LawCare Nigeria

Nigeria Legal Information & Law Reports

ALIYU v. STATE (2022)

ALIYU v. STATE

(2022)LCN/16196(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/YL/25C/2021

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

ABDULRAHIM ALIYU APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

The law is trite that, on account of the constitutional presumption of innocence in favour of any Defendant/Accused person the prosecution is duty bound to prove the guilt of such accused person beyond reasonable doubt, see Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 135 (1) of the Evidence Act, 2011 respectively.

In discharging this burden, the prosecution can establish the guilt of the Appellant through any of a combination of the following means (i.e) the confessional statement of the accused person, circumstantial evidence or evidence of any eye witness. In ABDULLAHI IBRAHIM Vs. STATE (2014) 3 NWLR (Pt. 1394) 305 at 338 paragraphs D–E the Supreme Court, Per Ariwoola, J.S.C restated the legal position thus:-
“The law is trite that in criminal trials, the guilt of an accused person could be established by any or all of the followings:-
a. The confessional statement of the accused;
b. Circumstantial evidence and
c. Evidence of an eye-witness.

See also the same principles in, DURU Vs. THE STATE (2017) 4 NWLR (Pt. 1554) 1 at 24 Paras. F–H, per Ariwoola, JSC, EMEKA Vs. THE STATE (2001) 14 NWLR (PT. 734) 666 at 683, ADIO Vs. THE STATE (1986) 2 NWLR (Pt. 24) 581 at 593-954 Paras. F–H.  PER ABUBAKAR, J.C.A.

THE DUTY OF THE TRIAL COURT IN CRIMINAL MATTERS
It is also trite law that the trial Court was under a legal duty to admit and act only on evidence that is admissible under the evidence act or any relevant enactment. Consequently, where inadmissible evidence was inadvertently or improperly received in evidence with or without objection, the trial Court was under a duty when considering its judgment to expunge such evidence and decide on legally admissible evidence. See IKANKIA Vs. MAI GEMU (2003) 6 NWLR (Pt. 817) 496 at 578–579 Paras. G–B, SHANU Vs. AFRIBANK NIG. Plc (2002) 7 NWLR (Pt. 795) 185 at 221–222; SHITU Vs. FASHAWE (2005) 14 NWLR (Pt. (46) 671 at 690 Paras. E–G, OKORO Vs. THE STATE (1998) 12 SCNJ 84 at 96.

​It is submitted that, the onus on the Respondent in proving the guilt of the Appellant including two at large before the trial Court beyond reasonable doubt, does not mean proof beyond all shadow of doubt, it simply means establishing the guilt of the Appellant with compelling and conclusive evidence.

In SMART Vs. THE STATE (Supra) at page 479 paras. H–B, the Supreme Court per Rhodes-Vivour J.S.C Stated:
“In NWATURUOCHA Vs. STATE (2011) 6 NWLR (Pt. 1242) 170, I explained proof beyond doubt thus;
Proof beyond reasonable doubt does not mean proof beyond all doubt, it simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability”.

The burden to prove criminal case beyond reasonable doubt is discharged, when the prosecution proves the ingredient of the charges beyond reasonable doubt. See also, THE STATE Vs. EKANEM (Supra) at page 105 paras. E–F, AKALEZI Vs. THE STATE (1993) 2 NWLR (Pt. 273) 1 at 13 Per OGBWUEGBU J. S. C, EBEINWE Vs. THE STATE (2011) 7 NWLR (Pt. 1246) 402.
PER ABUBAKAR, J.C.A.

THE POSITION OF LAW ON ESTABLISHING THE GUILT OF AN ACCUSED PERSON

In ABDULLAHI Vs. THE STATE (2014) 3 NWLR (Pt. 1394) 305 at 338 Paras. D–E, the Supreme Court, per Ariwoola, JSC restated the legal position thus:
“The law is trite that in criminal of an accused person for the commission of an offence could be established by any or all of the followings:-
a. The confessional statement of the accused;
b. Circumstantial evidence and
c. Evidence of an eye-witness”

It is also trite law that the trial Court was under a legal duty to admit and act only on evidence that is admissible under the Evidence Act, or any relevant enactment, consequently, where inadmissible evidence was inadvertently or improperly received in evidence with or without any objection, the trial Court was under a duty, when considering its judgment to expunge such evidence and decide only on legally admissible evidence as in the instant case, as rightly held by the learned trial Judge judicially and judiciously in the well-considered/excellent and brilliant judgment.  PER ABUBAKAR, J.C.A.

THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

 It is trite law, that the offence of Armed Robbery can be established by proof of the under listed elements namely;
a. That there was a robbery or series of robberies;
b. Each or any of the robbers was armed at the time of robbery operation and
c. That the accused was one of the robbery operation.
See BOZIN Vs. THE STATE (1985) 2 NWLR (Pt. 8) 465 at 467, SORBOR Vs. THE STATE (2001) FWLR (Pt. 78) 1077 at 1000.

The above principle was observed by the Supreme Court in AKWUOBI Vs. STATE (2016) LPELR–41389 (SC) Per Amiru Sanusi, JSC (P. 30, paras. A–D).  PER ABUBAKAR, J.C.A.

MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Adamawa State High Court of Justice, Yola delivered on 1/8/2019 by Hon. Justice A. A. Waziri wherein after a trial for the offences of conspiracy to commit Armed Robbery while Armed with offensive weapons punishable under Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap R 11 Laws of the Federation of Nigeria, 2004, Robbery while Armed with offensive weapons punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provision) Act Cap R 11 Laws of the Federation of Nigeria 2004 and illegal possession of firearms contrary to Section 5 (3) of the Firearms (Special Provision) Act Cap R 11 Laws of the Federation of Nigeria 2004.

​These three (3) count charges were read and explained to the Appellant (then Accused) and he denied the allegation. In an effort to prove their case, the Respondent called a total of five (5) witnesses namely, PW 1, PW 2, PW 3, PW 4 and PW 5 respectively and tendered Exhibits A and A1. The Appellant testified for his defence (as DW3) and called two other witnesses to testify on his behalf and DW1 and DW2 and closed his case. At the close of the trial, the trial Court delivered judgment and convict the Appellant for all the charges against him. Dissatisfied with the decision, the Appellant appealed to this Court.

The background facts are that the Appellant and two others at large, on or before the 31/12/2015 at Modire in Yolde Pate ward of Yola South Local Government of the State, agreed and did an illegal act to wit; forcefully disposed one Mohammed Umar of his movable properties, while armed with offensive weapons, such as dane gun and cutlasses, they invaded the premises being occupied by the said Mohammed Umar while so armed and that the said act was in furtherance of the agreement, while armed with offensive weapons.

During the hearing of the appeal on 11/5/2022, the learned Counsel to the Appellant adopted the Appellant’s Brief of Argument filed on 11/2/2022 and duly deemed as properly filed and served on 11/5/2022 as representing his argument for the appeal. The Respondent also adopted their Brief of Argument filed on 24/12/2021 and deemed on 11/5/2022.

​In the Appellant’s Brief of Argument, the learned Counsel for the Appellant formulated two (2) issues for determination to wit:
(a) Whether the Appellant can be tried and convicted for the offence of conspiracy alone without any evidence to support the conviction as the other co-conspirators names were never mentioned by all the Respondent’s witnesses and whether the conviction of the Appellant can be sustained considering the way and manner the case was conducted and the evidence adduced before the Court.
(b) Whether the conviction of the Appellant can be sustained having regard to the material contradictions of the evidence of PW 3, PW 4, and PW 5 with a romance of Exhibits A–A1 respectively.

The learned Counsel to the Respondent in his Brief of Argument formulated a sole issue for determination from the Grounds of Appeal filed by the Appellant as follows:-
“Whether the trial Court was right when it convicted the Appellant and by reaching its conclusion that the Respondent had discharged the burden placed on her beyond reasonable doubt by cogent and compelling evidences (distilled from ground 1 of the previous Notice of Appeal and additional two (2) notice and Grounds of Appeal dated and file on same 30/11/2021).”

It should be noted that the above mentioned issues for determination formulated by the learned Counsels to both Appellant and the Respondent are identical in substance as they raised the issue of burden of proof by the prosecution.

Consequently, I merged all the issues raised and reframed them in a sole issue for determination as follows:
“Whether from the totality of the evidence adduced in Court, the Appellant ought to be found guilty of the offences charged against him”

The learned Counsel to the Appellant in his Brief of Argument submit on issue one i.e
“Whether the Appellant can be tried and convicted for the offence of conspiracy alone without any evidence to support the conviction as the other Co-conspirators names were never mentioned by the Respondent’s witnesses and whether the conviction of the Appellant can be sustained considering the way and manner the case was conducted and the evidence adduced before the Court”.

​That the answer to the above issue one herein raised for determination is in the negative. An Accused person cannot be tried and convicted alone for the offence of conspiracy when there is no evidence on record to support the conviction even though the other co-conspirators are at large and the conviction of the Appellant cannot be sustained as same was done in error and this Court in its wisdom will not allow such an error to be used as precedent.

The law is well settled that “Conspiracy, without more, is always taken to be an agreement entered by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act or to do or commit an act which, per se, legal/lawful through an illegal/unlawful means”. The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act, or do or commit a lawful act by unlawful/illegal means. This was the decision of the Supreme Court in the case of OGUNDARE OJO PETER Vs. THE STATE (2018) LPELR-44357 (SC).

The learned Counsel invite this Court to holistically browse through pages 32–34 of the printed record of proceedings wherein, the Court would see that the Appellant by the particulars of offence of counts one on or about the 31st day December 2015 at Modire Yolde Parte agreed with Sule and Ahmadu (now at large) to do an illegal act to wit to forcefully disposes Mohammed Umar of his moveable properties while armed with offensive weapons such as Dane Gun and cutlass.

It is argued that the said Sule and Ahmadu the supposedly Co-conspirators were never mentioned by any of the Respondent’s witnesses and the question arises as to where did the Respondent got the names Sule and Ahmadu as contained in the Charges sheet?

The law is settled that an Accused person can be convicted for the offences of conspiracy when the other Co-conspirators are at large and there is evidence on record to support the convict. The Respondent is required by law to give evidence through his witnesses to establish details of the other persons at large – their names, particulars of a description or what they look like failure of which the conviction cannot stand. See the case of YUSUF Vs. FRN (2018) 8 NWLR (Pt. 1662) 502 at page 522 para. E where the Apex Court held thus:
“A person can be convicted of conspiracy with a Co-conspirators who is at large. All that is required is evidence on record to support the conviction”

The Counsel argued further that the names of the Co-conspirators must be stated by a competent witness, failure of which the conviction cannot stand as the Accused person cannot conspire with someone that is not known. It would amount to speculation when the names of the other persons at large were not mentioned by any of witnesses. It is settled the Court cannot speculate. See IKENTA BEST (NIG) LIMITED Vs. ATTORNEY GENERAL RIVERS STATE (2008) LPELR-1476 (SC).

Furthermore, PW 4 testified that the Appellant came to the said house with three (3) other people while PW 3 and PW 4 testified that the Appellant entered the house with two (2) other people which goes to establish that their evidence is contradictory on material facts and a Court cannot choose which evidence to believe and which not to believe amidst contradictions. The Counsel refer to the evidence of PW 3 where under cross-examination at page 81 second to the last paragraph lines 5 thereof which is hereunder reproduced:-
“I would know the number of persons outside because they were only two”

PW 4 contradicted the evidence of PW 3 thus at page 82 of the record wherein the PW 4 testified thus:-
“PW 4 – … I am a motorboy. Yes I know the accused person. What I know is that the Accused person entered our room at 1 A.M. (About Three of them) ….”

We have two different stories narrated by PW 3, PW 4 and PW 5; While PW 3 said the Accused was with two people, PW 4 testified in chief that the Accused was with 3 people and under the fire of cross-examination PW 4 testified that the Accused entered with two people. The law is settled that where there are two different stories to a fact in issue the Court cannot choose which to believe and which not to believe especially if no explanation is given and it creates doubt and same ought to be resolved in favour of the Accused person. To this end, this Court in the case of CHIEF ADISON ONYA & ORS. CHIEF GODWIN & ORS. (2009) LPELR-8508 (CA) rightly held thus:-
“And it’s a trite principle that where, as in the instant case, the evidence of two or more witness is evidently contradictory and irreconcilable, the Court cannot pick and choose which of them to believe …..”

The PW 3 stated that the Accused (Appellant) entered the said house with two other persons and the PW 4 testified in chief that the Accused (Appellant) entered the house with three other persons and under cross-examination testified that it was two people. Worthy of note also is that Exhibits ‘B and B1’ (see pages 59–64 of the record) are also contradictory while Exhibit B says the Co-conspirators were three (3) outside, Exhibit B1 states that the Co-conspirators were two (2) outside.

The question arises as to – Are there material contradictions in the evidence of PW 3, PW 4, PW 5 and Exhibits B and B1? If yes, is there doubt as to whether the Appellant was with anyone? Can the Court choose which version to believe and which not to believe? These contradictions are material and since there is no explanation given to clear same it should be resolved in favour of the Appellant.

This Court in the case of EKUMA Vs. STATE (2018) LPELR- 44633 (CA) rightly state the position of the law in respect of contradictory evidence thus:-
“As stated earlier, the Court cannot pick and choose which evidence to believe and is bound to reject them both. See Kayili Vs. Yilbuk & Ors. (2015) LPELR–24323 (SC), per Helen Moronkeji Ogunwumiji, JCA (Pp. 19 -19 Paras A–A).

It is submitted that on the strength of the argument canvassed above and the material contradiction of the evidence of PW 3, PW 4 and PW 5 as to the Co-conspirators, this Court is urge to reject the evidence given in respect of the Co-conspirators as there are two sides to the story and no explanations given to clarify same and a Court cannot choose which evidence to believe and which not to believe faced with two contradictory evidence. See MALLAM ZAKARI AHMED Vs. THE STATE (1999) LPELR–263 (SC) where it is held thus:
“It is trite law, where there are contradictions in the evidence of prosecution witnesses on a material fact, such contradictions ought to be explained by evidence by the prosecution. In the absence of such explanation by the prosecution, the Court cannot and shall not speculate on an imagined explanation such contradictions and proceed to choose which of the prosecution witnesses to believe? Per Mohammed, J.S.C. (P. 18, Paras, E – F).

The learned Counsel to the Appellant urge the Court to find and hold that there is no evidence on record to show that the Appellant conspired with people at large and since there is no evidence on record to sustain the conviction on conspiracy same should be set aside.

Under issue two (2), the learned Counsel to the Appellant submitted the Appellant by his plea denied the allegations levied against him and in his evidence in chief, the Appellant as DW 3 testified that he was never with any weapon.

He referred to the evidence of DW 3 at page 90 of the record of Appeal, last paragraph line 2 thus:
“… I was not caught with anything in my hand ….”

The Counsel submit further that the PW 3 in an effort to establish that the Appellant held a dane gun testified at page 80 especially lines 8, 9 and 10 thereof which same is reproduced:-
“… The Accused person told us to wake and bring money but I noticed that the Accused person was carrying a gun and he tight a torchlight to the gun …”

It is argued that for any gun to be tendered in evidence, it has to be one and the same thing as testified by PW 3 and in the absence of same it cannot be the gun and no similar gun can be tendered into evidence to be the gun PW 3 testified in respect of. Doubt is created in the mind of the Court if the gun that was tendered is not that as testified by PW 3 and same ought to be resolved in favour of the Appellant.

It is submitted further that proof beyond reasonable doubt entails in the case that a gun with a torch light tied to it must be tendered that the accused was caught with failure of which will mean that the prosecution failed to establish their claim of the Appellant been in possession of any weapon.

On issue of the offence of Armed Robbery, the Counsel submit that for the prosecution to secure a conviction, the law requires that the prosecution must establish the following as laid down by the Supreme Court in the case of MINDI Vs. STATE (2020) LPELR – 52897 (SC).
a. That there was a robbery;
b. That the robbers were armed with offensive weapon as at the time of the robbery; and
c. That the accused person participated in the robbery.

See Thomas Vs. State (2017) LPELR–41735 per Peter-Odili JSC at page 25; Yusuf Vs. State (2008) All FWLR (Pt. 405) 1731 per Mary Ukaego Peter-Odili, JSC (pp. 44-45 Paras D- D).

It is submitted that the story painted by PW 3, PW 4, and PW 5 are all different stories and are contradictory as to whether it was indeed a robbery. See PW 3 testified under cross-examination at page 81 of the record specially the 4th paragraph that:-
“The accused was searching the bag of one Danlami before I grabbed him. It is not correct to say that the Accused person picked a black bag and was going with it that I grabbed him ….”

The Counsel argued that PW 4 contradicted the evidence of PW 3 wherein PW 3 denied that the Appellant never picked a bag whereas PW 4 stated that the Appellant picked a bag. He referred to the evidence of PW 4 during cross-examination at page 82 of the record of proceedings thus:-
“……so he saw a bag and took it in the process my friend grabbed him and then hit with a Gun and also bite him……”

​The story given by PW 3, PW 4 and PW 5 are all different versions and they claimed that they were all at the scene of crime and caught the Appellant yet their story is at variance with each other on material facts and no Court of law will convict an Accused on three different stories with no explanation given. See the evidence of PW 3, PW 4 and PW 5.

The Counsel argued the 1st ingredient was never established before the trial Court as the evidence of PW 3, PW 4 and are all contradictions.

It has been established that the prosecution was not able to establish that the Appellant was with a Gun as the evidence of PW 3 and PW 4 is contradictory as to the gun and also Exhibits A–A1 also contradicted the evidence of PW 3 and PW 4. The Appellant indeed was not with any gun.

On the 3rd ingredient, that the accused person participated in the robbery, indeed the Appellant entered the house of PW 3 but it was to enquire about his route as he was drunk no wonder he was without a shoe see Exhibits B–B1 and the evidence of PW 3.

The Appellant is known to be a good man and has never stolen anything and has no record of theft. See the evidence of DW 1, DW 2 and DW 3 respectively.

​The Appellant came in peace and not to steal anything from PW 3, PW 4 and PW 5 and no wonder the Appellant was tied to a tree just like Jesus Christ and was beaten mercilessly and the Appellant as DW 3 showed the trial Court the wounds that was inflicted on him by PW 3, PW 4 and PW 5. See the judgment of the trial Court.

The Counsel urge this Court to resolve the two issues in favour of the Appellant. To allow the appeal and set aside the judgment and conviction of the Appellant considering the contradictory evidence of the Respondent’s witnesses and in so doing discharge and acquit the Appellant.

In reaction, the learned Counsel to the Respondent submit that from the totality of evidence adduced before the trial Court, the Appellant’s issue 1 in this appeal is of no moment and urge this Court to resolve issue 1 against the Appellant.

​He further submit that from the totality of evidence adduced before the trial Court the Appellant’s issue 1 in this appeal, is nothing but a misconception, misapplication and technicalities of law, and gone are the days when technicalities of law defeat or overreach the natural and substantive justice judicially and judiciously, and urge the Court that all the issues 1 and 2 canvassed and argued by the Appellant should be discountenance against the Appellant in the interest of justice and fair hearing.

The law is trite that, on account of the constitutional presumption of innocence in favour of any Defendant/Accused person the prosecution is duty bound to prove the guilt of such accused person beyond reasonable doubt, see Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 135 (1) of the Evidence Act, 2011 respectively.

In discharging this burden, the prosecution can establish the guilt of the Appellant through any of a combination of the following means (i.e) the confessional statement of the accused person, circumstantial evidence or evidence of any eye witness. In ABDULLAHI IBRAHIM Vs. STATE (2014) 3 NWLR (Pt. 1394) 305 at 338 paragraphs D–E the Supreme Court, Per Ariwoola, J.S.C restated the legal position thus:-
“The law is trite that in criminal trials, the guilt of an accused person could be established by any or all of the followings:-
a. The confessional statement of the accused;
b. Circumstantial evidence and
c. Evidence of an eye-witness.

See also the same principles in, DURU Vs. THE STATE (2017) 4 NWLR (Pt. 1554) 1 at 24 Paras. F–H, per Ariwoola, JSC, EMEKA Vs. THE STATE (2001) 14 NWLR (PT. 734) 666 at 683, ADIO Vs. THE STATE (1986) 2 NWLR (Pt. 24) 581 at 593-954 Paras. F–H.

It is also trite law that the trial Court was under a legal duty to admit and act only on evidence that is admissible under the evidence act or any relevant enactment. Consequently, where inadmissible evidence was inadvertently or improperly received in evidence with or without objection, the trial Court was under a duty when considering its judgment to expunge such evidence and decide on legally admissible evidence. See IKANKIA Vs. MAI GEMU (2003) 6 NWLR (Pt. 817) 496 at 578–579 Paras. G–B, SHANU Vs. AFRIBANK NIG. Plc (2002) 7 NWLR (Pt. 795) 185 at 221–222; SHITU Vs. FASHAWE (2005) 14 NWLR (Pt. (46) 671 at 690 Paras. E–G, OKORO Vs. THE STATE (1998) 12 SCNJ 84 at 96.

​It is submitted that, the onus on the Respondent in proving the guilt of the Appellant including two at large before the trial Court beyond reasonable doubt, does not mean proof beyond all shadow of doubt, it simply means establishing the guilt of the Appellant with compelling and conclusive evidence.

In SMART Vs. THE STATE (Supra) at page 479 paras. H–B, the Supreme Court per Rhodes-Vivour J.S.C Stated:
“In NWATURUOCHA Vs. STATE (2011) 6 NWLR (Pt. 1242) 170, I explained proof beyond doubt thus;
Proof beyond reasonable doubt does not mean proof beyond all doubt, it simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability”.

The burden to prove criminal case beyond reasonable doubt is discharged, when the prosecution proves the ingredient of the charges beyond reasonable doubt. See also, THE STATE Vs. EKANEM (Supra) at page 105 paras. E–F, AKALEZI Vs. THE STATE (1993) 2 NWLR (Pt. 273) 1 at 13 Per OGBWUEGBU J. S. C, EBEINWE Vs. THE STATE (2011) 7 NWLR (Pt. 1246) 402.

​It is submitted that, from the judicial decisions stated above amongst others, it is crystal clear that, the burden of proof on the prosecution to prove beyond all reasonable doubt was discharged legally speaking.

As submitted earlier, the burden of proof in criminal cases can be discharged through one or all combinations of the following means: the confession of the accused, or circumstantial evidence, or testimony of eye witness, it is submitted that PW 3 and PW 4 are the victims of the robbery attacked while armed with offensive weapons undisputedly as contains at pages 80–83 of the printed record.

It is clear that the learned Counsel of the Appellant misconceived the facts the whole facts of the case by raising the issue of not joining the Co-conspirators, it is on records the fact that the statements of PW 3 and PW 4 informed the trial Court that the other three were outside waiting and stand by for alert and corroborated by the said witnesses it sounds confusing for the Appellant’s Counsel to allege at this stage that, the Co-conspirators were not joint and never mentioned whatsoever it is not in contention they still remained at large till today.

It is therefore amusing/surprising at appellate stage, the learned Appellant’s Counsel contended in the Appellant’s brief of argument for clarity purpose contains at pages 8–10 (issue one).

Wherein the Appellant’s Counsel made an argument graciously, whom were never arraigned, and never for once attended the trial right from arraignment till judgment who remains (at large) for all intent and purposes and same principle was rightly held in AKWUOBI Vs. STATE (Supra) by Apex Court.

The Appellant’s Counsel cannot cry more than those at large that the trial Court, and did not in any way occasion miscarriage of justice judicially or judiciously merely because the name of those at large or Co-conspirators appeared on the charge sheet.

The Counsel submit that in the case of AKWUOBI Vs. STATE (2016) LPELR 41389 (SC) Per Amiru Sanusi, J. S. C. (delivering the lead judgment), solved the Appellant’s Counsel contentions on alleged trial in absentia legally speaking devoid of any legal technicalities to defeat the cause of natural justice and fair hearing, gone are the days when technicalities of law defeat caused of justice, certainly not in 21st century.

​The Appellant’s counsel is not appealing for those at large nor against the alleged wrongful exercise of discretion by the trial Court. To prefer amended charge against the Appellant in the instance case in all its ramification “Ab-Initio” and the trial Court graciously granted same, and the Appellant’s Counsel was present throughout the trial as such he cannot at this stage raise that issue as such is an afterthought and goes to no issue.

Still, the Appellant stated that by not including the Co-conspirators (now at large) occasioned miscarriage of justice, neither did he state in what manner or way.

​The Appellant’s Counsel cited the case of IKENTA BEST NIG. LIMITED Vs. ATTORNEY GENERAL RIVERS STATE (2008) LPELR–1476 (SC).

The absence of Co-conspirators (now at large) did not in any way or manner affect the finding of the trial Court as rightly held in the locus classicus case of AKWUOBI Vs. STATE (Supra) better still it did not occasion miscarriage of justice to the Appellant as misconceived.

The Counsel urged this Court to discountenance all the cases cited as submitted by the learned Counsel for the Appellant and resolve this issue in favour of the Respondent against the Appellant.

​On issue No. 2, the learned Counsel submit that in discharging the guilt of the Appellant through any or a combination of the following means. (i.e) the confessional statement of the accused persons. Circumstantial evidence or evidence of any eye-witness. In ABDULLAHI Vs. THE STATE (2014) 3 NWLR (Pt. 1394) 305 at 338 Paras. D–E, the Supreme Court, per Ariwoola, JSC restated the legal position thus:
“The law is trite that in criminal of an accused person for the commission of an offence could be established by any or all of the followings:-
a. The confessional statement of the accused;
b. Circumstantial evidence and
c. Evidence of an eye-witness”

It is also trite law that the trial Court was under a legal duty to admit and act only on evidence that is admissible under the Evidence Act, or any relevant enactment, consequently, where inadmissible evidence was inadvertently or improperly received in evidence with or without any objection, the trial Court was under a duty, when considering its judgment to expunge such evidence and decide only on legally admissible evidence as in the instant case, as rightly held by the learned trial Judge judicially and judiciously in the well-considered/excellent and brilliant judgment.

​It is submitted that, the onus on the Respondent in proving the guilt of the Appellant before the trial Court, beyond reasonable doubt, does not mean beyond all shadow of doubt, it simply means establishing the guilt of the Appellant with compelling and conclusive evidence. This was done by the prosecution/Respondent at the trial Court. He urged this Court to discountenance with the Appellant submission as same goes to no issue and speculative.

In SMART Vs. THE STATE (Supra) at page 479 paras. H–B, the Supreme Court per Rhodes-Vivour J.S.C Stated:
“In NWATURUOCHA Vs. STATE (2011) 6 NWLR (Pt. 1242) 170, I explained proof beyond doubt thus;
Proof beyond reasonable doubt does not mean proof beyond all doubt, it simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability”.

In the instant case, the prosecution called 5 (five) witnesses, and tendered 2 (two) Exhibits which comprises of the victims of the robbery and the IPO’s/investigators of the case, aside from the testimonies of PW 1–PW 5, which the trial Court convincingly believed to be cogent, direct, free, compelling and conclusive. The Appellant in Exhibit “A” and “A1” respectively which was tendered, corroborated by the testimonies of the prosecution witnesses (PW 3 and PW 4), admitted in evidence without any objection whatsoever from the defence Counsel throughout the trial, raising any objection whatsoever to the admissibility or otherwise of the said Exhibits and other testimonies/Exhibits at appellate is nothing but an afterthought which will have no effect whatsoever. In fact, Court of Appeal is a superior Court of records it deals strictly with printed Record of Appeal no more.

Furthermore, these requite evidence clearly fixed the Appellant to the Commission of the crime, as contained in pages 105–118 of the judgment. It is trite law, that the offence of Armed Robbery can be established by proof of the under listed elements namely;
a. That there was a robbery or series of robberies;
b. Each or any of the robbers was armed at the time of robbery operation and
c. That the accused was one of the robbery operation.
See BOZIN Vs. THE STATE (1985) 2 NWLR (Pt. 8) 465 at 467, SORBOR Vs. THE STATE (2001) FWLR (Pt. 78) 1077 at 1000.

The above principle was observed by the Supreme Court in AKWUOBI Vs. STATE (2016) LPELR–41389 (SC) Per Amiru Sanusi, JSC (P. 30, paras. A–D).

It is undisputed fact that there was robbery and the robbers were armed with offensive weapons at that material time of operation, in the instant case and the Appellant and Co-accused persons (one at large) committed the act, by community reading of testimonies of PW 1, PW 2, PW 3, PW 4 and PW 5 and Exhibits A and A1 respectively which is unchallenged by the Appellant at the trial Court, will leave on one in doubt that on the said fateful day there was robbery and the Appellant was one of the robbers that participated in the said robbery as was clearly set out by their evidence before the trial Court which remains firm, steady and unchallenged throughout the trial.

The learned Counsel submitted that the learned trial Judge, after diagnosing all the evidence rightly held that as contained at pages 114–118, paragraph 1 – to the end of the judgment of the printed record thus, paragraphs 1:
“and without any doubt in my mind, I found guilty on count 1 of the charge, and I hereby convict him accordingly. In the final analyses, the Accused person/Defendant is found guilty on the three count charges as sale have been proven beyond reasonable doubts. Consequently, fairly and legally you are convicted as charged….”

The Appellant’s Counsel alleged in his issue 2 that they were material contradiction and/or discrepancies in the prosecution witnesses/evidence in recounting dates of events which are just mere discrepancies and natural to all human being to perfect, and did not state in anyway how it affects the outcome of the case whatsoever. See the Apex Court cases of JOHN OGBU & ANOR Vs. THE STATE (2007) 2 SCNJ 319; GOLDEN DIBIE & ORS Vs. THE STATE (2007) 3 SNJC 160.

The learned Counsel argued that in the instant case, the trial Court was therefore right to rely on the said statements and other Exhibits clearly admitted by reference to the statements of the witnesses are convicting.

It is trite law, that however stupid a defence in criminal matter might be, it must be considered. See KIM Vs. THE STATE (1992) 4 NWLR (Pt. 233) 17, LAOYE Vs. STATE (1985) 2 NWLR (Pt. 10) 832.

It must be noted that it is not always easy to prove the actual agreement from the surrounding circumstances of each given case, and from those inferred circumstances it can safely presume the conspiracy. See GREGORY DABOH & ANOR Vs. THE STATE (1977) All NLR 143, (1977) LPELR 904.

Again it is well settled law that conspiracy may exist between persons who even had never known or seen each other or had corresponded or communicated with each other, in criminal conspiracy, it is not always necessary that the co-conspirators must know each other or that the accused persons had concocted the plan or modality of the execution of the subject matter of the plan or charge nor that they should have originated and organised it.

The learned Appellant’s Counsel placed heavy reliance on cases cited by him but interestingly those cases supported the Respondent case entirely. But in the instant case, neither the Appellant nor his Counsel bothered to object the admissibility of extra-judicial statements of all the prosecution witnesses nor to object best on any reason, in fact, the learned trial Judge has categorically done justice to this case judicially and judicially.

It is submitted that the discrepancies as to the dates not in any way destroyed the credibility of the witnesses. See the case of BONIFACE ADONIKE Vs. THE STATE (2015) 1 SCNJ Pg. 157 R. 24 where the Apex Court held thus:
“… the learned Counsel for the Appellant made much weather on issue of contradiction of prosecution witnesses on the date the offence was committed, in this case, the learned trial Judge held and was affirmed by the Court below that the piece of evidence of PW 2 that the offence occurred on the 2oth June, 2012, which she said was a Saturday instead of Sunday was a discrepancy and did not destroy the credibility of the PW 2, I have no reason to disagree with conclusion by the two Courts below on this issue”

​The Appellant’s Counsel did not/or could not controvert the testimonies of the prosecution witnesses during cross-examination in the light of the aforesaid. This Court is urged to accept and act upon the evidence of the Respondent/prosecution. This is the position of the Court of Appeal in the locus classicus case of SHAGARI Vs. C. O P (2007) 5 NWLR (Pt. 1027) Pg. 285 R. 12, when it stated thus:-
“Averments or evidence not countered, challenged or controverted ought to be accepted and acted upon by a Court, in the instant case, the depositions in the affidavit of the Appellants were not controverted and ought to have been considered, accepted and acted upon by the High Court and it should have allowed itself to be influenced by the same in exercising its discretion”.

The learned Counsel submitted that it is trite law, he who asserts must prove, this was the point made by the Court of Appeal in the case of NSEFIK Vs. MUNA (2007) 10 NWLR (Pt. 1043) pg. 506 R. 4, when it stated thus;
“the burden of proof rest with the party who asserts the positive and not on one who affirms the negative. The latin maxim “he who asserts must prove” operative thus: that a man cannot be expected to prove a negative probation “qui dicit non qui negat, cum per rerum naturam factum negates probation nulla sit, which means the proof lies upon him who affirms not upon him who denies since by the nature of things he who denies a fact cannot produce any proof”

The account of the constitutional presumption of innocence in favour of the accused person (as in the case of Defendants) under Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 135 (1) of the Evidence Act, 2011, the prosecution is under a legal duty of proving guilt of an accused person beyond reasonable doubt. In UHEM Vs. THE STATE (1973) S. C. at PAGES 12–13, the Supreme Court of Nigeria per Coker, JSC of blessed memory) reiterate this principle thus:-
“In a criminal case, the onus is on the prosecution to prove its case beyond all reasonable doubt. This principle is universally recognised as one of the plinths on which our criminal law is based”.

It is submitted however, that proof beyond reasonable doubt does not mean proof beyond all doubt, or shadow of doubt. As in the case of FRIDAY SMART Vs. THE STATE (2016) 9 NWLR (Pt. 1518) 447 at 479-480 Paras. G–B the Supreme Court per Rhodes Vivour, JSC explained the legal concept in the following terms: in NWATURUOCHA Vs. STATE (2011) 6 NWLR (Pt. 1242) P. 170.
“I explained proof beyond reasonable doubt thus: “proof beyond reasonable doubt does not mean establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a degree of probability”

The burden to prove a criminal offence beyond reasonable doubt is discharged when the prosecution proves the ingredient of the case beyond reasonable doubt. See also the cases of THE STATE Vs. EKANEM (2017) 4 NWLR (Pt. 1554) 85 at 105 PARAS. E–F, AKALEZI Vs. THE STATE (1993) 2 NWLR (Pt. 273) 1 at 13 per Ogbwuegbu J. S. C.

From the above decision of the Supreme Court in SMART Vs. STATE (Supra) it is crystal clear that the burden of proof on the prosecution to prove a criminal offence beyond reasonable doubt is discharged, when the prosecution proves the ingredient of the charge beyond reasonable doubt. Coincidentally, the Appellant’s Counsel did not/or could not controvert the testimonies of the Respondent’s witnesses during cross-examination in the light of the aforesaid.

​This Court is urged to accept and act upon the evidence of the prosecution. This is the position of the Court of Appeal in the locus classicus case of SHAGARI Vs. C. O P (2007) 5 NWLR (Pt. 1027) P. 285 R. 12 when is stated thus:-
“Averments or evidence not countered, challenged or controverted ought to be accepted and acted upon by a Court, in the instant case, the depositions in the affidavit of the Appellants were not controverted and ought to have been considered, accepted and acted upon by the High Court and it should have allowed itself to be influenced by the same in exercising its discretion”.

It is trite law, he who asserts must prove, this was the point made by the Court of Appeal in the case of NSEFIK Vs. MUNA (2007) 10 NWLR (Pt. 1043) P. 506 R. 4 when it stated thus
“the burden of proof rest with the party who asserts the positive and not on one who affirms the negative. The latin maxim “he who asserts must prove” operative thus: that a man cannot be expected to prove a negative probation “qui dicit non qui negat, cum per rerum naturam factum negates probation nulla sit, which means the proof lies upon him who affirms not upon him who denies since by the nature of things he who denies a fact cannot produce any proof”.

The account of the constitutional presumption of innocence in favour of the accused person (as in the case of Defendants) under Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 135 (1) of the Evidence Act, 2011, the prosecution is under a legal duty of proving guilt of an accused person beyond reasonable doubt. InUHEM Vs. THE STATE (1973) S. C. at PAGES 12–13, the Supreme Court of Nigeria per Coker, JSC of blessed memory) reiterate this principle thus:-
“In a criminal case, the onus is on the prosecution to prove its case beyond all reasonable doubt. This principle is universally recognised as one of the plinths on which our criminal law is based”.

It is submitted however, that proof beyond reasonable doubt does not mean proof beyond all doubt, or shadow of doubt. As in the case of FRIDAY SMART Vs. THE STATE (2016) 9 NWLR (Pt. 1518) 447 at 479-480 Paras. G–B the Supreme Court per Rhodes Vivour, JSC explained the legal concept in the following terms: in NWATURUOCHA Vs. STATE (2011) 6 NWLR (Pt. 1242) P. 170.
“I explained proof beyond reasonable doubt thus: “proof beyond reasonable doubt does not mean establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a degree of probability”

The burden to prove a criminal offence beyond reasonable doubt is discharged when the prosecution proves the ingredient of the case beyond reasonable doubt. The Counsel refer to the cases of THE STATE Vs. EKANEM (2017) 4 NWLR (Pt. 1554) 85 at 105 PARAS. E–F, AKALEZI Vs. THE STATE (1993) 2 NWLR (Pt. 273) 1 at 13 per Ogbwuegbu, J.S.C.

“From the above decision of the Supreme Court in SMART Vs. STATE (Supra) it is crystal clear that the burden of proof on the prosecution to prove a criminal offence beyond reasonable doubt is discharged, when the prosecution proves the ingredient of the charge beyond reasonable doubt.

The discrepancies, the learned Counsel to the Appellant contending, it is not material and did not goes to the root of the charge against the accused persons, The Apex Court held in the same case (Supra) at Ratio 25 as follows:-
“… for a contradiction to affect the case of the prosecution it must be material and the Defendant’s Counsel did not/or could not controvert the testimonies of the prosecution witnesses during cross-examination in the light of the aforesaid. The Counsel urged this Court to accept and act upon the evidence of the prosecution. This is the position of the Court of Appeal in the locus classicus case of SHAGARI Vs. C. O P (2007) 5 NWLR (Pt. 1027) P. 285 R. 12 when is stated thus:-
“Averments or evidence not countered, challenged or controverted ought to be accepted and acted upon by a Court, in the instant case, the depositions in the affidavit of the Appellants were not controverted and ought to have been considered, accepted and acted upon by the High Court and it should have allowed itself to be influenced by the same in exercising its discretion”.

On the issue of corroboration, during the course of the main trial, some of the prosecution witnesses e.g. PW 1 and PW 2 were able to identify the Defendant and how they had encounter with him, this goes to show that what the Defendant confessed is actually true.

​From the above decision of the Supreme Court in SMART Vs. STATE (Supra) it is crystal clear that the burden of proof on the prosecution to prove a criminal offence beyond reasonable doubt is discharged, when the prosecution proves the ingredient of the charge beyond reasonable doubt mandated but desired to tender items recovered in the course of the crime, and where it is in evidence that items stolen were disposed off and not recovered but that does not in anyway affect the substances of this case whatsoever as in the instant case, the Appellant Exhibits “A–A1” categorically stated the precise description of the weapon used in the commission of the crime.

The apex Court considered this contention in the case of SIMON Vs. THE STATE (2017) All FWLR (Pt. 887) 1929 at 1949, 1950 per Rhodes Vivour JSC where he said:
“… tendering recovered items from an armed robbery is desirably, but not mandatory, especially where there is damaging eye witness evidence that the Appellant was one of the armed robbers”.

​The Appellant contended lack of fair hearing without supporting same in evidence, it may interest the Honourable Court to know that, the accused/Appellant, was ably represented by same Counsel at the trial Court throughout, i.e one M. M. Tumba Esq. from arraignment to the judgment stage, when the plea was to be taken, the same Counsel did not complain whatsoever.

The law is trite, that however slight the defence linking the Defendant with the commission of the offence charged might be, the case ought to proceed for the Defendant to explain their own side of the matter on that position see the case of AGBO & ORS. Vs. STATE (2013) 4–5 SC (Pt. 41) at 15 paras. 20–15 Per J. A. Babiyi JSC:
“It has been held that however slight the defence linking an accused person with commission of an offence charged might be, the case ought to proceed for an accused person to explain his own side of the matter”.

In conclusion, the learned Counsel to the Respondent urged this Court to discountenance the submission of the Appellant’s Counsel as it lacks merit and dismiss this appeal and affirm the judgment of the lower Court delivered on 1/8/2019 in Suit No. ADSY/69C/2017.

RESOLUTION
The Supreme Court and this Court have held on number of occasions that proof beyond reasonable doubt doesn’t mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See the case of DIKE Vs. THE STATE (2022) NWLR (Pt. 1813) page 369, OKONJI Vs. STATE (1987) 1 NWLR (Pt. 52) 659.

In discharging the burden of proof, the prosecution can establish the guilt of the Appellant through any of the combination of the following means i.e the confessional statement of the accused person, circumstantial evidence or evidence of any eye witness. See OKIEMUTE Vs. STATE (2016) 260 LRCN 1 at Page 42–46, OSENI Vs. STATE (2012) 208 LRCN 151 at 185, AYO ADEGBITE Vs. STATE (2017) 71 NSCQR 270, EBEINWE Vs. STATE (2011) 45 NSCQR 1206–1226.

On the meaning of conspiracy, the Supreme Court has defined it to mean “the meeting of the minds of the conspirators. It consists of intention of two or more and agreement by them to do an unlawful act or to do lawful act by an unlawful means. Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such a quality that irresistibly compels the Court to make an inference as to the guilt of the accused”. See POSU Vs. STATE (2011) 45 NSCQR Pt. 11 Per S. Galadima, JSC at page 730; DAVID OYEDELE Vs. STATE (2019) 77 NSCQR 367, STATE Vs. SALAWU (2011) LPELR–8252 (SC) Pp. 38–39 paras. E–A.

It is settled law that the ingredient for the offence of armed robbery, which the prosecution must prove beyond reasonable doubt is that there was robbery or series of armed robbery, each robbery was an armed robbery and the Accused person was one of those who robbed or took part in the armed robbery. See UTTO Vs. STATE (2022) NWLR (Pt. 1814) pages 369–403, DIKE Vs. THE STATE (Supra), MOHAMMED Vs. STATE (2019) LPELR–46420 (SC), ADEKOYA Vs. STATE (2012) 209 LRCN Page 125 at 130 to 131 Ratio 5.

I have carefully perused the record of appeal and found that the Respondent in prove of his case called five (5) witnesses i.e PW 1, PW 2M, PW 3, PW 4 and PW 5 and also tendered Exhibits A and A1.

One of the grouse of the Appellant is that the Appellant was tried and convicted for the offence of conspiracy alone without any evidence to support the conviction as the other Co-conspirators’ names were never mentioned by the Respondent’s witnesses.
A careful perusal of the testimonies of PW 3 (Mohammed) at pages 80–83 of the Record of Appeal shows that the Appellant together with some other unknown persons went to their house around 1 a.m in the morning and attacked them while armed with a gun and matchet. The Appellant entered the room where PW 3 and PW 4 were sleeping and demanded money from them. The other unknown persons were outside the room keeping vigil. A struggle ensued between the PW 3 and the Appellant. The Appellant was overpowered and he was tied off with a rope by the PW 3 and PW 4 and later called for help from the vigilante group and the police.
Based on the above testimonies of the PW 3 and PW 4 which were never controverted during cross-examination, I agree with the findings of the trial Court that the prosecution has proved the offence of conspiracy beyond reasonable doubt by evidence of an eye witness. See pages 95–112 of the Record of Appeal. The absence of Co-conspirators (now at large) doesn’t occasion miscarriage of justice in any way.

Another grouse of the Appellant’s Counsel is that there exist material contradictions in the evidence of PW 3, PW 4, and PW 5 with a romance of Exhibits A – A1 respectively.

It should be stressed at this point that contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to the substance. It must touch on an element of the offence(s) charged. Trivial and miniature contradiction should not vitiate a trial. See SILAS SULE MOHAMMED Vs. STATE (2014) 58 Pt. NSCQR Per J. A Fabiyi, JSC at pages 1210–1211, GAMBO IDI Vs. STATE (2017) 70 NSCQR Pt. 4 Per C. B. Ogunbiyi JSC at 1888, JAMIU DAIRO Vs. STATE (2018) 73 NSCQR I, ODUNLAMI Vs. NIG. NAVY (2013) 54 NSCQR Pt. III.

I have carefully considered the testimonies of PW 3, PW 4 and PW 5 in the Record of Appeal and found that there is no material contradiction in their testimonies I agree with the submission of the Respondent Counsel on this issue.

​The prosecution in my view, has discharged the burden placed on it by the law and has proved the crimes against the Appellant beyond reasonable doubt. The finding of the trial Court convicting and sentencing the Appellant is unassailable.

In the end, I resolve this issue in favour of the Respondent and against the Appellant. Consequently, I dismiss this appeal as it has no merit and affirm the decision of the lower Court in Suit No: ADSY/69C/2017 delivered on the 1st August, 2017.

CHIDI NWAOMA UWA, J.C.A.: I read in advance, a draft copy of the judgment delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. My learned brother adequately and comprehensively resolved the issues arising in this appeal, I agree with his reasoning and conclusion arrived at in holding that the appeal is devoid of merit and the order dismissing same.

I affirm the decision of the lower Court in Charge No. ADSY/69C/2017 delivered on the 1st August, 2017.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead judgment just delivered by my learned brother Mohammed Lawal Abubakar, JCA. I agree with the conclusion my Lord arrived at in the lead judgment that the appeal lacks merit and should be dismissed. It is hereby dismissed by me with nothing further to add.

Appearances:

I. S. Afolabi Esq. For Appellant(s)

M. A. Umar Esq. Senior State Counsel, Adamawa Ministry of Justice with him Aisha A. Abba Esq. Senior State Counsel II, Adamawa Ministry of Justice For Respondent(s)