AREMU v. STATE (2022)

AREMU v. STATE

(2022)LCN/16251(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 06, 2022

CA/EK/19C/2021

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

LANRE AREMU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN A CONFESSIONAL STATEMENT IS RELEVANT

The law is quite settled that a confessional statement is relevant and admissible in evidence once it satisfies the conditions laid down in Sections 28 and 29 of the Evidence Act, 2011.
Section “28” provides: A Confession is an admission made by a person charged with a crime stating or suggesting the inference that he committed that crime.
29 (1) provides “In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is now excluded by the Court in pursuance of this section” Except if the confession is inviolation of Section 29 (2) (a) and (B) of the Evidence Act 2011. PER WAZIRI, J.C.A.

THE POSITION OF LAW ON THE BEST AND SAFEST EVIDENCE TO CONVICT AN ACCUSED PERSON

It is settled law that there is no evidence stronger than a person’s own admission or confession.
The confessional statement made by an accused person is potent evidence in the hand of the prosecutor for proving a charge.
It is the best and safest evidence on which to convict. See the following cases:
– 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.
– OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) 351 AT 387.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It is settled law that in Criminal trials, the prosecution must prove its case against the Accused/defendant beyond reasonable as provided in Sections 135(1) of the Evidence Act 2011 and 36(5) of the 1999 Constitution as amended. This is achieved where the prosecution succeeds in proving or establishing the essential elements/ingredients constituting the offences charged. PER WAZIRI, J.C.A.

DEFINITION OF ARMED ROBBERY

Armed Robbery is simply defined as stealing with violence or threat. For the prosecution to sustain a conviction against the defendant, the three elements/ingredients as laid down in BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465 AT 469 H must be proved to wit:
(a) That there was a robbery or series of robberies:
(b) That each robbery was an armed robbery: and
(c) That the Defendant was the robber or one of those who took part in the robbery. See the case of BELLO VS THE STATE (2007) 10 NWLR (PT. 1043) 564 AT 588-589 H-A
– AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619 AT 641 F-G.
The Prosecution/Respondent is at liberty to prove its case against the defendant/Appellant by any of the three listed ways:
(1) Eye witness evidence.
(2) Confessional statement
(3) Circumstantial evidence. PER WAZIRI, J.C.A.

INGREDIENTS OF THE OFFENCE OF CONSPIRACY

For the charge of conspiracy the ingredients are as follows:
(1) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal; by illegal means
(2) That some act besides the agreement was done in furtherance of the agreement.
(3) That each of the accused person individually participates to the conspiracy.
Now, as settled by the Apex Court, conspiracy is an agreement of two or more persons to do an act which is an offence. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do, in furtherance of the offence of conspiracy. See the case of:
– NWOSU VS. STATE (2004) 15 NWLR (PT. 897)466.
– ODUNEYE VS. STATE (2001) 2 NWLR (PT. 697) 311. PER WAZIRI, J.C.A.

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): This is an appeal which arose from the judgment of High Court of Justice Ekiti State, Ado Judicial Division Coram Judice, L.O Ogundana (J) delivered on the 15th day of September, 2020.

The Appellant herein was the 2nd Defendant who was arraigned alone with the 1st Defendant by way of information consisting of five count charge as follows:-
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY, Contrary to Section 403 A of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria, 2012.
PARTICULARS OF OFFENCE
LANRE KAYODE AND LANRE AREMU on or about the 14th day of July, 2017 at Oke-Ila Area, Ado Ekiti, in Ado Judicial Division conspired together to commit felony to wit: Armed Robbery.
COUNT 11
STATEMENT OF OFFENCE
PARTICULARS OF OFFENCE
ARMED ROBBERY, contrary to Section 402 (2) (a) of the Criminal Code Law, CAP C16. Laws of Ekiti State of Nigeria, 2012.
PARTICULARS OF OFFENCE
LANRE KAYODE, and LANRE AREMU, on or about the 14th day of July, 2017 at Oke Ila Area, Ado Ekiti, in Ado Judicial Division while armed with offensive weapons, to wit: guns and cutlasses, robbed One Jimoh Ganiyu Babatunde of his Lexus Car with Registration Number; ADK/332 EV (Ekiti) and a sum of One Hundred and Fifty Thousand Naira (N150, 000.00).
COUNT 111
STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 402(2) (a) of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria 2012.
PARTICULARS OF OFFENCE
LANRE KAYODE, and LANRE AREMU, on or about the 14th day of July, 2017 at Oke Ila Area, Ado Ekiti, in Ado Judicial Division while armed with offensive weapons, to wit: guns and cutlasses, robbed One Ilesanmi Olukayode Tope of his Nokia Phone.
COUNT IV
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 402 (2) (a) of the Criminal Code Law, Cap 16, Laws of Ekiti State of Nigeria, 2012.
PARTICULARS OF OFFENCE
LANRE KAYODE, and LANRE AREMU, on or about the 14th day of July, 2017 at Oke Ila Area, Ado Ekiti, in Ado Judicial Division, while armed with offensive weapons, to wit: guns and cutlasses, robbed One Jimoh Folajoke Oluremi her Laptop and a Toyota Camry Key.
COUNT V
STATEMENT OF OFFENCE
BURGLARY, contrary to Section 411(1) of the Criminal Code Law, CAP C16, Laws of Ekiti State of Nigeria, 2012.
PARTICULARS OF OFFENCE
LANRE KAYODE, and LANRE AREMU, on or about the 14th day of July, 2017 at 2:10.00am in the night, at Oke Ila Area, Ado Ekiti, in Ado Judicial Division, did break into the dwelling house of One Jimoh Folajoke Oluremi with intent to commit a felony to wit Armed Robbery.

Trial commenced on the 7th day of March, 2019 with the Five Count Charge read to the two defendants to which they all pleaded not guilty. The prosecution/Respondent called four witnesses to prove its case and tendered Exhibits A-A1-B-B1 Respectively after a trial within trial or a mini-trial was conducted to ascertain their voluntariness.

The Appellant herein as 2nd defendant opened his defence and testified as DW2 but called no further evidence. At the conclusion of trial and after careful consideration of the addresses of counsel, the trial Court found them guilty where it held thus:
“The 1st defendant, LANRE KAYODE, is hereby sentenced to death by hanging until he breathe his last, on counts 1, 11,111 and IV while he is sentenced to life imprisonment on count V being burglary. In the same vein, the 2nd accused LANRE AREMU is accordingly sentenced to death, by hanging until he also breathes his last, on counts 1, 11,111 and IV while he is sentenced to life imprisonment on count V. May the good Lord have mercy upon your souls”. Page. 196 of the printed Record of Appeal.

Dissatisfied with the judgment of the trial Court, the Appellant filed an appeal to this Court via amended Notice of Appeal dated 4/12/2020 consisting of Nine Grounds of Appeal. Grounds 1-8 with their particulars while ground 9 is the omnibus ground of appeal. The records of appeal was compiled and transmitted to this Court on the 19/2/2021 and deemed properly compiled and transmitted on the 10/11/2021.

In accordance with the rules of this Court, briefs were filed and exchanged by counsel. Learned counsel for the Appellant Jimoh Saliu Esq., filed Appellant’s brief of argument dated 12/11/2021 and filed on the 16/11/2021 and a reply on the 3/3/2022 but deemed on the 11/5/2022.

Learned counsel for the Respondent IBIRONKE Odetola Esq, (PLO) (ESMOJ) filed the Respondent’s brief dated and filed on the 16/2/2022 but deemed properly filed and served on the 11/5/2022.

In his brief, Appellant’s Counsel formulated four issues for determination namely:
1. Whether or not the failure of the Respondent to comply with the provisions of the Administration of Criminal Justice Law of Ekiti State, the decision of the Supreme Court in the case of OWHORUKE VS. COP and other decisions of superior Courts on the arrest, investigation and obtaining of confessional statement from suspects and is not fatal to the conviction and sentencing of the Appellant (Ground 7)
2. Whether or not the trial Court was right to have found the Appellant guilty of conspiracy, Armed Robbery and Burglary by reliance on doctrine of recent possession when there was no admissible evidence of prior meeting between the Appellant and DW1, presence or involvement of the Appellant on record in any of the alleged crimes before the trial Court (Grounds 1 and 3)
3. Whether or not the trial Court has not informed on the Appellant right to be fairly heard when the Court admitted and unchallenged evidence and statutory defences raised by the Appellant before arriving at the convicting and sentencing of the Appellant (Grounds 2 and 5)
4. Whether the learned trial Judge is not duly bound to relief and adopts the unchallenged and uncontradicted evidence of the Appellant on record (Grounds 8 and 9).

On its parts, learned counsel for the Respondent formulated a sole issue as arising for the determination of this Appeal thus:
1. Whether considering the totality of evidence adduced before the trial Court, the Court was right in its decision that the prosecution successfully established and proved the ingredients of the offences of conspiracy, Armed Robbery and burglary warranting the conviction and sentencing of the Appellant beyond reasonable doubt (grounds 1,2,3,5,6,7 and 8)

After examing the two sets of issues formulated by the respective learned counsel to the parties I am of the humble view that I shall be duly guided by the Appellant’s counsel issues the undoubted owner of the appeal in the resolution of the appeal one way or the other.

The facts giving rise to this appeal are not subject to serious argument. The Appellant herein and one Lanre Kayode the 1st Defendant conspired together on or about the 14th day of July at Oke Ila Area Ado Ekiti armed with offensive weapons to wit: guns and cutlasses and robbed the following: Jimoh Ganiyu Babatunde of his Lexus Car the sum of One Hundred and Fifty Thousand Naira (N150,000), Ilesanmi Olukayode Tope of his Nokia Phone and burgled, Jimoh Folajoka Oluremi house and made away with her Laptop and a Toyota Camry key. These were denied by the Appellant and his Co-conspirator/1st Defendant.

APPELLANT’S COUNSEL SUBMISSION ON THE FOUR ISSUES.
Argument of Appellant on Issue No. 1
Dwelling on this issue the Appellant counsel posited that it is settled law that all evidence lawfully admitted by the trial Court ought to be evaluated and cited the case of Charles Okike Vs LPDC (2005) NWLR (pt 949) 471. By the contention of the Appellant at the trial Court what the Appellant challenged was not whether he wrote Exhibit B and BI but whether it was voluntarily obtained. Counsel submitted that all the vital evidence bothering on severe torture were never controverted or challenged by the Respondent rather same was admitted by Pw4, as this was purely a case of failure of the trial Court to make use of admitted evidence which was not challenged by the Respondent. Counsel submitted furthermore that to show and justify that the case of the Appellant has nothing to do with that of Dw1 being investigated, consistently, the Police letter heads used for PW1, PW2, PW3 and DW1 are the same carrying at the left hand corner Best in Africa and at both end of the continuation sheet, NNP024/1290500,000. Counsel contended that Exhibits B and BI do not bear Best in Africa know with the Federal Police and are radically different in all forms and character as the Statement sheets used for the Appellant, all these features Sheets of the PW1, PW2, PW3 and DW1 are not on that of the Appellant, a Closer look at Exhibits B and B1 shows Police D 19 used in Lagos Police command and this was absent on the other PW1-Pw4.

The learned counsel submitted that the law is that the purpose of a trial-within-trial is not to ascertain if a confession was true as done by the trial Court here; it is rather a trial for the prosecution to prove to the Court, beyond reasonable doubt, that the confession in issue was actually made voluntarily by a person accused of a crime. Counsel cited in aid the cases of Ifaramoye vs. State (2017) LPELR-4203 1(SC), State vs Obobolo (2018) 4 NWLR (Pt1610) 399 at 424 and Section 29(2) (b) of Evidence Act 2011. Counsel stated that it was beyond conjecture that the Appellant were tortured by the police to obtain their statement, the trial Judge appeared to have misconstrued the objection of the Appellant who challenged the voluntariness of Exhibits B and BI for denial of making the same, this misunderstanding of the objection of the Appellant led the trial Court to have arrived a perverted conclusion contrary to the available evidence on record relating to the trial within trial. Counsel cited the case of Lasisi vs. The State (2013) LPELR 20183 (SC).

The Appellants drew the Court attention that the law requires where an interpreter is employed to interpret the confessional statement to an accused person as in this case, the trial Court must ensure that the interpreter is brought before the Court to give evidence of the questions asked and what he interpreted to the accused person else the confessional statement remains inadmissible, as the said confessional statement is only admissible through the interpreter and no one else. Counsel submitted that this was an objective procedural requirement as upheld by the Apex Court in the case of Olalekan Vs State (2001) 12 SCNJ 94, and further cited the cases of Lasisi vs. State (2011) ALL FWLR (PL601) 1401 CA and Woru Vs State (2011) ALL FWLR (pt 602) 1644 CA.

Counsel submitted that there is no doubt that the Appellant made two statements Exhibits B and B1, where the trial of the admissibility of both Exhibits B and B1 were lumped together, as against the golden requirements of the law on the subject matter, as this is fatal to the admissibility of those Exhibits. Counsel commended the cases of Durugo vs. The State (1992) 7 NWLR (pt. 255) 525 at 535SC and Yinusa vs. State (2017) All FWLR (pt 909) 309 at 325 CA.

Counsel urged that failure of the Respondent to tender the Report of Investigation and the fact that the Pw4 was not the one that arrested and investigated the crime alleged against the Appellant is a cardinal issue that the lower Court ought to have pronounced upon as it is the law that the evidence of a Investigating Police Officer over what he saw or observed personally in the cause of his investigation does not to amount to hear say, however where he gave evidence of the recorded statements of witnesses who were not called to give evidence, this amount to hearsay evidence. Counsel cited in aid the cases of Uko vs. State (2019) LPELR48770 (CA), FRN vs. Adamu (2018) LPELR-46024(CA) and Idoko vs State (2019) LPELR 48957(CA). Counsel contended that assuming it is however conceded that the Pw4 can give evidence of what he saw and observed in the course of his investigation but definitely not what other team or section of police without identity did months before his team came on board, as there is no evidence that he was briefed or given any report in this respect, of particular importance is that all what the purported team that arrested the Appellant did was not documented and or submitted as their report of their investigation from which Pw4 could have easily adopted and base his evidence on which is clearly against the provisions of Sections 125 and 126 of Evidence Act 2011.

Counsel stated that PW4 admitted expressly that the Appellant did not have a legal representation when his Statement was obtained and that he and the other members of his team vehemently refused to allow video recording of the time and circumstance when the Appellant was making his purported confessional statement. Counsel cited the cases of Onochie vs. Odogwu [2006)1 6 NWLR (PT 975) 65, Amokeodo vs. Inspector General of Police & 2 Ors [1999] 6 NWLR (Pt. 607) 467, Tabik Investment Ltd & Anor vs. GTB Plc (2011) LPELR 3131. In adumbrating Section 17(2) ACJA Counsel further cited in aid the cases of Okediji Abimbola & Anor vs. Atilola & Ors EPR VOL 7 page 104 at 117, Owhoruke vs. COP (2015) NWLR. (Pt. 1483). 557 – 576 PARA B-D, Oguntoyinbo vs FRN (2018) LPELR-5218 (CA) and Section 29 (1-3) Evidence Act 2011.

Counsel argued that the law is where a party refused to cross-examines the opposition on a material fact, it is deemed admitted. Counsel cited the case of Oforlete Vs State (2000) 12 NWLR (PL 681) 415 at 436 C-E, and contended therefore that the failure of the Respondent to controvert the fact that the Appellant had injuries all over him after his arrest corroborated the fact of torture during the process of obtainment of Exhibits B and B1.

Argument of Appellant on Issue No. 2
Counsel posited that it is a settled law that the prosecution has the burden of establishing the ingredients of the offence of conspiracy beyond reasonable doubt, Counsel referred to the cases of The State vs. Ola Shehu Salawu (2011) LPELR-8252 SC and R vs. Meyrick & Ribuff (1929) 21 C.A.R 94.

Counsel stated that the most important element in the offence of conspiracy is the meeting of the minds of the conspirators, therefore conspiracy is a matter of inference from certain criminal acts of the parties concerned, done in pursuance of an apparent criminal purpose. Counsel submitted from the totality of the Record of Appeal, nothing showed that the Appellant participated in the alleged offence. Counsel cited in aid the cases of State vs. Gbahabo (2020) All FWLR (Pt. 1037) 349-526 pg. 377 to 378 SC, Joseph Morah vs. Federal Republic of Nigeria (2019) All FWLR (Pt. 984) pg. 202 and Ewuagba vs State (2018) 7 NWLR (Pt. 1618) 262 at 282 SC. Counsel opined that it was the duty of the Respondent to establish that the Appellant and the Dw1 met to conspire to commit armed robbery and burglary, as the Respondent must prove how the parties met and could not rely on the confessional statements of the Appellant and DW1. Counsel cited the cases of Shurumo vs State (2010) ALL FWLR (pt 551) 1406 CA and Gbadamosi vs. The State (1992) 9NWLR (pt. 266) 465 (SC). Counsel argued that it is a settled law that the Appellant cannot be convicted of conspiracy to commit an offence not even murder or Armed robbery on the strength of his own confessional statement alone unless there is an independent evidence. Counsel referred to the case of Osho vs. the State (2018) 13 NWLR (pt. 1 637) 474 at 489. Counsel opined that since it is settled that it takes two to tango, the Appellant confessional statement that he conspired with Lanre needed to be corroborated by a confession from Lanre Kayode, that he also conspired with the Appellant, which was not the case. Counsel submitted that the confession must be in line with other evidence admitted before the Court as held in the case of Nweze vs. State (208) 6 NWLR (pt1615)197 SC, as all other evidence before the Court shows that the Appellant was not at the scene of the crime and nothing but the unbelievable confessional statement that the Appellant and DWI ever met, even the DWI the person who masterminded the crime said the Appellant was not there. Counsel cited the case of Dairo vs. State (2018) 7 NWLR (pt1 619) at 399 @423.

The defence of the Appellant was that nothing was found on him and that he was never arrested at Redeem Camp or Ishagamu as the Respondent want the Court to belief. The Respondent admitted this fact by silence and by not offering a rebuttal. Appellant gave vital evidence showing none of the items were found on him which was not challenged under cross-examination. The trial Court without putting the evidence of the Appellant on the judicial scale disregarded the same with impunity, this is far from the spirit and the presumption of innocence guaranteed by the Constitution, assuming the trial Court was right though not conceded that the goods were found on the Appellant, this alone does not support conviction for charge of Armed Robbery or Burglary, not even conspiracy, at best it may ground conviction for being in possession of stolen goods or receiving stolen goods, and before the doctrines operate, the conditions stated in the case of People of Lagos Vs Umaru (2014) LPELR- 22466 (SC) must be proven by the Prosecution. Counsel cited the case of R. vs. Griliopoulous [1953] 20 NLR, 114.

Counsel listed the ingredients to be proved in a charge of Armed Robbery and cited the case of Olayinka vs State (2007) 9 NWLR (pt 1040) 561 at 529-583 paras G-A., State vs. Sani (2018) LPELR-43598 (SC), Section 135 of Evidence Act, Chukwuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391 at page 408, SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586 AT 614-615, ABOKOKUYANRO V. THE STATE (2016) LPELR – 40107 (SC), Chukwuma vs. FRN (2011) 13 NWLR (Pt.1264) 391 at 408. Counsel stated that the trial Court did not take cognizance of the fact that in Nigeria criminal jurisprudence, each of the Section that created an offence has codified the ingredients of each of the offences being what the prosecution needs to prove to the exclusion of the others. Counsel cited the case of Idoko vs. State (2019) LPELR 48957(CA) and Ekpo vs. State (2001) 7 NWLR (pt712) 292.

Appellant Counsel stated that the Charge of Burglary under Section 411(1) of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria 2012 has similar ingredients with Robbery. Counsel cited in aid the case of Amodu Vs State (2010) 2 NWLR (pt1 177) at 68-69. Counsel further stated that the Respondent failed woefully to link by credible evidence that the Appellant was present at the place where the house breaking was committed, based on the account of pw1-pw3, as pw4 evidence agreed with the Appellant, as the Court of law is enjoyed to rely on and make use of evidence before the Court and not to assume or act on speculation in arriving at its conclusíon. Counsel cited the case of Mai-Kiri vs Yahaya (2018) LPELR 46595(CA) wherein the case of Ivienagbor Vs Osato Bazuaye & Anor (1999) 6 SC (PT. 1) 149 was commended. Counsel further cited the cases of Chukwuma vs. FRN (Supra), Osuagwu Vs. The State (2016) LPELR-4086 (SC) and State Vs. Danjuma (1997) 5 NWLR (PT. 506) 512.

ARGUMENT OF APPELLANT ON ISSUE THREE
Counsel contended that the law is settled and the provisions of Section 167(d) of Evidence Act 2011 that whoever ought to produce an evidence but deliberately refused to produce such, the law presumed such will be against his interest counsel cited the cases of Onyekwuluje vs. Animashaun (2010) 4 NWLR (PT 1662)242 SC wherein the case of Nwocha vs. State (2012) 9 NWLR 1306) 571 at 590 was cited. Counsel submitted that the evidence of the officers that arrested the Appellant at Redeem Camp or their report of investigation is cardinal to uphold the presumption of recent possession when the Appellant said in his defense that his purported arrest was far from the truth, the Respondent did not deny the evidence of the defense or discredit it at the trial.

Counsel submitted that it must be noted that the evidence of the Appellant was not taking by the trial Court at the trial proper as required by law. The trial Court had forgotten that trial within trial is a separate and independent proceeding from the trial proper. Counsel cited the case of Ifaramoye vs. State (2017) 8 NWLR (pt. 1568) 457 at 494 and Yinusa vs. State (2019) LPELR-4793) CA. Counsel further submitted that even where an accused person decides to admit to some aspects of the crime while in the box during the trial-within-trial, such admission is privileged and cannot be used against him in the trial proper, as the law says using such an admission against the Appellant amounts to flagrant violation of his right to be fairly heard. Counsel commended the case of R vs. Brophy (1982) AC 476 which was cited by S.T Hons. Law on Evidence in Nigeria 3 Edition page 257.

Counsel argued that the cross-examination question by the Respondent rather cemented the fact that the appellant was not at the scene of crime or involved in the alleged offences when he gave evidence, as it is the law that evidence not challenged is deemed admitted. Counsel cited the case of Ikuomola vs. Oniwaya (1990) LPELR-1489(SC)

Counsel cited the case of Nwocha vs. State (2012) 9 NWLR (pt. 1306) 571 at 590 CA and argued that It is a case of the Respondent not calling vital witnesses particularly to prove the involvement of the Appellant when apart from the fact that he was purportedly arrested with some of the stolen items, there is nothing else linking him with the crimes alleged. Counsel cited the case of Nwokolo vs. Nwokolo (2018) LPELR- 45035 (CA). Counsel stated therefore, the decision of the learned trial Court to discountenance the evidence of the Appellant and describing same as concocted tale by moonlight and the decision of the trial Court to shut out the Appellant from stating his defence during the trial proper and forcing him to rely on his evidence during trial-within-trial in deviant to the settled law amount to a deliberate infringement on the right of the Appellant to be heard fairly, as guaranteed under Sections 36(1) and 2 (a) of the CFRN 1999. Counsel submit that failure to hear a party who ought to be heard is fundamental, it is like absence of jurisdiction, it takes away everything from the trial and any decision reached and rendered the same useless. Counsel referred the Court to the cases of Mbanefo vs. Molokwu &Ors (2014) LPELR-22257 SC, Newswatch Communications Ltd Vs. Attah (2006) LPELR-1986(SC) or (2006) 12 NWLR (Pt.993) 144 (P. 41, Paras. F-G) and Kanu vs. Chukwuemeka (2019) LPELR-47556 (CA). Appellant’s Counsel stated that the Court is duty bound to consider all the defenses of the defendant dispassionately no matter how flimsy it looks. Counsel commended the case of Bala Vs State (2019) LPELR-48945 (SC).

ARGUMENT OF APPELLANT ON ISSUE FOUR
The Appellant contended that the decision of the trial Court is against the weight of law and evidence before the trial Court, as the totality of the evidence should be considered in order to determine which has weight and which has no weight. Counsel cited the case of Mogaji vs Odofin (1978) 4 SC 91 at 93-94. The evidence of the Appellant was that he was not at all involved in the alleged crimes and he stated where he was at the night of the incident with acute particulars yet, the Court turned a blind eyes to all his evidence without putting the same on the scale of justice to see how it would have pulled down the evidence of the prosecution, this approach without exaggeration is grossly unfair to the Appellant. Counsel cited the case of Elayo vs Veregh (2019) LPELR-47134 (CA).

Counsel submitted that the Respondent deliberately refused to tender the report of investigation of the alleged crime by Pw4 despite listing same as part of document to be relied on at the trial, as the refusal to tender in evidence the report of investigation is to cover up the shoddy investigation carried out by the Respondent particularly since the Respondent knew it will not be favorable to them. Counsel further submitted that there is a presumption of Law under Section 167 d of Evidence Act against whosoever conceals or withholds evidence that same if produced will be against his interest. Counsel commended the cases of Ogudo Vs State (2011)18 NWLR (pt. 1278) at 11, Olayinka Vs State (2007) ALL FWLR(pt. 373) at 163 SC. Counsel urged this Court to allow this Appeal, set aside the judgment of the lower Court quashing the conviction and subsequent sentencing of the Appellant and dismiss the entire charges.

APPELLANT’S REPLY BRIEF
The Appellant in its reply brief argued that the Respondent, rather than adopt issues as stated by the Appellant formulated its own issue outside the issues stated by the Appellant and does not answer the questions of law submitted by the Appellant for the Court’s determination. Counsel contended that this was against the settled rules of practice, the sacred provisions of rules of this Court and the state of judicial authorities. Counsel further contended that Order 7 Rule 5 and 6, Order 19 Rule 4(1) and (2) of Court of Appeal Rules 2021 makes it mandatory for the respondent’s issues to be based on the grounds of appeal and the Respondent’s brief must answer all the questions put forward for the Court’s determination by the Appellant, as the rule is that where the Respondent does not cross-appeal, the sole duty in the appeal therefore remains to defend the judgment of the lower Court. Counsel commended the Court the cases of Nteogwuija v Ikuru (1998) 10 NWLR (pt569) at 288, Awojugbagbe Light Industries Ltd v Chinukwe (1993) 5 NWLR (pt 240) 130 and Nnaji vs Ede (1996) 8 NWLR (pt574)422 at 438.

Counsel contended further that the consequence of not reacting and formulating new issues by the Respondent based on the grounds of appeal pending before the Court is grave and it is as stated in the case of Emeghara V. Health Management Board of Imo State & Ors (1987)2 NWLR (pt.56) 1, 350, to the effect that such issue must be struck out. Furthermore, the inability of the Respondent to react to any of the issues formulated by the Appellant, the Respondent is deemed to have admitted the case of the Appellant and has otherwise supported the appeal, as it is a trite law that facts admitted requires no further proof. Counsel cited in aid the cases of Ikpala Estates Hotels Ltd V. National Electric Power Authority (2003) LPELR-5733(CA), Agbanelo vs Union Bank of Nigeria (2000) 7NWLR (pt. 666) 534, 2000) FWLR (pt13)2197, Idakula v Richards (2000) FWLR (pt.14) 2439 and MACFOY. V. UAC (1961) 3 ALL ER 1169 at 1172.

Counsel urged this Court to disregard the arguments of the Respondent as it failed to address the issue which as a matter of law the Respondent is meant to protect. Counsel cited the aid the cases of Okpokirii V Okpokirii (2000)3 NWLR (pt. 649) 46, Ike V Enang (1999)5 NWLR (Pt. 602) 261, Management Enterprises Ltd V Otusanya (1987) 2 NWLR (Pt55) 179, Onifade V Olayiwola (1990) (pt161) 130 and Atanda Vs Ajani (1989)3 NWLR (Pt. 111) 511.

RESPONDENT’S ARGUMENT ON SOLE ISSUE
In arguing the lone issue proposed for the determination of this appeal, Respondent’s Counsel submitted that it totally agreed that in all criminal trials, it is the duty of the Prosecution to prove the guilt of the Defendant beyond reasonable doubt and this burden never shifts. Counsel cited the case of CHUKWUMA V. F.R.N. (2011) LPELR-836 (SC) Pp. 15-17, paras. F-A.

The Respondent submitted that the burden is discharged by calling witnesses to give compelling evidence against the accused persons with relevant exhibits to lend credence to oral evidence. Counsel further cited the case of STATE V. SANI (2018) LPELR-43598 (SC) Pp. 14-15, paras. F-A, OKANLAWON V. THE STATE (2015) LPELR-24838 (SC) Pp. 44- 45, paras. G-A.

Counsel listed the ingredients to prove the charge of Armed Robbery and cited the case of ORISA v. STATE (2018) LPELR-43896 (SC) Pp. 53-54, paras. B-A and further stated the ways to establish the guilt of an accused person for the commission of an alleged crime and cited the case of GIKI V. STATE (2018) LPELR-43 604 (SC) P. 9, paras. A-C. Counsel opined that it was trite that when an accused person raises the defence of involuntariness while recording his Confessional Extra-Judicial statement, the trial is not in any way precluded from admitting same, rather the trial judge should put to test the veracity of the accused person’s claims most especially to determine the voluntariness or otherwise of the Statement after listening to and observing witnesses from both sides. Counsel contended that what the law requires of the Court is to admit and later determine the weight to be attached to the confessional statement, once the Court is convinced based on the credibility of witnesses that testified during the trial within trial that the confessional statement was voluntarily recorded. Counsel referred to the case of IDAGU V. STATE (2018) LPELR- 44343 (SC) (Pp. 10-12, paras. C-A) wherein the cases of Ifaramoye V. The State (2017) LPELR-42031 (SC), Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 403 were cited. Counsel stated that the confessional statement does not only contain the facts about Armed Robbery, it also contains facts about Burglary and above it all Conspiracy. Counsel further submitted that there can never be a better evidence that a direct and unambiguous confession coming from the person who knew exactly what he did and owned up to it, as a confessional statement is tenable and admissible in evidence by virtue of Section 28 of the Evidence Act.

Counsel stated that the Appellant Counsel was wrong to have argued that the trial Court ought not to have admitted and relied on Exhibits B & B1 due to the involuntariness raised. Counsel cited the case of OKAPO V. V STATE 1 SCM at 130 (PARAS D-E), EGBOGHONOME V. STATE (1993) NWLR 283. Counsel listed the principle to follow to test the truthfulness of a confession statement and referred to the cases of ALIYU V. STATE (2019) LPELR-47421 (SC) PP 10-11, PARAS. A-E and ABIODUN V. STATE (2013) ALL FWLR (PT. 700) 1257 at 1266-1277 and further submitted that the admitted Exhibits B & B1, remains unfettered in proving the guilt of the Appellant having passed through trial within trial.

Counsel submitted that the trial judge was right when he relied on the English evidential doctrine of recent possession as provided by Section 167 (a) of the Evidence Act, 2011 as a surplusage despite the fact that the Prosecution laid credible evidence through the testimonies. Counsel referred to the case of STATE V. BALOGUN (2018) 7 (PT. 2) SCM AT PAGE 160, paras B-C. Counsel cited the case of NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 12 SCM 56 at PAGES 71-72, PARAS F-1, A-D.

Counsel argued that unless Counsel has appealed against the order admitting the statement after a trial-within-trial, he is stopped from raising the issue on appeal as he is deemed to have accepted the Order admitting the confessional statement. Counsel referred to the case of OKOH V. STATE (2016) LPELR-40656 (SC) PP. 1112, PARAS. F-B. Counsel submitted in contra-distinction to the argument to the Appellant’s Counsel in his brief of argument that the failure of the Prosecution to call the Police Officer who arrested the Appellant was not fatal to the Respondent’s case, as the Appellant was sufficiently fixed to the commission of the crime even through his confessional statement where he pertinently stated the steps taken to execute the robbery incident. Counsel cited in aid the case of ADAMU V. STATE (2019) LPELR- 46902 (SC).

Counsel stated that the absence of the Appellant’s Legal Practitioner and the non-recording of the confessional statements is not in any way injurious to the Prosecution’s case, as the Appellant’s Counsel appears to have forgotten that the applicable Procedural Law in Ekiti State when the Appellant was charged is the Ekiti State Administration of Criminal Justice Law, 2014 and not the Administration of Criminal Justice Act, 2015. Counsel further submitted that Exhibits B & B1 are admissible under Section 9 (3) (Paragraph 2) of the Ekiti State Administration of Criminal Justice Law, 2014 and further submit that the proviso to Section 3 of the Ekiti State Administration of Criminal Justice Law, 2014 is made pursuant to the Evidence Act which is a Federal Law and thus, non-compliance with the Ekiti State Administration of Criminal Justice Law, 2014 will not render the Confessional statements inadmissible. Counsel stated that the Ekiti State Administration of Criminal Justice Law, 2014 is a State Law while the Evidence Act is an Act of the National Assembly and where there is conflict, the Evidence Act prevails. Counsel commended the case of DAIRO V. STATE (2017) LPELR- 43724 (SC).

The Respondent Counsel stated that on the issue of Alibi, the assertion of the Appellant’s Counsel is erroneous being that the Appellant only raised the bogus defence while stating his defence, as it is trite that for a defence of alibi to be reliable it must have been raised timeously. Counsel referred to the case of NOMAYO V. STATE (2018) LPELR-44729 (SC) (PP. 16-17, PARAS. A-D) wherein the cases of Monday Odu v. The State (2001) 10 NWLR (Pt.722) 668 at 674 and Hausa v State (1994) 6 NWLR (Pt.350) 281 at 301-302 were cited.

Counsel stated that the contention of the Appellant’s Counsel that the trial Court was misled and had its face beclouded with bias and unsolicited pities was not the case in the face of the overwhelming confessional, direct and circumstantial evidence adduced by the Respondent as contained in the Record of Appeal, which the Appellant could not puncture during trial. Counsel further stated that the Appellant Counsel clamorously argued that the non-tendering of the Police Investigation report made by the arresting police officer and PW4 was an attempt by the Prosecution to cover up the shoddy investigation carried out, as this is incorrect and holds no water. Counsel stated that page 21 referred to by the Appellant’s Counsel did not list the Police Investigation Report as part of the documents to be used in prosecuting the Appellant before the trial Court hence the Respondent could not have willingly withheld such an evidence. Counsel referred to Section 251 of the Ekiti State Administration of Criminal Justice Law, 2014. Counsel stated further that the Ekiti State Administration of Criminal Justice Law, does not make provision neither does it mandate the Prosecution to include the Police Investigation in the proof of evidence or list of exhibits, as what the Appellant should have rightly done before the trial Court was to have requested for the Police Investigation Report to defend himself if he knew the production of such document was germane for his defence at the trial Court rather than waiting to raise same before the Appellate Court. Counsel cited the case of NWEKE V. STATE (2017) LPELR-42103 (SC) Pp. 11-13, paras. G-E.

Counsel referred to Section 411 (1) of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria, 2012. Counsel opined that it is trite that the uninvited entry of the Appellant to the victims apartment was consequent upon a forceful entry resulting in the breaking into of the said apartment at about 2:10 am.

Respondents counsel posited that the law was trite that for allegation of Conspiracy to be proved beyond reasonable doubt by the Prosecution, three ingredients must be established. Counsel cited the case of STATE V. SALAWU (2010) All FWLR (Pt. 614); 1 at pg 29 and contended that it is well established that once agreement is shown to exist between the conspirators, evidence admissible against one conspirator, is equally admissible against the others. Counsel cited in aid the cases of GBENGA OSHO V. STATE (2018) ALL FWLR (PT. 966) PG. 233 at 250 PARAS. A-E, EMENEGOR V. STATE (2009) VOL.31 WRN PG. 66 at 73-75, at P. 102 lines 40-15 and lines 15-35 and ADESINA V. STATE 2010 vol. 35 WRN pg 49 at pg 69 lines 35-45 (Ration 6 pg 54).

Counsel submitted that the confessional statement of the Appellant clearly reveals that the Appellant conspired with the other defendant to commit the heinous crime while they were hatching their criminal intention to rob PW1, as It is a well-entrenched principle of law that the best evidence of Conspiracy is usually obtained either from one of the conspirators or from inferences. Counsel contended that the overt act or commission is often the only evidence which translate into the actus reus and the actus reus of each of the conspirators is often regarded as the only proof of criminal agreement to commit a crime which is what is called Conspiracy. Counsel referred to the case of SAIDU HARUNA V. THE STATE (2018) ALL FWLR (PT. 969) 689 at PP. 734-735; PARAS. G-A. Counsel also referred to the case of JUA V. STATE (2010) VOL. 43 WRN P. at 36 Lines 25-35 wherein OLABISI OLAKUNLE V. STATE (2018) ALL FWLR (947) 1270 at 1295 Paras. E-G. OBIAKOR V. STATE (2002) FWLR (PT 113) 299. UBIERHO V. STATE (2005) ALL FWLR (PT. 254) 804 were cited.

Counsel opined that it is the law that once the Prosecution succeeds in proving the existence of Conspiracy, evidence admissible against one conspirator is also admissible against the other. Counsel cited the case of NWANKWOALA V. THE STATE (2006) 14 NWLR (PT 1000) PG. 663 at 683-684 PARAS C-E. Counsel further submitted that even where the substantive offence has not been successfully proved, conviction for Conspiracy does not ipso facto become improper, because the offence of Conspiracy is a distinct and separate offence and independent of the actual commission of the offence to which the conspiracy is related. Counsel referred to the case of MARTINS V. STATE (2019) LPELR-48889 (SC).

Contrary to the Appellant’s submissions in his Brief of Argument that the trial Court failed to evaluate the evidence adduced, counsel submitted that where a trial Court has satisfactorily carried out its duty, the appellate Court has no reason to interfere with the findings of the trial Court. Counsel cited in aid the cases of FAGBENRO V. AROBADI (2006) ALL FWLR (PT. 310) 1575, BOLANLE V. STATE (2010) WRN VOL. 4 PG 26 at 34 and IDAGU V. STATE (SUPRA) PAGE 121-122, PARAS 1, A-B, B, E-F. Counsel contended that it is wrong to allow offender escape justice where there is overwhelming evidence of his culpability and cited in aid the case of STATE V. BALOGUN (2018) 7 (PT. 2) SCM PG. 145 AT 166 PARAS B-D. Counsel urged the Court to dismiss the Appellant’s appeal.

RESOLUTION OF THE FOUR ISSUES FORMULATED BY THE APPELLANT’S COUNSEL SERIATIM
ISSUE ONE:
I have given an insightful and analytical consideration to the legal submissions proffered by the respective learned counsel to the parties in this appeal on this issue earlier on reproduced in the course of the judgment of which there is no need to reproduce it. I have also dutifully considered legal authorities and statutory provisions cited in support of their stands.

Learned Appellant’s Counsel made copious submission on the non-compliance by the prosecution with the provisions of Section 9 of Administration of Criminal Justice Law of Ekiti State Cap C16 2012 as well as the Administration of Criminal Justice Act 2015 on the failure of the Appellant being represented by legal practitioner while recording his statement and also by video-recording of same.

Another area attacked is the non-compliance with the provision of Section 29(2) (a) and b of the Evidence Act, 2011. These submissions have been adequately responded to by learned counsel for the respondent, contending that the absence of a legal practitioner and the video recording of the confessional statement of the Appellant have been cured by Section 9(3) of the Administration of Criminal Justice Law of Ekiti and that administration of Justice Act 2015 does not have any applicability to this case.

My take here is that the provisions of Sections 28 and 29 of the Evidence Act, 2011 are apt and germane in the determination of whether or not the Appellant’s confessional statements Exhibit B and B1 were complied with by the prosecution/Respondent.

The law is quite settled that a confessional statement is relevant and admissible in evidence once it satisfies the conditions laid down in Sections 28 and 29 of the Evidence Act, 2011.
Section “28” provides: A Confession is an admission made by a person charged with a crime stating or suggesting the inference that he committed that crime.
29 (1) provides “In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is now excluded by the Court in pursuance of this section” Except if the confession is in violation of Section 29 (2) (a) and (B) of the Evidence Act 2011.

I have examined Exhibits B and B1, the confessional statement of the Appellant herein I wish to state the requirement evolved by the Apex Court which ought to guide a trial Court namely:
(a) It must contain the words of caution
(b) The cautionary words must have been administered in the language understood by the Accused person.
(c) The Statement was duly signed or thumb printed by the accused person.
(d) That the statement was recorded in the language understand by the accused person.
(e) That the Statement was after being recorded, read over and interpreted to the maker in the language it was recorded.

From the look of the statement of the Appellant Exhibits B and B1, it is as clear that all the above requirements were met or compiled with. I am also of the view the trial Court conducted a trial within trial with a view to determining whether or not the confessional statements were made voluntary.

At the end of the trial within trial, the trial Court in it’s ruling delivered on the 31st day of January, 2020 held “This matter is for ruling this morning. Ruling read in open Court. The objections of the defence Counsel is dismissed. The statement of the 1st defendant is recovered in evidence and marked Exhibit “A” while his additional statement dated the 13/9/2017 is marked Exhibit “A1”. The statement of the 2nd defendant dated is admitted and marked Exhibit “B” while his additional statement also dated 15/9/17 is marked Exhibit “B1”.

It is settled law that there is no evidence stronger than a person’s own admission or confession.
The confessional statement made by an accused person is potent evidence in the hand of the prosecutor for proving a charge.
It is the best and safest evidence on which to convict. See the following cases:
– 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.
– OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) 351 AT 387.

The free and voluntary confessional statement of an accused person alone is enough to sustain a conviction of an accused where such voluntary confession is direct and positive and the Court is satisfied of its truth- See the cases of:
– YESUFU VS. THE STATE (1976) 6 SC 167 AT 173.
– IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50 AT 62-63.
It is customary for the Court to look for some other evidence outside the statement to determine whether it is probable in the event of retraction. The factors to be considered were laid down in the case of R. VS. SYKES (1913) ICT. APP Report 233 thus
(a) Is there anything outside the statement to show that it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true as far as can be tested?
(d) Did the accused have the opportunity of committing the offence?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and proved?
See the cases of QUEEN VS. OBIASA (1962) 1 ALL NLR 651
– ALARAPE VS. THE STATE (2001) The WRN 1 AT 20
OBISI VS. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 AT 38-39.

The learned trial judge held at pages 178-179 as follows:
“I have in the foregoing reproduced the contents of the confessional statements Exhibits A and A1 in which the 1st defendant eloquently set out the circumstances in which he met the 2nd defendant and one ‘’show lighter’’ in the prison where he found himself, on account of producing fake alcoholic drinks and how he exchanged telephone calls with the 2nd defendant who came and met him in Ado Ekiti where he came into agreement to carry out the Robbery the subject matter of this case. The 2nd defendant in his confession in Exhibits B and B1 also corroborated the facts of their meeting in prison with one “Show Lighter’’ how he upon his release from prison carried out a robbery with one Akeem in April 2017 and how one Segun called him to be supplying him stolen vehicles which prompted him to go the 1st defendant in his Ado Ekiti place of abode where they went into an agreement to carry out their robbery of PW1, PW2 and PW3.
The contents of Exhibits ‘A’ ‘A1’ ‘B’ and B1 are so clear in content and they speak for themselves and so, needless it is to be repeating same here again. The confessions of both defendants in these exhibits set out a sequential narration of the part played by each of the two defendants in the series of events in the robbery, right from the planning stage, through execution and their arrest resulting in the recovery of the stolen valuably of their victim from them. The Confession is not only pungent direct unequivocal and incisive and plausibly sequential but mutually corroborative.”

One is left in no doubt that the confessional statements of the Appellant were duly corroborated by the direct and positive identification of them by PW2 and PW3 coupled with the recovery of the valuables of their victims in their possession. The confessional statement of the Appellant Exhibits B and B1 not only fixed him at the scene of the Armey Robbery, but also gave a vivid account of all that transpired during and after the operation including his own role. I find that issue one lacks merit and perforce is resolved against the Appellant and in favour of the Respondent.

ON ISSUE TWO:
I have also considered the legal submissions made in this appeal in respect of this issue as well as the legal authorities cited in support of their submissions.

Now it has been settled that the appropriate thing to do when an indictment contain a charge of conspiracy, along with the substantive charge is to deal with the main charge first and then proceed later to see how far the conspiracy count has been made in an answer to the fate of the charge of conspiracy. See KAYODE VS. STATE (2016) LPELR-40028 (SC) 31 -32: F-A.

In consequence, it would be appropriate to consider, first the main counts of Armed Robbery and Burglary and thereafter I will look at that Court’s approach to the conspiracy charge.

It is settled law that in Criminal trials, the prosecution must prove its case against the Accused/defendant beyond reasonable as provided in Sections 135(1) of the Evidence Act 2011 and 36(5) of the 1999 Constitution as amended. This is achieved where the prosecution succeeds in proving or establishing the essential elements/ingredients constituting the offences charged.

Armed Robbery is simply defined as stealing with violence or threat. For the prosecution to sustain a conviction against the defendant, the three elements/ingredients as laid down in BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465 AT 469 H must be proved to wit:
(a) That there was a robbery or series of robberies:
(b) That each robbery was an armed robbery: and
(c) That the Defendant was the robber or one of those who took part in the robbery. See the case of BELLO VS THE STATE (2007) 10 NWLR (PT. 1043) 564 AT 588-589 H-A
– AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619 AT 641 F-G.
The Prosecution/Respondent is at liberty to prove its case against the defendant/Appellant by any of the three listed ways:
(1) Eye witness evidence.
(2) Confessional statement
(3) Circumstantial evidence.

In the instant case, the Respondent was able to prove its case through the evidence of eye witnesses, the victims of the crime and the confessional statement of the Appellant Exhibits ‘B’ and B1. The evidence of PW1-PW3 showed their encounter with the persons who robbed them. See PW1 evidence at pages 36-39 of the records of appeal. PW2 at pages 39-42 while PW3 is at pages 42-45. All the aforesaid evidence have linked the Appellant with the alleged offences of Armed Robbery and all the three conjunctive elements were proved beyond reasonable doubt.

Count V which deals with Burglary contrary to Section 411(1) of the Criminal Code Laws of Ekiti State Cap C16 2012. The essential ingredients needed to be proved by the prosecution/Respondent are/were:
(i) That the place broken into must among others be a dwelling house.
(ii) That there must be breaking in by him.
(iii) That there must be an entry by him, and
(iv) That the accused person must have committed the felony.

From the evidence on the printed record of appeal, it is beyond any equivocation that all these listed elements were proved beyond reasonable doubt through the testimonies of PW1-PW3 (Supra).

It is my view that the provision of Section 167 (b) was properly and correctly invoked by the trial Court since the Appellant was found in possession of the stolen goods of the armed robbery shortly after the robbery without the Appellant providing cogent reason for his possession of same nailed him to the offences charged.

For the charge of conspiracy the ingredients are as follows:
(1) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal; by illegal means
(2) That some act besides the agreement was done in furtherance of the agreement.
(3) That each of the accused person individually participates to the conspiracy.
Now, as settled by the Apex Court, conspiracy is an agreement of two or more persons to do an act which is an offence. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do, in furtherance of the offence of conspiracy. See the case of:
– NWOSU VS. STATE (2004) 15 NWLR (PT. 897)466.
– ODUNEYE VS. STATE (2001) 2 NWLR (PT. 697) 311.

From the findings of the trial Court, the prosecution/ Respondent established, from the uncontradicted evidence of PW1-PW3, the Appellant’s confessional statements Exhibits B and B1 that the Appellant and his co-accused/1st defendant acted in concert. See the case of OYAKHIRE VS. STATE (2007) ALL FWLR (PT. 344) 1, 12-14.

It is my considered view that the Prosecution/Respondent was able to prove the essential ingredients of the offence of conspiracy and I so hold.

Accordingly, issue two stands resolved against the Appellant and in favour of the Respondent.

ISSUE THREE:
I have also considered the submissions proffered as well as the legion of judicial authorities cited in support of same.

I wish to state firmly that the Courts have built or rather set mechanisms whereby parties must come in the open to make their cases with the cards on the Table and not cunningly or craftily. The Appellant’s counsel herein is complaining of lack of fair hearing not accorded the Appellant by the trial Court as a result placed reliance solely on the unbelievable confessional statement of the appellant without taking into account, Appellant’s evidence and the defences raised and admitted. My take on this is simple, as I have earlier on before now resolved the issue of Appellant’s confessional statement Exhibits ‘B’ and ‘B1’. The Appellant resiled or retracted the confessional statement at the stage of the trial within trial and also when he testified as DW2.

The law is settled that a retraction or denial of a confessional statement does not affect its admissibility.

On the defence of Alibi raised by the Appellant, I wish to point out that an ‘Alibi’ means ‘elsewhere’. That is when a person charged with an offence says that he was not at the scene of the alleged crime. That he was indeed somewhere else and before could not be the one who committed the alleged offence(s). Ordinarily, even though the law does not saddle the accused with the burden to prove his Alibi, but he is not expected to merely state that he was not at the scene of the crime without more. The law requires him to give the lead and particulars of his whereabout as he claimed which will lead the prosecution in its investigation of the Alibi. See YANOR VS. THE STATE (1965) 1 ALL NLR 199 OZULONYE VS. STATE (1981) NCR 38 at 50.
I find and hold that the Appellant did not raise the defence of Alibi timeously but did so while testifying as defence witness 2. Wherein he stated at pg. 65 of the Record of Appeal thus:
‘’On 11th July, I was at home with my wife at No. 9 Charity Street in Oshodi.’’

In view of the foregoing, the trial Court was therefore right in rejecting or not considering the Alibi given by the Appellant in the course of the trial, as it was an afterthought.
See the cases of:
– OCHEMAJE VS. STATE (2008) 15 NWLR (PT. 1109) PAGE 57 AT 90
-TANKO VS. STATE (2008) 16 NWLR (PT. 114) PAGE 597 AT 622.

In the light of all I have stated in this discourse, issue three stands resolved against the Appellant and in favour of the Respondent.

ON ISSUE FOUR
I have also taken a hard but a calm look in respect of the canvassed arguments rendered by the line of divide and considered the evidence adduced before the trial Court. Upon a careful perusal of the printed records of appeal, I am of the humble opinion that the prosecution/Respondent was able to prove its case against the Appellant beyond any reasonable doubt to have warranted the trial Court in convicting and sentencing the Appellant to death/life imprisonment.

In the end, I am satisfied that the learned trial Judge was right in the conviction of the Appellant on the evidence as presented by the Respondent.

Having resolved all the four issues formulated by Appellant against him and in favour of the Respondent, the destiny of the appeal is obvious.

It is unmeritorious and ought to be dismissed.

Accordingly, Appeal No. CA/EK/19C/2021 is dismissed and judgment of HON. JUSTICE L.O. OGUNDANA delivered on the 15th September, 2020 in Suit No HAD/02C/2018 is affirmed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft, the leading judgment, in this appeal, just delivered by my learned brother, Abdul-Azeez Waziri, JCA. I agree with his Lordship’s line of reasoning and conclusion that the appeal is bereft of merit.

The background facts of this matter and details of the trial of the Appellant on a charge for the offences of conspiracy to commit armed robbery, armed robbery and burglary have been elaborately captured in the leading judgment.

At the trial of the Appellant, the Respondent as the prosecution aptly employed both eye witness evidence and the confessional statement of the Appellant, in their bid to establish the offences with which the Appellant was charged. In the given circumstances of this matter, it is my firm view and I hold that the trial Court properly and accordingly found the Appellant guilty of the said offences.

The law is trite that, a confession, since it establishes against the maker the fact that he committed the alleged offence he is being tried for, is the best evidence to prove the fact that it is the accused person, the confessor, who committed the alleged offence. See the cases of: (1) Opeyemi v. State (2019) LPELR-48764(SC) and (2) Dogo v. The State (2013) 10 NWLR (Pt.1361) p.160. The law is equally settled that alone on his confession if direct, positive, duly made and satisfactorily proved before the trial Court, an accused person can be convicted for an alleged offence. See the cases of: (1) Igbinovia v. The State (1981) 2SC p.5, (2) Mohammed v. The State (2020) LPELR-50441(CA) and (3) Opeyemi v. State(Supra).

In the instance case, the confession of the Appellant, Exhibits B and B1 identifies and proves the Appellant as the person who committed the offences with which he was charged, establishing all the ingredients of the said offences. It is pertinent to state that Exhibits B and B1 were properly admitted in evidence after a trial-within-trial ruled against the Appellant, thereby sealing the authenticity of the said confession. What is more, the Appellant has failed to impugn that decision. The law is fairly settled that: “It is at the trial that the Appellant can effectively challenge the prosecutor as to the voluntariness vel non of the confessional statement. If the confessional statement is admitted after the trial, the Appellant cannot argue simply that he did not make the confession voluntarily without first impugning the trial within trial.” See the cases of (i) Bouwor v. State (2016) LPELR-26054(SC) and (2) Ibeme v. The State (2018) LPELR-43603(SC). To put it in other words, the voluntariness or otherwise of the confession of the Appellant herein is not even open for review in the instant appeal, as he has not filed any appeal against the decision of the trial Court in the trial-within-trial which is a complete process in itself albeit within the substantive trial.

For the above ground and the more detailed grounds contained in the leading judgment, I hold that this appeal is a total failure, I accordingly dismiss it and affirm the judgment of the trial Court which duly convicted and sentenced the Appellant as charged.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had a peruse of the leading judgment just delivered by my learned brother ABDUL-AZEEZ WAZIRI (JCA).

My noble Lord has dealt exhaustively with the salient issues raised in the appeal. I have nothing more to add.

The case against the appellant was overwhelming. I also resolve all the issues formulated by the appellant against him. I agree that this appeal lacks merit and should be dismissed.

Consequently, I also order that Appeal No. CA/EK/19C/2020 is dismissed and the judgment of the lower Court delivered on 15/9/2020 in Suit No. HAD/02C/2018 is affirmed.