ALIU v. STATE (2021)

ALIU v. STATE

(2021)LCN/15159(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 19, 2021

CA/IB/356C/2018

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

KABIRU ALIU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING USE OF CONFESSION IN ESTABLISHING THE OFFENCE CHARGED AGAINST AN ACCUSED PERSON BEYOND REASONABLE DOUBT

Now, in criminal trials, the Prosecution has the onus of establishing the offence charged against an accused person beyond reasonable doubt. The easiest way to accomplish this and solve the crime is to get a confession. This is so because Section 28 of the Evidence Act, 2011, defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See AKINRINLOLA vs. THE STATE (2016) LPELR (40641) 1 at 8-9, MUHAMMAD vs. THE STATE (2017) LPELR (42098) 1 at 16 and SULE vs. THE STATE (2017) LPELR (47016) 1 at 27. Furthermore, a free and voluntary confession of guilt made by an accused person, if direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied as to the truth of the confession. See JOHN vs. THE STATE (2017) LPELR (48039) 1 at 56, YESUFU vs. THE STATE (1976) 6 SC 167 at 163, IDOWU vs. THE STATE (2000) 7 SC (PT 11) 50 at 62 and NSOFOR vs. THE STATE (2004) 18 NWLR (PT 905) 292. This being so, the law has laid down requirements to govern the obtaining of extra-judicial statements in order to ensure that the statements are made voluntarily. The word “voluntary” is not defined in the Evidence Act. However, Section 29 (2) of the Evidence Act is a guide as to when a confession is not voluntary. By the said Section, any confession obtained by oppression or in consequence of anything said or done, which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, shall not be allowed to be given in evidence, unless, the prosecution proves beyond reasonable doubt that the confession was not obtained in a manner contrary to the provisions of the said Section 29. Section 29 (5) then defines oppression as including torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. Generally, a confessional statement will not be admissible if it is obtained by oppression; the statement of an accused person must be free and voluntary. A statement obtained from an accused person who has been threatened or otherwise violently dealt with cannot be admissible in evidence. The same is also true of a confession obtained through coercion, and coercion can be mental as well as physical. When an accused person challenges the admissibility of his confessional statement on the ground that it was not voluntarily made, a trial within trial or voir dire (mini trial) must be conducted at nisi prius to ascertain the voluntariness of the statement. See BABARINDE vs. THE STATE (2014) 3 NWLR (PT 1395) 568, LATEEF vs. FRN (2010) 37 WRN 85 at 107 and GBADAMOSI vs. THE STATE (1992) 9 NWLR (PT 266) 465. In a voir dire, the onus is on the Prosecution to prove that the confessional statement was voluntarily made. See THE STATE vs. OBOBOLO (2017) LPELR (48405) 1 at 31-34, EFFIONG vs. THE STATE (1998) 5 SCNJ 158 and IHUEBEKA vs. THE STATE (2000) 4 SC (PT 1) 203. This onus never shifts. See NSOFOR vs. THE STATE (2005) ALL FWLR (PT 242) 397. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER OBJECTION TO A STATEMENT ON THE BASIS OF NON EST FACTUM WILL AFFECT THE ADMISSIBILITY OF THE CONFESSIONAL STATEMENT

The law is clear, that objection to a statement on the basis of non est factum does not affect the admissibility of the statement since it is a question of fact to be determined at the conclusion of the trial. See AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860) 367 at 402 and MADJEMU vs. THE STATE (2001) 25 WRN 1 at 12 – 13, 23 and 25. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER THE RETRACTION OF OR RESILING FROM A CONFESSIONAL STATEMENT OR THE DENIAL BY AN ACCUSED PERSON WILL RENDER THE STATEMENT INADMISSIBLE

The law seems settled that the retraction of or resiling from a confessional statement or the denial by an accused person that he did not make the statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. STATE (2001) 14 WRN 1 at 20 and KAREEM vs. FEDERAL REPUBLIC OF NIGERIA (2001) 49 WRN 97 at 111. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ATTITUDE OF THE COURT REGARDING SPECULATION

It is a rudimentary principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of law are Courts of facts and laws. Courts decide issues on facts established before them and on laws. Courts avoid speculation. See OGUONZEE vs. THE STATE (1998) 5 NWLR (PT 551) 521, ADEGBITE vs. THE STATE (2017) LPELR (42585) 1 at 13-14, THE STATE vs. AIBANGBEE (1988) 7 SC (PT 1) 96, UDOSEN vs. THE STATE (2007) 4 NWLR (PT 1023) 125 at 164 and THE STATE vs. YAHAYA (2019) LPELR (47611) 1 at 34. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW REGARDING DUTY OF THE PROSECUTION TO CALL MATERIAL WITNESSES TO PROVE ITS CASE

…it is settled law that it is the quality of evidence that is adduced that matters and not the quantity. There is no obligation on the prosecution to call a host of witness. All that is required is for the prosecution to call enough material witnesses to prove its case. Indeed, the testimony of a sole credible witness which is qualitative to establish the case beyond reasonable doubt as required by Section 135 of the Evidence Act would suffice. See OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 25-26, AYENI vs. THE STATE (2016) LPELR (40105) 1 at 27, SUNDAY vs. THE STATE (2017) LPELR (42259) 1 at 25-26 and ODILI vs. THE STATE (1977) LPELR (2221) 1 at 10. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW REGARDING THE NATURE OF THE OFFENCE OF CONSPIRACY

In HARUNA vs. STATE (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23–24, Fatayi-Williams, JSC (as he then was) stated as follows: – “Conspiracy as an offence is nowhere defined in the Criminal Code… It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.” The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR vs. STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. F.R.N. (2001) 53 WRN 20 at 54 and STATE vs. OSOBA (2004) 21 WRN 113. Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See SULE vs. STATE (2009) 17 NWLR (PT 1169) 33 and ADEJOBI vs. STATE (2011) LPELR (97) 1 at 36. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See ODUNEYE vs. STATE (2001) 13 WRN 88. Conspiracy to commit an offence is more often than not, hatched in secrecy, which makes it difficult to prove by direct and distinct evidence. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar were seen together coming out of the same place, as indeed they do not need to know each other to be adjudged conspirators. It is enough that they have communicated at any point. Once there is a meeting of the mind, there is conspiracy and it is immaterial that one of the conspirators reneged, repented or developed cold feet. See OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 25, IBOJI vs. THE STATE (2016) 9 NWLR (PT 1517) 216, OSARENREN vs. FRN (2018) 10 NWLR (PT 1627) 221 and KOKU vs. THE STATE (2020) LPELR (49606) 1 at 24-27. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

HOW A CHARGE OF CONSPIRACY MAY BE PROVED

I iterate that the general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See LAWSON vs. STATE (1975) 4 SC 115 at 123, AKANO vs. A-G BENDEL STATE (1988) 2 NWLR (PT 201) 232, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) 466. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW REGARDING STANDARD OF PROOF REQUIRED IN CRIMINAL TRIALS

There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13. Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

WAYS BY WHICH THE GUILT OF AN ACCUSED PERSON MAY BE PROVED

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely: 1. By reliance on a confessional statement of an accused person voluntarily made. 2. By circumstantial evidence. 3. By evidence of eyewitnesses. See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 8 NWLR (PT 1234) 209 at 236 and ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16. It seems that a fourth way or method was added by Odili, JSC in OGOGOVIE vs. THE STATE (supra) at 11, namely: “admission by conduct of the accused person/appellant.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was one of three accused persons who were arraigned before the High Court of Ogun State (hereinafter the lower Court) in SUIT NO. HCT/8R/2009: THE STATE vs. KABIRU ALIU & 2 ORS., on a three-count Information for conspiracy to commit armed robbery and armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R 11, Laws of the Federation of Nigeria, 2004.

The Appellant pleaded not guilty to the offences charged and the matter was subjected to a plenary trial. The Prosecution called five witnesses and also tendered documentary evidence at the trial. The Appellant testified in his defence and called no other witness. In its judgment, the lower Court, Coram Judice: Ogunsanya, J., convicted the Appellant as charged and sentenced him to death. The judgment of the lower Court which was delivered on 5th July 2018 is at pages 136-161 of the Records of Appeal.

The Appellant was dissatisfied with the decision of the lower Court and he appealed against the same on eight grounds of appeal. The Notice of

Appeal which was filed on 6th August 2018 is at pages 162-169 of the Records.

In prosecution of the appeal, the Records of Appeal were compiled and transmitted on 16th August 2018 and the parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument which was filed on 15th October 2018, but deemed as properly filed on 27th May 2020, was settled by Mazi Afam Osigwe, of counsel, now a Senior Advocate of Nigeria. Four issues were distilled for determination in the appeal, videlicet:
1. Was the learned trial judge right in dismissing Appellant’s objection to the admissibility of confessional statement allegedly made by Appellant (GROUND II).
2. Was the learned trial judge right in his holding that it found corroboration for the alleged confession of Appellant in the statements of PW1, PW2 and PW3 (GROUND V).
3. Was the trial Court right in its finding and decision that PW1 and PW2 identified Appellant alongside the other two accused persons as one of the persons who robbed them as well as unequivocally placed him at the crime scene (GROUND IV).
4. Was the trial Court right in convicting Appellant of

conspiracy and armed robbery even when there was no independent evidence linking him to the other accused persons as one of the three persons who committed the offences of conspiracy and armed robbery (GROUNDS I, III, VI and VII).

The Respondent’s Brief of Argument which was filed on 11th March 2020, but deemed as properly filed on 27th May 2020 was settled by Mrs. R. B. Kadiri, Director, Law Development & Library Services, Ministry of Justice, Ogun State. The Respondent formulated two issues for determination, scilicet:
(1) Whether from the totality of evidence adduced at the trial, the prosecution has proven the offence of Conspiracy of Commit Armed Robbery and Armed robbery against the Appellant beyond reasonable doubt.
(2) Whether the trial Court rightly admitted and relied on the Appellant’s confessional statements having regard to the circumstances of the case.

The Appellant further filed a Reply Brief of Argument on 30th April 2020. The Appellant’s Reply Brief of Argument was also deemed as properly filed on 27th May 2020.

At the hearing of the appeal, Mrs. Obiageli Benson (holding the brief of

Mazi Afam Osigwe, SAN), of counsel for the Appellant and Mrs. R. B. Kadiri, learned counsel for the Respondent adopted and relied on their respective briefs of argument and urged the Court to uphold the submissions therein in the determination of the appeal.

I have considered the issues for determination nominated by the parties. The Respondent’s issue number two is akin to the Appellant’s issue number one, while the Respondent’s issue number one is distensible, such that it encompasses and encapsulates the Appellant’s issue numbers two, three and four. Accordingly, on account of the succinct and apt nature of the issues as distilled by the Respondent, it is on the basis of the said issues crafted by the Respondent that I would consider and resolve this appeal, starting with the Respondent’s issue number two, which I have already stated is akin to the Appellant’s issue number one; and thereafter, I will segue to consider the Respondent’s dilatable issue number one.

ISSUE NUMBER ONE
Whether the trial Court rightly admitted and relied on the Appellant’s confessional statements having regard to the

circumstances of the case.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong to have dismissed the objection to the admissibility of the Appellant’s confessional statement on the ground that the statement contained intimate family facts which only the Appellant could have supplied; and that the signature on the statement was regular and could not have been that of someone in the state of trauma that the Appellant described.

It was stated that the Appellant was transferred from the Ajuwon Police Station to the State CID with the case file containing the statement the Appellant made at Ajuwon Police Station. It was opined that the intimate family facts could have been gotten by the Police Officers at State CID from the statement in the said case file. It was submitted that the signatures on the statements made at Ajuwon Police Station (pages 18 and 20 of the Records), were not the same as the signature on the statement made at State CID. It was further stated that the lower Court did not obtain any specimen signature from the Appellant with which to compare other signatures as to form an

opinion as to the regularity of the signature vide NDOMA-EGBA vs. ACB PLC (2005) 14 NWLR (PT 944) at 1056 and WILCOX vs. QUEEN (1961) 2 SCNLR 296.

It was asserted that the decision of the lower Court runs counter to the provisions of Section 101 (1) & (2) of the Evidence Act which requires the Court to compare the signatures of a person before it can form an opinion. It was posited that the prosecution testified that the Appellant’s statement was made in an open place with many persons, but that none of the said persons was called to testify. It was maintained that the Appellant’s testimony that he was beaten and assaulted is borne out by the portion of the Appellant’s Statement (Exhibit C), where it is written that the Appellant cannot write his statement by himself because he has wound on his hands. It was opined that it was an admission that the Appellant was injured in police custody and therefore could not write his statement himself. The Court was urged to hold that no credible evidence was adduced, establishing that the Appellant voluntarily signed the statement.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It was submitted that an accused person can be convicted solely on his confessional statement, where it is direct, positive and proved since it is an admission made by an accused person. The case of AKPA vs. THE STATE (2008) 8 SCM 68 was referred to. It was stated that upon the Appellant objecting that his statement was not made voluntarily, the lower Court conducted a trial within trial as required by law, after which the lower Court admitted the statement in evidence. The cases of OGUDO vs. THE STATE (2011) 11-12 (PT 1) SCM 209 at 212, LASISI vs. THE STATE (2013) 6 SCM 97 at 113 and JIMOH vs. THE STATE (2014) 11 SCM 216 were relied upon.

It was contended that it is difficult for an appellate Court to upturn the decision reached at a trial within trial admitting a statement in evidence, as the process is purely based on the credibility of witnesses vide LASISI vs. THE STATE (supra) at 113 and IBEME vs. THE STATE (2013) LPELR-20138 (SC). It was posited that the retraction of a confessional statement will not adversely affect the same once the Court is satisfied as to its truth. The cases of OSETOLA vs. THE STATE (2012) 12 SCM (PT 2) 347 at 365-366 and

NWACHUKWU vs. THE STATE (2007) 12 SCM (PT 2) 447 at 454 were cited in support. The Respondent maintained that the lower Court having found the statement to be positive, direct and unequivocal and corroborated by the prosecution witnesses was correct to rely on the same to convict the Appellant.

It was asserted that a confessional statement is the best evidence in criminal proceedings and once admitted in evidence; it becomes part of the prosecution’s case which the Court must consider; and that even where retracted, the Court can still convict on it after applying the necessary tests to ascertain the veracity of the confession. The cases of NWACHUKWU vs. THE STATE (supra) at 455, OSENI vs. THE STATE (2012) 4 SCM 150 at 153 and 166, ISMAIL vs. THE STATE (2011) 10 SCM 35 at 39 and DAGAYYA vs. THE STATE (2006) 2 SCM 33 at 67 were called in aid.

RESOLUTION OF THE ISSUE
This issue interrogates the decision arrived at in the trial within trial wherein the lower Court dismissed the Appellant’s objection to the admissibility of his confessional statement, and having held that the statement was voluntarily made, admitted the same in evidence as Exhibit

The proceedings at the trial within trial is at pages 104-108 of the Records, while the Ruling of the lower Court thereon is at pages 108-110 of the Records.Now, in criminal trials, the Prosecution has the onus of establishing the offence charged against an accused person beyond reasonable doubt. The easiest way to accomplish this and solve the crime is to get a confession. This is so because Section 28 of the Evidence Act, 2011, defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See AKINRINLOLA vs. THE STATE (2016) LPELR (40641) 1 at 8-9, MUHAMMAD vs. THE STATE (2017) LPELR (42098) 1 at 16 and SULE vs. THE STATE (2017) LPELR (47016) 1 at 27. Furthermore, a free and voluntary confession of guilt made by an accused person, if direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied as to the truth of the confession. See JOHN vs. THE STATE (2017) LPELR (48039) 1 at 56, YESUFU vs. THE STATE (1976) 6 SC 167 at 163, IDOWU vs. THE STATE (2000) 7 SC (PT 11) 50 at 62 and NSOFOR vs. THE STATE

(2004) 18 NWLR (PT 905) 292.

This being so, the law has laid down requirements to govern the obtaining of extra-judicial statements in order to ensure that the statements are made voluntarily.
The word “voluntary” is not defined in the Evidence Act. However, Section 29 (2) of the Evidence Act is a guide as to when a confession is not voluntary. By the said Section, any confession obtained by oppression or in consequence of anything said or done, which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, shall not be allowed to be given in evidence, unless, the prosecution proves beyond reasonable doubt that the confession was not obtained in a manner contrary to the provisions of the said Section 29. Section 29 (5) then defines oppression as including torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
Generally, a confessional statement will not be admissible if it is obtained by oppression; the statement of an accused person must be free and voluntary. A statement obtained from an

accused person who has been threatened or otherwise violently dealt with cannot be admissible in evidence. The same is also true of a confession obtained through coercion, and coercion can be mental as well as physical.

When an accused person challenges the admissibility of his confessional statement on the ground that it was not voluntarily made, a trial within trial or voir dire (mini trial) must be conducted at nisi prius to ascertain the voluntariness of the statement. See BABARINDE vs. THE STATE (2014) 3 NWLR (PT 1395) 568, LATEEF vs. FRN (2010) 37 WRN 85 at 107 and GBADAMOSI vs. THE STATE (1992) 9 NWLR (PT 266) 465.

In a voir dire, the onus is on the Prosecution to prove that the confessional statement was voluntarily made. See THE STATE vs. OBOBOLO (2017) LPELR (48405) 1 at 31-34, EFFIONG vs. THE STATE (1998) 5 SCNJ 158 and IHUEBEKA vs. THE STATE (2000) 4 SC (PT 1) 203. This onus never shifts. See NSOFOR vs. THE STATE (2005) ALL FWLR (PT 242) 397. In discharging the onus imposed on the Prosecution by law, the sole prosecution witness in the voir dire testified as to how the Appellant volunteered his statement in an open space, a small hall while

seated comfortably, and that there were other officers and civilians present. He maintained that the Appellant narrated his story voluntarily and that he was neither beaten, tortured, nor was the statement taken under duress. See pages 104-105 of the Records. The testimony of the witness remained unshaken under cross examination.

Even though the objection that necessitated the voir dire is that the statement was obtained under duress as the Appellant was beaten, the Appellant in his testimony in the voir dire discloses the assertion that he did not make any statement as he was unable to answer the questions he was being asked by the Police as a result of the beating he received as a consequence of which the Police wrote a statement and that he did not know what was written in the statement, but that he had to sign the statement after he had been threatened with a gun. (See pages 105-106 of the Records). This testimony clearly raises the issue of non est factum. The law is clear, that objection to a statement on the basis of non est factum does not affect the admissibility of the statement since it is a question of fact to be determined at the conclusion

of the trial. See AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860) 367 at 402 and MADJEMU vs. THE STATE (2001) 25 WRN 1 at 12 – 13, 23 and 25.
The testimony of the Appellant that he did not make the statement amounts to resiling or retracting from the statement which the sole Prosecution witness testified was made voluntarily. The law seems settled that the retraction of or resiling from a confessional statement or the denial by an accused person that he did not make the statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. STATE (2001) 14 WRN 1 at 20 and KAREEM vs. FEDERAL REPUBLIC OF NIGERIA (2001) 49 WRN 97 at 111.

Howbeit, the Appellant has faulted the reasoning of the lower Court that it did not believe the Appellant’s testimony that he did not volunteer any statement because the statement contained intimate family facts of the Appellant which the prosecution witness in the voir dire would not have known about. It is the submission of the Appellant that such intimate family facts could have been taken from the statement he made at Ajuwon Police Station which was in the case file that was

transferred to State CID.

I am unable to accept the Appellant’s invitation to speculate that the intimate family facts about the Appellant could have been extracted from the case file from Ajuwon Police Station. This is especially so in the light of the evidence on record where the prosecution witness in the voir dire was categorical that he did not read the statement the Appellant made at Ajuwon Police Station. Under cross examination at page 105 of the Records, the witness stated:-
“I did not read the statement 1st accused (Appellant) made at Ajuwon Police Station as 1st accused briefed me of his own side of the story.”

Like all Courts, this Court is a Court of facts and laws, and decides issues on the facts established before it without engaging in speculation. In the light of the established fact on the evidence that the prosecution witness in the voir dire did not read the statement the Appellant made at Ajuwon Police Station, but was briefed by the Appellant on the statement he recorded, I am unable to agree with the Appellant that the intimate family facts in the statement, which swayed the lower Court into holding that it was only the Appellant that could have volunteered those facts, were taken from the statement which the Appellant made at Ajuwon Police Station. That will be speculative and a mere conjecture which in the light of the evidence on record, the Court is not to engage in.

The Appellant further challenged the decision of the lower Court on the basis that the lower Court did not compare the signature of the Appellant on the statement as provided under Section 101 of the Evidence Act, before holding that the Appellant’s signature on the statement was regular. Now, it is an established principle of law arising from the logic of

reasoning that where there has been a misconception as to the decision reached or arrived at by a Court in a matter, any argument flowing from that misconception will no doubt be fallacious since it will be based on a wrong premise: UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 152 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT 1) 159 at 169.
This is what the lower Court found and held in this regard at page 110 of the Record:
“I have looked at the statement sought to be tendered. The signature of the 1st accused therein is very regular and if the 1st accused was in such a state if (sic) trauma as he has described his signature would not be that regular as his physical and mental frame of mind would not occasion such a regular signature.”
It has to be remembered that the issue in the voir dire was whether the prosecution proved, beyond reasonable doubt, that the statement was made voluntarily, or whether as contended by the Appellant he was beaten and threatened with a gun before he signed the statement. There was no issue as to whether the Appellant signed the statement or whether the signature was forged. The Appellant admitted

signing the statement but only contended that he signed after he had been beaten and threatened with a gun. The situation envisaged under Section 101 of the Evidence Act, where the Court can engage in comparison of signature is where there is a dispute as whether the signature was actually signed by the person whose signature it is purported to be. That is definitely not the situation in this matter and the Appellant’s invocation of Section 101 of the Evidence Act is therefore inutile and otiose. In simple terms, what the lower Court held in the extract from the decision set out above is that someone who had undergone the trauma the Appellant presented that he went through, would not have the physical and mental frame of mind to sign a signature as regularly as was done in the statement. It did not require the lower Court applying Section 101 of the Evidence Act to make that finding since it is based on physical and mental frame of mind and not consistency in the signature. The misconception by the Appellant of the finding and decision of the lower Court in this regard makes the Appellant’s contention non-sequitur.

The Appellant’s argument that the prosecution failed to call any of the persons who were said to be present when the Appellant volunteered his statement to testify in the voir dire cannot fly. This is on account of the fact that it is settled law that it is the quality of evidence that is adduced that matters and not the quantity. There is no obligation on the prosecution to call a host of witness. All that is required is for the prosecution to call enough material witnesses to prove its case. Indeed, the testimony of a sole credible witness which is qualitative to establish the case beyond reasonable doubt as required by Section 135 of the Evidence Act would suffice. See OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 25-26, AYENI vs. THE STATE (2016) LPELR (40105) 1 at 27, SUNDAY vs. THE STATE (2017) LPELR (42259) 1 at 25-26 and ODILI vs. THE STATE (1977) LPELR (2221) 1 at 10.

The Appellant further latched on to the fact that it is stated in the statement, Exhibit C, that he could not write the statement because he has wound in his hands as showing that he was assaulted and injured in Police custody. Once again, the Court acts on evidence and not speculation and

conjecture. The testimony of the Appellant is that he had been injured from Ajuwon Police Station before he was taken to State CID, as a result of which he did not make any statement because “there were many injuries”. See pages 105-106 of the Records. I iterate that this raises the question of non est factum and does not go to the admissibility of the statement in evidence as it is a question of fact that will be determined at the conclusion of the trial. See R vs. IGWE (1960) 5 FSC 55 or (1960) SCNLR 158 and EHOT vs. THE STATE (1993) 5 SCNJ 65. Furthermore, the retraction of, or the resiling from the statement by the Appellant does not make the statement inadmissible: OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39 and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 383 at 341.

In a coda, this issue is resolved against the Appellant. The lower Court was right to dismiss the Appellant’s objection to the admissibility of the confessional statement made by the Appellant and was correct and justified to admit the same in evidence after the voir dire.

ISSUE NUMBER TWO
Whether from the totality of evidence adduced at the

trial, the prosecution has proven the offence of Conspiracy of Commit Armed Robbery and Armed robbery against the Appellant beyond reasonable doubt.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that neither of the PW1-PW3 identified the Appellant as one of the robbers as a result of which their testimony did not corroborate the Appellant’s extra-judicial statement, as held by the lower Court. The evidence on record was said to be that the armed robbers were three, one of who wore a mask and was not arrested. That only the 2nd and 3rd accused persons were identified by the prosecution witnesses as being among the robbers. It was opined that even the extra-judicial statements of the other accused persons did not put the Appellant at the scene of the crime. The Court was urged to look at the extra-judicial statements made at Ajuwon Police Station, which though not tendered in evidence, forms part of the Records of the Court; since a Court can look at the documents in its file in order to reach a fair decision. The case of WEST AFRICAN PROVINCIAL INS. CO. LTD vs. NIGERIAN TOBACCO LTD (1987) 2 NWLR (PT 56) 299 was relied upon

The Appellant contended that there were contradictions in the extra-judicial statements made by the accused persons at Ajuwon Police Station and at the State CID; yet the lower Court found corroboration in the said contradictory and unreliable statements. It was stated that the material contradictions and other exculpatory pieces of evidence rendered the decision of the lower Court unsupportable. The case of GABRIEL vs. THE STATE (1989) 5 NWLR (PT 122) 457 was referred to on the meaning of contradiction and it was asserted that the contradictions were material and would vitiate the conviction vide SELE vs. THE STATE (1993) 1 NWLR (PT 269) 276 or (1993) 1 SCNJ 13 at 22-23. In concluding his argument on his issue number two, the Appellant stated that the evidence on which the lower Court convicted was not such on which based on the process of analytical reasoning, an inference as to guilt could be drawn. The cases of NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 and NWOSU vs. THE STATE (1986) 4 NWLR (PT 35) 348 at 359 were cited in support.

The conspectus of the Appellant’s submission on his issue number three is that the prosecution did

not prove its case beyond reasonable doubt as required by Section 135 of the Evidence Act. The lower Court, it was maintained, was wrong in holding that PW1 & PW2 identified the Appellant, alongside the other two accused persons as the robbers and placed him at the scene of the crime. The cases of NWEZE vs. THE STATE (2017) LPELR – 42344 (SC) and ALABI vs. THE STATE (1993) 7 NWLR (PT 307) 511 at 531 were called in aid. It was asserted that the Respondent’s case at the lower Court hinged on the purported confessional statement of the Appellant, as none of the prosecution witnesses put him at the scene of the crime and that there was no evidence as to how the Appellant was arrested. The Appellant doubled down on his submission that, the lower Court having failed to make a finding on the contradiction in evidence or statement of witnesses and that it was sufficient to vitiate the conviction vide ATEJI vs. THE STATE (1976) 2 SC 79 at 93-94 and IBEH vs. THE STATE (1997) 1 NWLR (PT 484) 632 or (1997) 1 SCNJ 236. It was posited that in the light of the material discrepancies in the testimony of the prosecution, the evidence cannot be said to be

overwhelming. The case of OPAYEMI vs. THE STATE (1985) 2 NWLR (PT 5) 101 was referred to.

The Appellant maintained that since the extra-judicial statements of the accused persons were contradictory and irreconcilable, the lower Court was wrong to have treated the same as corroborative of the testimony of the PW1-PW3; relying on ONUBOGU vs. THE STATE (1974) 9 SC 1 at 20 or (1974) 4 ECSLR 403. It was stated that the doubt arising from the prosecution having failed to discharge the burden of proof ought to have resulted in an acquittal for the Appellant as the prosecution is not only to prove that there was an armed robbery, but furthermore, that the Appellant participated in the robbery. The cases of NJOKU vs. THE STATE (1993) NWLR [no volume stated] (PT 299) 272 and IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 455 at 481 were relied upon.

Arguing his issue number four, the Appellant states that the lower Court was wrong in convicting and sentencing in the absence of credible evidence that is worthy of belief vide EMEKA vs. IKPEAZU (2017) LPELR-49120 (SC) at 36. It was contended that mens rea is an essential element in conspiracy and so the prosecution

had to prove that the Appellant, by his action or conduct, evinced an intention to be party to an agreement to do an unlawful act. It was opined that the absence of evidence of the essential element of knowledge or intention to do an unlawful act was fatal. It was maintained that the quality of the prosecution evidence was not such that a conviction could be returned on it. The case of USIOBAIFO vs. USIOBAIFO (2005) LPELR – 3428 (SC) was cited in support. The elements to be proved in a charge of armed robbery were set out and it was asserted that the prosecution failed to prove that the Appellant was one of the robbers. The case of OKANLAWON vs. THE STATE (2015) LPELR–24838 (SC), BABARINDE vs. THE STATE (2013) LPELR–21896 (SC) and OLAYINKA vs. THE STATE (2007) 9 NWLR (PT 1040) 561 were referred to.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the onus on the prosecution is to prove the case beyond reasonable doubt, not beyond all shadow of doubt. The cases of ABIRIFON vs. THE STATE (2013) 9 SCM 1 at 5, MILLER vs. MINISTER OF PENSION (1947) 3 ALL ER 37, UGO vs. C.O.P. (1972) 11 SC 37, AMEH vs. THE STATE

(1978) 6-7 SC 27 and DIBIE vs. THE STATE (2007) SCM 101 at 118-119 were relied upon. The ingredients of the offence of armed robbery as laid down in AJAYI vs. THE STATE (2013) 3 SCM 1 at 25 were referred to and it was asserted that the prosecution evidence established the ingredients beyond reasonable doubt. It was stated that the evidence is that the 3rd accused person helped the Police to arrest the other culprits and that the Appellant in his confessional statement, Exhibit C, gave details of his role in the robbery and identified himself in the said confessional statement vide OSUAGWU vs. THE STATE (2013) 1 SCM 170 at 182.

It was contended that the fact that though none of the prosecution witnesses fixed the Appellant at the scene of crime; the Appellant in his confessional statement, Exhibit C, identified himself as having committed the offences charged, which confession is the strongest evidence. The case of ADEYEMI vs. THE STATE (2014) 11 SCM 1 was called in aid. It was consequently posited that in the circumstances, an identification parade was not necessary. The case of ADEBAYO vs. THE STATE (2014) 8 SCM at 55 was cited in support. It was

maintained that the prosecution evidence and the confessional statement, Exhibit C, established the offences charged beyond reasonable doubt.

On the count of conspiracy, the Respondent referred to the definition of conspiracy in Black’s Law Dictionary, 7th Edition, page 305 and the cases of BELLO vs. THE STATE (2010) 12 SCM (PT 2) 28 at 34 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) [no page stated], and submitted that the meeting of the minds of the Appellant and his accomplices was shown by the prosecution evidence and Exhibit C; and how they acted in concert. It was opined that even though the extra-judicial statement of a co-accused is not binding on another accused person, but that where there is a nexus between the contents of the statement of a co-accused and other independent evidence, then the rule as to inadmissibility of statement of co-accused against an accused person who did not admit the same gives way. The case of ADELEKE vs. THE STATE (2013) 12 SCM (PT 2) 1 at 21-22 was relied upon.

Without conceding that the Appellant was not one of the armed robbers, the Respondent posited that in his confessional statement, Exhibit C,

the Appellant stated that he engaged the 2nd and 3rd accused persons, who were identified by PW1-PW3 as the robbers, to commit the offence. Section 7(b), (c) and (d) of the Criminal Code Law of Ogun State was relied upon for the contention that the Appellant having enabled, aided, counselled and procured them, took part in the robbery. The cases of KOLAWOLE vs. THE STATE (2015) LPELR-24400 (SC) and NGUMA vs. A-G IMO STATE (2014) 3 SCM 137 were referred to.

APPELLANT’S REPLY ON LAW
The Appellant submits in his Reply Brief that the reliance by the Respondent on Sections 7(b), (c) and (d) of the Criminal Code Law of Ogun State to the effect that the Appellant procured, counselled and aided the other accused persons is inconsistent with its position at the lower Court, as well as the finding of the lower Court that the Appellant was among the robbers. It was stated that the Respondent is not permitted to deviate from its case and must be consistent in its argument that the Appellant was one of the robbers. The Respondent it was maintained could not be heard to change the complexion of its argument to now claim that the Appellant was rightly

convicted for having procured the robbers.

It was further asserted that the Appellant was not charged and convicted for procuring the armed robbers, but for actually participating in the armed robbery. It was stated that a party should be consistent in stating his case and consistent in proving it; and not take one stance at the trial Court and another stance on appeal vide PACERS MULTI-DYNAMICS LTD vs. THE M.V. DANCING SISTER (2012) LPELR – 7848 (SC). More so, when the Respondent cannot approbate and reprobate. The case of AKANINWO vs. NSIRIM (2008) ALL FWLR (PT 410) 610 at 663 was referred to. It was conclusively submitted that the persuasion of the guilt of the Appellant did not amount to such a moral certainty as to convince the minds of a tribunal as reasonable men, beyond reasonable doubt. The case of NWOSU vs. THE STATE (supra) at 35 or (1986) LPELR (2134) 1 at 21 was cited in support.

RESOLUTION
In précis terms, the facts of this matter as garnered for the Records show that on 3rd December 2006 at Alagbole Ogunlowo Street, Iju Ajuwon, Ogun State, when the power supply was restored at about 6.30am, the PW2 asked her younger

sister to go outside and put on the pumping machine. As she stepped outside to do so, three men, who lay in wait in the compound, accosted her and marched her into the house. The ensuing ruckus attracted the attention of the PW1, the father of the PW2, and the three men, one of whom wore a mask, robbed them of their belonging while armed with guns, cutlasses and knives. As the robbers escaped after the robbery, people in the neighbourhood gave them a chase. The 3rd accused person while escaping collided with the PW3 and they both fell down. The PW3 who had heard people shouting “thief, thief,”, held the 3rd accused on the ground until the people pursuing came and apprehended him and took him to the Police Station. It was through the 3rd accused that the 1st accused (Appellant) and 2nd accused persons were arrested and all three of them were subsequently charged to Court, tried and convicted.

The Appellant has forcefully argued that the offences charged were not proved beyond reasonable doubt as the prosecution evidence did not identify him as one of the robbers. From the submissions of learned counsel, it is apparent that the disceptation in

this appeal falls within a very narrow compass. The simple issues are whether the Appellant should have been convicted on the charge of conspiracy and armed robbery based on the evidence on record. It is not contested that there was robbery. It is equally not contested that the robbery was an armed robbery as there is evidence on record that the robbers had guns, cutlasses and knives. The pertinent question is whether it was established on the evidence that the Appellant was one of the armed robbers.

In the submissions on the Appellant’s conviction on the count of conspiracy, it was argued that the necessary ingredients to prove a charge of conspiracy particularly the existence of an agreement to commit an offence and that in furtherance of the agreement the offence was committed were not established. In its judgment, the lower Court inferred the proof of the offence of conspiracy from the fact that the substantive offence of armed robbery charged was proved beyond reasonable doubt. See pages 151, 159 and 160 of the Records.

Now, conspiracy as an offence is the agreement by two (not being husband and wife) or more persons, to do or cause to be

done an illegal act or a legal act by illegal means. In HARUNA vs. STATE (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23–24, Fatayi-Williams, JSC (as he then was) stated as follows: –
“Conspiracy as an offence is nowhere defined in the Criminal Code… It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”
The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR vs. STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. F.R.N.

(2001) 53 WRN 20 at 54 and STATE vs. OSOBA (2004) 21 WRN 113.
Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See SULE vs. STATE (2009) 17 NWLR (PT 1169) 33 and ADEJOBI vs. STATE (2011) LPELR (97) 1 at 36. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See ODUNEYE vs. STATE (2001) 13 WRN 88.
Conspiracy to commit an offence is more often than not, hatched in secrecy, which makes it difficult to prove by direct and distinct evidence. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar were seen together coming out of the same place, as indeed they do not need to know each other to be

adjudged conspirators. It is enough that they have communicated at any point. Once there is a meeting of the mind, there is conspiracy and it is immaterial that one of the conspirators reneged, repented or developed cold feet. See OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 25, IBOJI vs. THE STATE (2016) 9 NWLR (PT 1517) 216, OSARENREN vs. FRN (2018) 10 NWLR (PT 1627) 221 and KOKU vs. THE STATE (2020) LPELR (49606) 1 at 24-27.

The lower Court clearly took cognisance of these principles when it not only duly considered the live issue on the count of armed robbery, id est, whether the offence was proved, and conclusively held at pages 159 and 160 of the Records that the accused persons themselves, including the Appellant, gave evidence of how they conspired to commit the offence of armed robbery in their confessional statements. I iterate that the general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See LAWSON vs. STATE (1975) 4 SC 115 at 123, AKANO vs. A-G BENDEL STATE (1988) 2

NWLR (PT 201) 232, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) 466. The lower Court inferred proof of the offence of conspiracy from the conviction of the Appellant for the substantive offence of armed robbery. The implication is that if the Appellant succeeds in his appeal against his conviction for armed robbery, then by parity of reasoning, the conviction for conspiracy will equally not stand, we will shortly find out if on the evidence the conviction of the Appellant on the count of armed robbery can stand.

1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identification of the person or

persons alleged to be the actual perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. This is at the pith of the disceptation in this matter as the contention of the Appellant is that he was not identified as one of the robbers, such that the lower Court was wrong in convicting and sentencing him.

The law is well settled on the conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery. They are:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the accused person was one of the armed robbers.
See BOZIN vs. THE STATE (1985) LPELR (799) 1 at 6, IKEMSON vs. THE STATE (1998) 1 ACLR 80 at 103 and OGOGOVIE vs. THE STATE (supra) at 10-11. Understandably, while the Appellant contends that the lower Court was in error to have held that the ingredients were established, the Respondent asserts that the decision of the lower Court was right since the guilt of the Appellant had been established by direct evidence and the confessional statement he made.

It is settled law that there are three ways

or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 8 NWLR (PT 1234) 209 at 236 and ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16. It seems that a fourth way or method was added by Odili, JSC in OGOGOVIE vs. THE STATE (supra) at 11, namely: “admission by conduct of the accused person/appellant.”

The Respondent contends that the charge against the Appellant was proved inter alia, by the confessional statement of the Appellant, Exhibit C. The Appellant on his part challenged the admissibility of the said confessional statement; I have already held in this judgment that the lower Court rightly admitted the Appellant’s confessional statement in evidence as Exhibit C, so it forms part of the prosecution evidence on record. Doubtless, it is trite law that a confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and

safest evidence on which to convict. See ADEBAYO vs. A – G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. A confessional statement in criminal law is a statement which admits of the crime.
Howbeit, the legal position is that a Court cannot act on the confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188–189, ALARAPE vs. THE STATE (supra) and OSENI vs. THE STATE (supra) at 387 to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in

the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated
3. The facts stated in the confession are true as far as can be tested
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.

The lower Court duly applied the requisite tests to ascertain the veracity of the confessional statement at pages 158-159 of the Records and held that the evidence of the PW1-3 corroborated the confessional statement.

Once again, there is no confutation that there was a robbery and that the robbery was an armed robbery. The linchpin of the Appellant’s contention is that he was not proved on the evidence to be one of the robbers and that the contradiction in the evidence as to who the third robber was, whether it was the masked robber, who was variously referred to as “HAJI, “AJI”, and “STEPHEN” in the evidence, or the Appellant. In his confessional

statement, Exhibit C, the Appellant, inter alia, stated as follows:
“I know one Stephen Idamesa as a friend of mine. Two weeks ago Stephen send a letter to me through Mama Jamiu that I should be expecting him in my house, when Stephen came to me, he told me that there was a man whom he have been working with for past one year and the man did not pay him. Stephen says further that the man have sent about 3.8 Million naira to his secretary that I should mobilize some boys with me to go and rob the Secretary. Then I called Emmanuel Samuel and Solomon Udokan to handle the job. I did not follow them but the operation was led by Stephen, during the operation one woman was wounded by Stephen Idamesa who is now at large.”

The above pericope is a confession by the Appellant that he procured the 2nd and 3rd accused persons at the lower Court and conspired with them to commit the offences charged. The fact that the offences charged was in fact committed affords the independent evidence authenticating the veracity of the statement. The involvement of the Appellant in the commission of the offences is not in any way affected by the Appellant having

further stated in his confessional statement as follows:
“Additional to my previous statement I hereby stated [sic] that I did not follow them to the operation because I did not meet up the appointment and they have left before I came.”
By the operation of Law, the Appellant is a principal offender and is liable as such. Section 6(a) and (b) of the Robbery and Firearms (Special Provisions) Act provides as follows
“6. Any person who-
(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3, or4of this Act; 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.”
See ADEKOYA vs. THE STATE (2017) LPELR (41564) 1 at 18 and ODEWOLE vs. THE STATE (2021) LPELR (52833) 1 at 24.
The Appellant makes a foofaraw of the Respondent’s submission that he was rightly

convicted as a principal offender, contending that the case made out by the Respondent at the lower Court and the finding of the lower Court is that he was one of the robbers who were at the locus criminis. This contention would however not afford the Appellant an escape route. This is an account of the fact that by Section 6 of the Robbery and Firearms (Special Provisions) Act, he is a principal offender and shall be liable to be convicted as one of the robbers, irrespective of the fact that he was not present when the offence was committed. So the operation of law supplied the third ingredient of the offence of armed robbery, id est, that the Appellant was one of the robbers.

Let me hasten to state that the fact that the offences charged were not brought pursuant to Section 6 (a) and (b) of the Robbery and Firearms (Special Provisions) Act is not fatal to the conviction. It is trite law that if the facts on which an appellant was convicted are known to law, the fact that the Appellant was charged under a wrong law or Section of the law will not lead to his acquittal. See DOKUBO-ASARI vs. FRN (2007) 5-6 SC 150, MOHAMMED vs. THE STATE (2007) 7 NWLR (PT

1032) 152, OLATUNBOSUN vs. THE STATE (2013) LPELR (20939) 1 at 32, ADONIKE vs. THE STATE (2015) LPELR (24281) 1 at 22, OYEM vs. FRN (2019) LPELR (47392) 1 at 20-21 and NGBEDE vs. NIGERIA ARMY (2020) LPELR (50514) 1 at 68-70. The Appellant was therefore rightly convicted since the ingredient of the offence charged was established beyond reasonable doubt.

After having insightfully considered the Records of Appeal and the submissions of learned Counsel, I am satisfied that from the available evidence the lower Court rightly arrived at a finding of guilt. The evidence adduced proved that there was a robbery; that the robbery was an armed robbery and that based on the operation of law, the Appellant who admitted to having procured the robbers in his confessional statement, was one of the robbers; whether he was present at the locus criminis or not, and indeed, irrespective of whether he chickened out and deliberately “did not meet up the appointment” as he put it in his confessional statement. These are the necessary ingredients to establish in a count of armed robbery: BOZIN vs. STATE (supra), ALABI vs. STATE (1993) 7 NWLR (PT 307) 511 at 523 and

OKEKE vs. STATE (1995) 4 NWLR (PT 392) 676 at 707 & 709. Since the lower Court had held on the evidence that the commission of the substantive offence was proved, the lower Court was justified to have inferred the common criminal design necessary to convict for conspiracy, from the proven commission of the substantive offence, since conspiracy is seldom proved by direct evidence.

Consequently, I make bold to hold that the decision of the lower Court was based on analytical reasoning which attracts confidence. It is predicated on logical thinking and based on cogent and admissible evidence in which the facts leading to the conviction of the Appellant are clearly found and legal inference carefully drawn. In the circumstances, the persuasion of guilt amounted to a moral certainty that satisfied the standard of proof beyond reasonable doubt: NDIDI vs. THE STATE (supra), NWOSU vs. THE STATE (supra) and EBRI vs. THE STATE (2004) 11 NWLR (PT 885) 589 at 605. Indubitably, this issue is resolved against the Appellant.

The terminus for this judgment is in sight. The issues for determination have been resolved against the Appellant. This signposts that the

appeal is totally devoid of merit. The appeal therefore fails and it is accordingly dismissed. The decision of the lower Court is consequently affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered.
My Lord’s analysis and conclusion in this Appeal is detailed. I have nothing to add.

Having also read the Record of Appeal and the Briefs of Argument filed by the parties, the inevitable conclusion I arrived at is that the Appellant committed the offences for which he was charged and convicted. The Learned Trial Judge was right in convicting him.
The Appeal lacks merit and it is dismissed by me.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with the reasoning and conclusion reached therein.

It is trite that conspiracy to commit an offence, is a separate and distinct offence independent of the actual offence to which the conspiracy is related. An offence of

conspiracy is committed where persons have acted either by an agreement or in concert. Bare agreement to commit an offence is sufficient. The actual commission of the offence is not one of the essential ingredients of the offence. The most important thing is for the accused to have the intention and be in the know of the purpose of the criminal conspiracy. See EGBA VS STATE (2019) 15 NWLR (PT. 1695)201: NDOZIE VS STATE (2016) 8 NWLR (PT. YUSUF VS. FEDERAL OF NIGERIA (2018) 8 (PT. 1622)502.

In the instant appeal, the Appellant made a confessional statement to the Police which was admitted in evidence as Exhibit C. In the lead Judgment, my learned brother made reference to excerpts from Exhibit C wherein the Appellant admitted meeting with one Stephen Idemesa during which they hatched the plan to mobilise boys to rob the victim. He took steps to recruit other members of the robbery gang. It was thus established that the Appellant conspired with others to commit the offence of armed robbery.
The trial Court was therefore right when he convicted the appellant for the offence of conspiracy.

It is for the foregoing and the more detailed reasons

contained in the lead judgment that I too dismiss this appeal. The conviction and sentence of the Appellant is also affirmed by me.

Appearances:

Mrs. Obiageli Benson (holding the brief of Mazi Afam Osigwe, SAN)For Appellant(s)

Mrs. R. B., Director, Law Development & Library Services, Ministry of Justice Ogun State For Respondent(s)