, the trial court still had to consider whether the Appellant conspired with others to commit the offence of robbery for which he was convicted.

I have carefully read the judgment of the trial court at pages 49 – 60 of the Record of Appeal. After such perusal, I am unable to sight where the learned trial judge made any finding in respect of the charge of conspiracy. He only stated at page 59 of the record of appeal that, he is satisfied that the prosecution has proved the two counts of conspiracy and robbery against the accused persons beyond reasonable doubt. Though the learned trial judge failed to evaluate the evidence on the charge of conspiracy, this court is in good position as the trial court to evaluate same, so as to see whether the charge of conspiracy had been proved on the standard required by law.

The PW1 and PW2 who were victims of the acts of robbery committed by the Appellant had narrated how the Appellant and two others executed the robbery on the 1st day of May, 2008. They stated how they were driving towards Sango from Owode-Yewa direction when they were accosted by three men who impersonated as policemen. That they intercepted the Vanette Bus they were driving in, and ordered them to stop on the highway. The learned trial judge had found from the testimony of the PW1 and PW2 and the confessional statements of the accused persons admitted in evidence as Exhibits A, A2, B and B2 that the following facts had been established:

(i) That the accused persons and one Lanre Ogunlana (at large), set out from Sango on an elicit adventure on the day in question.
(ii) That in the course of their journey to Sango from Owode-Yewa, along Idiroko Road, the accused persons, driving a Nissan Bluebird car overtook and intercepted the PW1’s bus and forced the driver to stop, impersonating to be policemen on patrol duty.
(iii) That after their encounter with the PW1 and her people, the accused persons drove towards Agbara direction in order to escape after the operation.

The learned trial judge also found as proved that the Appellant and the co-accused person were arrested in a village along Agbara Road after a hot chase on the same day; and they volunteered statements which were admitted in evidence as Exhibits A, A2, B and B2 respectively. In making those findings, the learned trial judge, apart from the testimony of the prosecution witnesses, also relied on the confessional statements of the Appellant and his co-accused. He applied the required tests in ascertaining and ascribing probative value to confessional statements before he proceeded to rely thereon in convicting the Appellant. I have found in the course of this judgment that the statements of the Appellants were properly admitted in evidence. In Exhibit B, which was admitted without objection, the Appellant without any prevarication stated that he, his co-accused and one other who is at large were in the habit of impersonating as policemen in order to unlawfully dispossess travellers of their money. He also narrated how they in concert with those persons robbed the PW1 of her money and how he was arrested. His story agrees with that of his co-accused which was admitted as Exhibit A2. I therefore hold that the learned trial judge was right when he relied on the confessional statements of the Appellant in convicting him of the offence of conspiracy charged.
See Lasisi v. State (2013) All F.W.L.R. (Pt. 707) p.611; Stephen v. State (2013) All F.W.L.R. (Pt. 705) p.229

I have also pointed out that the confessional statement of the co-accused admitted in evidence as Exhibit A2, further strengthened the evidence of conspiracy charged. This is so because, by Section 8 of the Evidence Act, 2011, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring, for the purpose of proving the existence of the conspiracy as well as for the purpose of showing that such person was a party to it. See Aminu v. State (2005) 2 NWLR (Pt. 909) p.180 at 196 and Ibrahim v. State (2011) 1 NWLR (Pt. 1227) p.1. The confessional statements of the Appellant which is in tandem with that of his co-accused completely supported the charge of conspiracy. I am therefore satisfied that on the evidence on record that the prosecution proved the charge of conspiracy to commit robbery against the Appellant beyond reasonable doubt.

On the whole therefore, I am of the view and do hold that the prosecution, from the evidence on record, proved the two counts of conspiracy to commit robbery, and robbery against the Appellant. This appeal therefore lacks merit. It is accordingly dismissed. The judgment of the court below delivered on the 21st day of December, 2010 in Suit No. HCT/6C/2009 is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A.: My learned brother Haruna Simon Tsammani, JCA obliged me with a draft copy of the judgment just delivered. His Lordship has dealt with the issues in detail, I adopt same as mine in holding that the appeal is lacking in merit, I dismiss it. I also affirm the judgment of the trial court.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading before now the draft copy of the judgment of my brother Haruna Simon Tsammani JCA. I entirely agree with my Lord’s reasoning and conclusions. If I may, I wish to make a little contribution on contradictory evidence of a witness or witnesses.

The Appellant’s Counsel picked holes in the evidence of PW1, arguing that in his evidence-in-chief he stated that the stolen money was kept in the glove compartment of the bus while under cross-examination the witness said that the money was kept in the leg space in front of the bus. Learned Counsel also regarded as a material contradiction, the evidence of PW3 who in his statement stated that the Appellant was arrested in a river but in Exhibit B said that the Appellant was arrested in the bush.

The law does not envisage that there will be no contradictions in the evidence of witnesses. See Nwakoro v. Onuma (1999) 12 NWLR (Pt. 631) p.342. Evidence in court are recollections of events that happened by human beings. Very few humans can on separate occasions narrate in the exact same way an event they experienced. Where two or more humans narrate the same event that they witnessed, the odds are against an exact recollection of that event by all of them no matter how prodigious their memory may be. Allowance therefore has to be made for human foibles arising from lapse of time and differences in abilities of recall. The human memory is certainly not like a photocopier that takes in written material and reproduces same with unerring accuracy.
While the law recognized that contradictions will occur, what the law will not allow are contradictions that are material. Now what constitutes material contradiction will have to take its colour from the case; but generally, a contradiction is said to be material when it casts serious doubt on the case presented as a whole or as to the reliability of the witnesses, See Nwokoro v. Onuma (supra); Enahoro v. The Queen (1965) NMLR 265. It is also settled that for a contradiction to be material, it must relate to the material ingredients of the offence charged. See Igabele v. State (2005) 6 NWLR (Pt. 975) p.100.
A material contradiction therefore has to be one of real importance to the outcome of the case or of great consequences to same. A superficial contradiction will cause no harm to a case.

As earlier pointed out, one of the contradiction pointed out by learned counsel has to do with whether the money stolen was in the glove compartment or under the front seat at the time of the robbery. I think this is a minor contradiction; a mere trifling. The money was stolen from the bus and in particular, from the front end of it. That in my view is what is material. Again with respect to where the Appellant was caught, whether in the river or the bus, I think what is the critical thing is the general location of where he was caught. Was it in the same vicinity or in an entirely different location, say Lagos as opposed to Abeokuta? Since it is in the same location or vicinity, I do not see the contradiction bandied as being material. The law is that where the contradiction does not touch on a material point or substance of the case, it will not vitiate the conviction once the evidence is clear and is believed or preferred by the trial court. See Sele v. State (1993) 1 NWLR (Pt. 269) p.288.

Having offered my modest contribution and being completely satisfied with the lead judgment, I agree that the appeal lacks merit. It is dismissed.

Appearances

Musibau Adetunbi; Esq. with O. B. Ibitoye; Esq. and I. E. Omoneukan (Miss) For Appellant

AND

J. K. Omotosho; Esq. (D.D.P.P. Ogun State) with C. S. Itunpe (Miss) (State counsel, M.O.J. Ogun State) For Respondent