AKEEM JIMOH v. THE STATE (2019)

AKEEM JIMOH v. THE STATE

(2019)LCN/13622(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of July, 2019

CA/IB/121C/2017

RATIO

PRACTICE AND PROCEDURE: WHETHER THE COURT SHOULD DEAL WITH THE SUBSTANTIVE OFFENSE OR CONSPIRACY TO COMMIT THE OFFENSE FIRST

Where an indictment contain charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is because a conviction for conspiracy will fail if the conviction for the substantive offence is set aside. See Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238 at 244 paras C D. PER ABUBAKAR MAHMUD TALBA, J.C.A.

CONFESSION: WHETHER AN ACCUSED CAN BE CONVICTED BASED ON THIS

It is settled law that the guilt of an accused person may be proved by a confessional statement, circumstantial evidence from an eye witness to the commission of the crime. PER ABUBAKAR MAHMUD TALBA, J.C.A.

STEALING: HOW THE PROSECUTION CAN PROVE THE OFFENSE OF STEALING

For the prosecution to prove the offence of stealing contrary to Section 390 (6) of the Criminal Code Law, laws of Ogun State of Nigeria 2006 it must prove by credible evidence the following ingredients:
(1.) That the thing stolen is capable of being stolen.
(2.) That the accused has intention of permanently depriving the owner of the things stolen
(3.) That he was dishonest
(4.) That he had unlawfully appropriated the thing stolen to his own use.
See Aminu Musa Oyebanji v. The State (2015) 14 NWLR (Pt. 1479) 270. PER ABUBAKAR MAHMUD TALBA, J.C.A.

THE POSITION OF THE LAW WHEN AN ACCUSED HAS RETRACTED A CONFESSIONAL STATEMENT

The law is settled that the fact that an accused has retracted a confessional statement does not mean that the Court cannot act upon it and rely on same to convict him. See State v. Gwangwan (2015) 63 NSCQR 1 at 32 and Sani Abdullahi v. State (2013) 56 NSCQR 173. PER ABUBAKAR MAHMUD TALBA, J.C.A.

CONSPIRACY: THE NATURE

The gist of the offence of conspiracy is the meeting of the mind of the conspirators. See Njovens & Ors. v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal acts of the parties concerned which is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor. V. The State (1977) 5 SC 197 and Erim v. The State (1994) 5 NWLR (Pt. 346) 522. PER ABUBAKAR MAHMUD TALBA, J.C.A.

CONSPIRACY: WHAT MUST BE PROVED
To constitute an offence of conspiracy, the prosecution must prove:
1. That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not legal by illegal means.
2. Where the agreement is other than agreement to commit an offence it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
3. That each of the accused individually participated in the conspiracy. PER ABUBAKAR MAHMUD TALBA, J.C.A.

JUSTICES

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

AKEEM JIMOH Appellant(s)

AND

THE STATE Respondent(s)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court, Abeokuta judicial Division, delivered on 12th day of December, 2014.

The Appellant was arraigned before the trial Court on a two count information for conspiracy to steal contrary to Section 516 of the Criminal Code Law, Laws of Ogun State of Nigeria 2006 and stealing contrary to Section 390 (6) of same law.

During trial the prosecution called two (2) witnesses and tendered two (2) exhibits marked Exhibit PW1 and D1. The defence counsel raised objection to the admissibility of Exhibit P1 on the grounds of involuntariness the Court conducted a trial within trial after which the objection was overruled and Exhibit P1 the statement of the Appellant was admitted in evidence. At the close of the prosecution case the Appellant gave evidence on his own defence and he did not call any other witness. At the conclusion of evidence both counsel addressed the Court orally. In a considered Judgment at pages 75 ? 89 of the records, the learned trial Judge convicted the Appellant on all the two (2) counts

information and sentenced him to three (3) years and seven (7) years imprisonment on counts 1 and 2 respectively.

The Appellant being dissatisfied with the Judgment, he filed a notice of appeal on the 27th February, 2017, upon three grounds of appeal.
The brief facts of the case is that on 21st November, 2011 at about 08:30am Rasak Lawal (PW1) instructed the Appellant his manager at Arolat Petrol Station, Randa Area in Abeokuta, to lodge the sum of Five Million, Seven Hundred and Seventy Four Thousand Three Hundred and Thirty Naira (N4,774,330:00) in the bank. PW1 called one Isreal Ojokolo to drive the Appellant to the bank. After about Thirty Minutes, the Appellant called PW1 on phone and informed him that they have been attacked by armed robbers at Adeun Area and the said money has been snatched from him. PW1 then reported the matter to the police. The Appellant was arrested and taken to the police station where he made a confessional statement.

In compliance with the rules of this Court, the Appellant and the Respondent counsel filed and exchanged their brief of argument. At the hearing of the appeal on 8th April, 2019 the Appellants counsel

adopted and relied on the brief of argument filed on 28th March, 2017. He urge the Court to allow the appeal. The Respondent counsel adopted and relied on the brief of argument filed on 13th March, 2018 and it was deemed properly files on 22nd November, 2018. He urge the Court to dismiss the appeal.

In the Appellants brief, two issues were distilled from the three ground of appeal, for the determination of this appeal thus;
1. Whether the prosecution proved beyond reasonable doubt the offence of stealing against the Appellant in view of the fact that there was no corroboration of the retracted confessional statement by the eye witness and victim of the robbery in the person of Isreal Ojoloko who was not called as a witness nor by any independent evidence or witness.
2. Whether the learned trial Judge was right to have convicted the Appellant of the offence of conspiracy, when there is no evidence on record to support same, more so when the alleged co-conspirator(s) was/were purportedly identified and ascertained but was/were not arrested nor investigated.
?
However the Respondent formulates a sole issue for the determination of this

appeal thus:
Whether from the entirety of material and evidence available on the record, the conviction of the Appellant for the offence of conspiracy to steal as well as stealing is justified in the circumstances of this case.

It is settled that an issue for determination in an Appellate Court is a proposition of law or fact framed in a manner with an aim to determine the Judgment of an appeal. The Court has power to modify, reject or reframe the issues formulated by the parties to an appeal if in its view those issues will not lead to the proper determination of an appeal. See Bankole v. Pelu (1991) 8 NWLR (pt. 211) 503 and UMYCSNC (2002) 14 NWLR (Pt. 736) 116.
Furthermore, in the interest of justice, and for a just determination of an appeal an Appellate Court possess the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframe or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the Appellants brief of argument or that of the Respondent in the determination of an appeal. See AIB Ltd. v. IDS Ltd. (2012) 17 NWLR (Pt. 1328) 1 at 31;

Sha (jnr) v. Kwan (2000) 8 NWLR (Pt. 670) 685 and Peterside v. Fubara (2013) 6 NWLR (Pt. 1349) 156 at 172.

It is in view of these settled principle of law that the two issues contained in the Appellants brief and the sole issue formulated by the Respondent, are hereunder compressed and re-structured thus:
?Whether from the totality of the evidence before the Court, oral and documentary, the Respondent/Prosecution has been able to establish its case against the Appellant beyond reasonable doubt.”

To begin with the learned counsel for the Appellant referred to Section 135 (1) of the evidence Act which provides that if the commission of a crime by a party to any proceeding civil or criminal it must be proved beyond reasonable doubt. He relied on the case of Moji Olamolu v. The State (2013) 2 NWLR (Pt. 1339) 580 at 604 and Chidoze Anekwe v. The State (2014) 10 NWLR (Pt. 1415) 353 at 373.

In summary, the Appellants counsel argued and submitted that the prosecution has failed to discharge the burden of proof and proof beyond reasonable doubt and conjunctively all the ingredients of stealing to warrant conviction on same.

He submitted that there was no evidence that the Appellant had unlawfully appropriated the thing stolen to his own use. There was no incriminating evidence found in the accused person?s house or bank account. No evidence was led to the fact that the accused had stolen before the incident of the 21/11/2011 and it would be impossible for the accused to have used the proceeds of this robbery to purchase two cars or build a house in the past i.e before the robbery. Learned counsel submitted that there is no independent evidence outside the retracted confessional statement to show that such retracted statement was true. There was no independent evidence extrinsic to the confessional statement which can be used to corroborate the confessional statement. Learned counsel cited the case of Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 468. The learned counsel submitted that the trial Judge failed or refused to critically evaluate the weight to be attached to the retracted confessional statement by failing to subject the retracted confessional statement to the test laid down by the Supreme Court in the case of Nsofor v. State (2004) 18 NWLR (Pt.

905) 292 and Tosin Dele v. State (2011) 1 NWLR (Pt. 1229) 508 at 542 ? 543.

On the definition of corroborative evidence he referred to Black?s Law Dictionary Seventh Edition at page 577 thus:
?Evidence that differs from but strengthens or confirms other evidence (esp, that which needs support).”

Learned counsel cited the case of Oludotun Ogunbayo v. The State (2007) 8 NWLR (Pt. 1035) 157 at 178 to buttress his argument. He submitted further that evidence of corroboration must be independent testimony/evidence as against the evidence to be corroborated, the evidence in corroboration need to affect the accused by connecting or tending to connect him with the crime. But the lower Court found on the evidence that needed corroboration (retracted confessional statement) by using it to corroborate itself.

On what constitutes corroborative evidence learned counsel relied on the Supreme case of Irene Nguma (Alias Irene Okoli) v. Attorney. Gen of Imo State (2014) 7 NWLR (Pt. 1405) 119 at 158.

Learned counsel submitted that the learned trial Judge erred by stating that the accused person admitted other facts in Exhibit P1

therefore it has corroborated the confessional statement by fulfilling the weight to be attached to Exhibit P1 (See pages 82 ? 83) of the record). Such corroborating facts according to the learned trial Judge include, the primary school he attended, that he is from Igango; that he attended secondary school; that one Ibrahim Ojebisi took him to PW1 in August, 2009 to be employed as petrol attendant, that he was elevated to the position of manager some months after and that he knows Segun Agabi, Kehinde Hassan (both former employees of Arolat Filling Station). But the Court did not avert its mind to the fact that the accused person had earlier made a statement dated 21st November, 2011, wherein he stated the background the Court found on, the primary school he attended, his home town, when he was employed at the filling station. The statement was taken at the Nigerian police force Lafenwa Division on the 21st November, 2011.
?
The Appellant stated that he was again beaten and severally punished that the PW1 told the police he being the manager of the petrol station was responsible for the robbery and told the police what they wrote. The inability to

source or identify an independent testimony or evidence to corroborate the retraced confessional statement should have made the learned trial Judge exculpate the Appellant by the holding that the conviction was not secured and thus discharge and acquit the Appellant. Learned counsel submitted that where there are some elements of doubt in a criminal proceedings the doubt must be resolved in favour of the accused. He cited the case of Olalekan Omoyele v. The State (2014) 3 NWLR (Pt. 1394) 232.

On the offence of conspiracy the learned counsel submitted that the so called co-conspirators were neither arrested nor investigated to warrant any inference therefrom. And that the co-conspirators were named in the purported confessional statement and particularly one was linked to a known address which is a military barracks learned counsel submitted that it was vital for the prosecution to have investigated this fact contained in, the purported confessional statement. And failure to do so is fatal to establishing both the substantive offence of stealing and the concomitant charge of conspiracy. He said if the offence of stealing is not proved then it follows that

the offence of conspiracy to steal will fail. He said the prosecution did not prove any agreement directly or indirectly between the accused and any other person. Learned counsel cited the case of R. V Cooper and Compton (1947) 2 All E.R 701 and Nnaji & Ors v. I.G.P (1957) 2 F.S.C 18 -19. Learned counsel further submitted that the inability, failure or neglect by the prosecution to bring before this Court other culpable persons particularly the soldier man precluded the lower Court from finding out or assessing the veracity of the existence of a conspiracy between the Appellant and the, mentioned and ascertained individuals is fatal to his charge.

He referred to Section 167(d) of the Evidence Act 2011, which provides that the Court may presume evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.

Learned counsel submitted that the inability of the prosecution to call Isreal Ojokodo and Kazeem Bello (soldier man) as witnesses, would if produced be unfavourable to the prosecution. He cited the case of Kayode babarinde & Ors. v. The State (2014) 3 NWLR (Pt. 1395) 568 at 594 and Oduneye v. The State

(2001) 1 SC (Pt. 1) 2.

In response to the Appellants submission, the learned counsel for the Respondent referred to the case of Jua v. The State (2010) 25CM 68 at 70 on the requirement of prove beyond reasonable doubt learned counsel also referred to Exhibit P1 the Appellant confessional statement and he submitted that it contained how the Appellant conceived the thoughts of permanently depriving PW1 of the sum of N5,774,330:00, how he contracted those who could do it and how the plan was executed. He submitted that a confessional statement where voluntary and cogent is the best form of evidence against an accused person. He referred to Akpan v. State (2008) 14 NWLR (Pt. 1106) 72 and Adebayo v. AH-Gen, Ogun State (2008) All FWLR (Pt. 412) 1195. He said the confessional statement had satisfied all the test as laid down by the Supreme Court in the case of Alarape & 3 Ors. v. The State (2001) 5 NWLR (Pt. 705) 79. Learned counsel referred to the findings of the trial Court at page 85 of the record. He submitted that a confessional statement which passed the test as in this case is enough to sustain a conviction. He cited the case of

Alarape & 3 Ors. v. The State (Supra) to buttress his argument. He also submitted that the Court can still convict on the confessional statement even where he resiled from it. He cited the case of Sule v. The State (2009) 17 NWLR (Pt. 1169) 33.

Learned counsel submitted that the law is that where an accused person resile from his confessional statement, it is his duty as part of his defence to explain the reasons why his extra judicial confession could not be correct. He said the only feeble explanation made by the Appellant was an afterthought. He said the learned trial Judge after evaluating Exhibit P1 for the purpose of ascribing probative value to it, he made the findings at page 85 of the record. He submitted that it is a duty on the Appellant to give explanation as to the inconsistency between his extra judicial statement and his testimony in Court. The Appellant could not give any explanation why his testimony in Courts is completely contrary to Exhibit P1 which no one else could have made. The Appellant claimed he never made any statement at Eleweran (SCID) whereas ten days after he made Exhibit P1 he made a statement at the (SCID) precisely on 23/12/2011.

See page 12 of the record.

Learned counsel submitted that the Appellant therein admitted that he made a confessional statement but that he did so because PW1 (his boss) threatened to kill him. Whereas he testified during his examination in Chief that it was PW1 who told the police the content of Exhibit P1. And that he was merely asked his name and address. Learned counsel contended that the tales told by the Appellant fails to explain the contradictions and the effect is that the Court ought to disbelieve him he cited the case of Onwumere v. The State (1991) 4 NWLR (pt. 186) 428.

On conspiracy the Respondents counsel submitted that from the circumstances of the case, a conviction for the substantives offence is proved. He relied on the case of Shurumo v. The State (2010) 16 NWLR (Pt. 1218) 65 and Oduneye v. The State (2001) 5 NSCQR 1. He submitted that contrary to the submission of the Appellants counsel, it is not the law that in order to convict for conspiracy the substantive offence must have been proved. He said the law punishes the mere consensus as idem to commit a crime. The evil agreement to do an unlawful act or an agreement to do a lawful

act by unlawful means. It is also not the law that an accused person cannot be convicted of conspiracy to commit an offence merely because the other offenders were not apprehended.

It is settled law that an accused person cannot be convicted of conspiracy to commit an offence where the co-accused person has been acquitted of the offence, on the principle of law that a person cannot conspire with himself. See the case of Shurumo v. The State (Supra).

Learned counsel submitted that conspiracy can be inferred from the fact that the Appellant himself planned, orchestrated and engaged those who carried out the robbery operation. He said contrary to the submission of the Appellants counsel the intention of the Appellant to permanently deprive PW1 of the sum of N5,725,000:00 was the very reason he contracted people to collect the money from him by way of robbery so that no one would suspect his complicity. The Appellant had stated that the robbers took away N2.8 Million while he kept N2 Million to himself. PW2 had been deprived of N3.8 Million by the robbers, which robbery was organized by the Appellant. And the N2 Million the Appellant stole personally. The

driver Isreal Ojoloko cannot corroborate the confessional statement of the Appellant as he was not a participant in the conspiracy and the robbery. Both the prosecution and Appellant conceded that there was a robbery. The calling of Isreal Ojokolo, the driver would only confirm that there was robbery and it is that robbery that the Appellant had confessed to in Exhibit P1, to have masterminded. That Kazeem Bello (soldier man) which the Appellant made mention of in Exhibit P1 could not be traced and/or apprehended, is not a sufficient ground to hold that the prosecution failed to prove its case against the Appellant. It is the prerogative of the Respondent as prosecution to call the number of witnesses it wishes in proof of its case against an accused person. Prove of crimes beyond reasonable doubt is not about the number of witnesses called but the, quality of such evidence given by the witnesses. He cited the case of Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65, Okochi & 2 Ors. v. Animkwoi & 2 Ors. (2003) 18 NWLR (Pt. 851) and Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584. Learned counsel submitted that the prosecution has proved the offences for

which the Appellant was convicted beyond reasonable doubt warranting the trial Court to convict him. Proof beyond reasonable doubt is not proof beyond all shadows of doubt. Proof beyond reasonable doubt is achieved when the prosecution has proved the elements or ingredients of the offence against an accused person. See Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Alabi v. State (1993) 7 NWLR (Pt. 307) 511 and Afolalu v. The State (2010) 16 NWLR (Supra).

Learned counsel submitted that it is the law that the Court can act on the confessional statement of an accused person to sustain a conviction, where the statement is retracted in Court, independent corroboration however slight must be sought. See Okoh v. The State (2014) 8 NWLR (Pt. 1410) 502. He submitted further that all the corroborative acts go to fortify Exhibit P1, which are quite direct, positive and sufficient to warrant the conviction of the Appellant. There is abundance of extrinsic evidence which corroborated Exhibit P1. The learned trial Judge carried out a proper evaluation of the facts and evidence before him in the entire circumstances of this case and duly applied the law to them in

reaching the decision convicting the Appellant.

Learned counsel urged the Court to dismiss the appeal. In criminal cases, the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it. See Section 135 (1) and (2) of the Evidence Act 2011. Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. The assertion before the trial Court that the Appellant committed the offence for which he was charged, tried and convicted was made by the prosecution. The burden of proof was therefore on the prosecution who was required to prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the Appellant. The burden never shifts. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A ? C and Solola v. The State (2005) 5 SC (Pt. 1) 135.

Where an indictment contain charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for

the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. This is because a conviction for conspiracy will fail if the conviction for the substantive offence is set aside. See Oladejo v. State (2018) 11 NWLR (Pt. 1630) 238 at 244 paras C ? D.

It is settled law that the guilt of an accused person may be proved by a confessional statement, circumstantial evidence from an eye witness to the commission of the crime.

Appellant admitted the following facts thus:
?On the 21/11/2011, I was then working as manager at Arolat Petroleum and when I finished sales on that day, the money made totaled N5.7M (Five Million, Seven Hundred Thousand naira). I called my boss to inform him and he asked me to take the money to the bank as I usually do. I did together with the driver that used to take me. It was my boss that called the driver to come and take me to the bank. On our way to the bank we were attacked by robbers. The name of my boss is Lawal Razak (Pw10 while the driver name is Isreal. Only the driver and myself were in the car at the time of the attack. On the spot of the attack I called PW1 to inform him that we were robbed?.?
During cross ? examination the Appellant said:
.. At the time of the robbery, the total sum of money and the car were snatched from us?.?
See pages 16 ? 18 of the record. The trial Court at page 83 of the record found from the evidence of PW1 and DW1 the Appellant that:
In this instance, it is not a matter of contention that the sum of N5,774,330 being the

proceeds of sale from the Petrol Stations of PW1 is what is alleged to have been stolen. This was stated in evidence by PW1 and also by the accused (DW1) under examination in Chief and also under cross examination. The said sum was a cash sum, thus it is physical and tangible, capable of being held in hand. It is therefore capable of being stolen thereby satisfying the 1st ingredient of the offence of stealing.”

?Now did the Appellant has intention of permanently depriving the owner of the money stolen?. The Appellants counsel submitted that the Appellant stated that he has never seen the robbers before and he would not recognize them. And more so the purported accomplices mentioned in Exhibit P1 (the retracted confessional statement) in the person of Segun Agabi, Kehinde Hassan (both former petrol attendants with PW1) and Kazeem Bello (soldier man) were never investigated there is no evidence that the Appellant had unlawfully appropriated the money stolen to his own use. There is no independent evidence outside the retracted confessional statement to show that the statement was true. And there is no any independent evidence extrinsic to the

confessional statement which can be used to corroborate the confessional statement.

The extra judicial statement of the Appellant was subjected to trial within trial before it was admitted in evidence in a considered ruling delivered on 19th day of June, 2014. The procedure adopted by the learned trail Judge during trial within trial is in order. The Appellants counsel contention that there was no independent evidence outside the retracted confessional statement to show that the statement is true or to corroborate the statement has been settled by the learned trial Judge. At page 84 of the record the learned trial Judge held thus:
Thus the fact that DW1 in his evidence in Chief retracted the statement in Exhibit P1, does not affect the admissibility of those statements and this Court will be, bound to place reliance on same if it passes the test for determining the veracity of a confessional statement. See Akpan v. The State Supra at 467 para C and 468 paras C ? E and Ntaha v. The State (1972) 4 SC 1 ?

?After evaluating the evidence of the Appellant vis a vis Exhibit P1, the learned

trial Judge found as follows:
?I find that there are facts outside the confessions in Exhibit P1 to show that it is true and the statements in Exhibit P1 are tested and true. Besides, the accused person being the manager of Arolat, filling station and being in charge of collating the proceeds of sale and taking them to the bank, knew precisely when he would collate and take the money to the bank. He therefore had opportunity to plan to steal the money under the guise that he was robbed. To my mind the confession in Exhibit P1 is possible and is consistent with other facts which have been ascertained and proved in evidence. I am convinced that Exhibit P1 is free, voluntary direct and positive confessional statement.”
See page 11 of the records.

The findings of the learned trial Judge is well grounded on facts and law. He has subjected Exhibit P1 to all the test as laid down by the Supreme Court in the case of Alarape & 3 Ors. v. The State (Supra) and Nsofor v. State (Supra).

In Exhibit P1, the Appellant made the following admission:
? I am the manager of the Filling Station situated at Randa

Area Aiyetoro Road Abeokuta. All the managers in the other Filling Station belonging to Arolat Filling Station usually bring all the sales money to me everyday and I use to take it to the bank Zenith Bank. Actually I am among the gang who carried out. The robbery operation. One Segun Agabi ?M? and Kehinde Hassan ?M? are also Petrol attendants at my Filling Station and we all planned together to robb the money including one Kazeem Bello ?M? who is a military personnel at Alamale Barracks Aiyetoro and he is living in the barracks. On 20/11/2011 at about 8:30 Pm one Kazeem Bello, Myself, Segun Agabi ?M? Hassan Kehinde a.k.a Baba Usman met ourselves behind Arolat Filling Station and conspired to rob the money which I wanted to take to the bank the following day the following day and we planned our strategy that they should organized men to rob me on my way to the bank. On 21/11/2011 at about 8:30 am I carried N5,800,000 Five Million Eight Hundred Thousand Naira to take to bank. The Director Lawal Rasaq ?M? then sent his driver one Isreal Ojoloko ?M? to come and carried me with one red Nissan

Sunny Car and he met me at the Filling Station. While two of us started going with the money. Before we move, I have removed N2,000,000 Two Million Naira from the money and I kept it with me. On our way going getting to Adeun Area Along Aiyetoro Road a Mazda Ash Colour crossed our vehicle and two armed men came down from the vehicle they shot at the bumper of out vehicle and we came down and lie down while they took the sum of Three Million Eight Hundred Thousand Naira away. As a matter of fact I am aware of the robbery I was the person that conspired with the robbers to come and rob me on my way to the bank and it was myself, Segun Agabi ?M?, Hassan Kehinde and a Soldier man named Kazeem Bello that planned for the robbery…?

The Appellants evidence in chief before the trial Court even though its slightly different from his admission in Exhibit P1 yet it goes a long way to strengthen the prosecution?s case. At the point of tendering Exhibit P1 in evidence the Appellant raise an objection on the grounds of involuntariness, which led to a trial within trial. But when the Appellant gave evidence in chief he

summersaulted by retracting the confessional statement. He said ?the policemen merely asked me for my name and address. It was my boss that told the policemen that I being the manager of the Petrol station was responsible for the robbery. It was what my boss stated that the policemen wrote down as my statement?..?

The Supreme Court has explained in a long line of cases that an accused person alleging that he did not make a statement should not be under an illusion that non est factum amounts to involuntariness. See Ehot v. State (1993) 4 NWLR (Pt. 290), Ikpasa v. A.G Bendel (1981) 9 SC 7 at 28 and Obidiozo v. State (1987) 4 NWLR (Pt. 67) 748 at 762.

The Appellant herein, by virtue of the evidence before the trial Court did not only participate in the stealing but he set in motion the process that led to the stealing. The learned trial Judge rightly found as

follows:
?I have no hesitation in finding the accused to be a dishonest person who was motivated by greed to plot with others to permanently deprive PW1 of his money. I agree with the Learned Director of Public Prosecutions submission that the accused persons act of organizing, conniving and conspiring with others to rob him of the stolen money are intentional acts channeled forwards depriving PW1 of his money. I find that the prosecution has proved the essential ingredients of the offence of stealing beyond reasonable doubt against the accused person.?

Based on the above findings, it is my firm view that the lower Court was right in convicting the Appellant for the offence of stealing and the sentence imposed on him.

?The next question I will consider is whether the Appellant conspired with other persons to commit the offence of stealing. Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consist not merely in the intention of two or more, but in the agreement of two or more persons to do an unlawful act

by unlawful means. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. See Njovens & Ors. v. The State (1973) NSCC 257. It is therefore difficult to prove the offence of conspiracy by direct evidence. Conspiracy is a matter of inference from the criminal acts of the parties concerned which is done in pursuance of an apparent criminal purpose. It is therefore the duty of the Court in every case of criminal conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with the offence. See Daboh & Anor. V. The State (1977) 5 SC 197 and Erim v. The State (1994) 5 NWLR (Pt. 346) 522.
To constitute an offence of conspiracy, the prosecution must prove:
1. That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not legal by illegal means.
2. Where the agreement is other than agreement to commit an offence it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
?3. That each of the accused individually participated in the conspiracy.

On the offence of conspiracy, the learned trial Judge made the following findings thus:
?On the count of conspiracy by Exhibit P1, the accused confessed to how he planned and plotted with two former employees of Arolat Petrol Station to convert the proceeds of sale. He further confessed to how the three of them enlisted the help of a soldier from Alamala barracks who arranged armed to double cross their vehicle while on his way to the bank and shot into the air while snatching the money in his possession. The Director of Public Prosecution has correctly submitted that it can inferred from Exhibit P1 that there was a meeting of minds between the accused and others at large to commit the crime.”

In this instant case the learned trial Judge relied on the confessional statement of the Appellant to hold that conspiracy can be inferred from Exhibit P1 that there was a meeting of minds between the accused and others at large. In Exhibit P1 the Appellant recounted how he planned and plotted with two former employees of Arolat Petrol Station to steal the proceeds of sale and permanently deprive the owner. The law is trite and

well established that it is not open for an Appellate Court to interfere with findings of a trial Court when such findings have been made on legally admissible evidence or they are perverse or are indeed not based on any evidence before the Court. See the case of Sele V. The State (1993) 1 NWLR (Pt. 269) 276 at 282 and Iyaro v. The State (1988) 1 NWLR (Pt. 69) 256.

The confessional statement of an accused person, where it is direct, positive and unequivocal as to the commission of the crime charged is the best evidence and can be relied upon solely for conviction of the accused person. See Azabada v. State (2014) 12 NWLR (Pt. 1420) 40. Earlier in this Judgment it was held that the learned trial Judge subjected the confessional statement Exhibit P1 to the six test and came to the conclusion that Exhibit P1 is free voluntary, direct and positive. There is clear evidence before the trial Court to justify the conviction of the Appellant. Therefore for emphasis this Court will not given the circumstances of this case interfere with the findings of the trail Court. I am convinced that the findings are not perverse and are supported by credible evidence of PW1

and the confessional statement Exhibit P1. The findings were neither reached as a result of a wrong approach to the evidence or as a result of a wrong application of evidence. See Ochiba v. The State (2011) 12 SC (Pt. iv) 79 and Olowu v. Nig Army (2011) 12 SC (Pt. ii) 1.

In sum, I resolve the sole issue I have formulated in this appeal against the Appellant. It is in view of the foregoing that I hold that this appeal lacks merit and is accordingly dismissed. The conviction and sentence of the Appellant by the trial Court is hereby confirmed.

NONYEREM OKORONKWO, J.C.A.: In the lead judgment of my learned brother Abubakar Mahmud Talba, JCA in this appeal, His Lordship concluded as follows:
“I am convinced that the findings are not perverse and are supported by credible evidence of PWI and the confessional statement Exhibit PI, The findings were neither reached as a result of a wrong approach to the evidence or as a result of a wrong application of evidence. See Ochiba v. The State (2011) 12 SC (pt. iv) 79 and Olowu v. Nig. Army (2011) 12 SC (pt.ii) 1.
?In sum, I resolve the sole issue I have formulated in this appeal

against the appellant
It is in view of the foregoing that I hold that this appeal lacks merit and is accordingly dismissed.”

Upon going through the draft judgment, I could not but agree with the observation and conclusion highlighted above.
I agree.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the draft of the lead judgment just delivered by my learned brother, Abubakar Mahmud Talba JCA.

The Appellant at his trial before the lower Court objected to the admissibility of his extra judicial statements on the ground that it was not voluntarily made by him. The trial judge ordered a trial within trial to ascertain the voluntariness or otherwise of the statement. At the end of the trial within trial, the Court found the statement to have been voluntarily made and admitted it in evidence as Exhibit P1.

The Appellant however in his defence before the lower Court alleged that the said statement was not his deed and has argued before us that having retracted Exhibit P1 the statement required corroboration for it to sustain his conviction. It is significant to note that there is no appeal against the

finding of the lower Court that Exhibit P1 was voluntarily made.

The issue whether Exhibit P1 was obtained by fraud or duress has been resolved by the trial Court. The defence of “non est factum” put up by the Appellant was therefore of no moment. The lower Court was right to have relied on Exhibit P1 to convict him.

?It is for the above and the fuller reasons in the lead judgment that I also find this appeal unmeritorious and proceed to dismiss same. Appeal is dismissed.

Appearances:

O.A. OkinFor Appellant(s)

A.T. Olawale with him, A.L AyegbusiFor Respondent(s)

Appearances

O.A. OkinFor Appellant

AND

A.T. Olawale with him, A.L AyegbusiFor Respondent