ASHAKA v. STATE (2022)

ASHAKA v. STATE

(2022)LCN/16292(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, February 24, 2022

CA/KN/619B/C/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ANWALU NADABO DAN ASHAKA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CIRCUMSTANCES WHERE AN APPEAL AGAISNT THE JUDGEMENT OF A TRIAL COURT WILL BE DISMISSED

Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. PER ABIRU, J.C.A.

ONE FUNDAMENTAL REQUIREMENT OF A VALID TRIAL IN A CRIMINAL MATTER

It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi-Whyte, JSC stated that: “A valid trial is posited on the fact of a valid arraignment. An arraignment is ad rationem ponere that is calling on the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the provisions of Section 215 of the Criminal Procedure Law.”
Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that ‘every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.’

The law is that by not raising an objection either to the application to prefer the charge and/or to the two count charge at the time it was read to him, the Appellant acquiesced with the procedure used in preferring the charge against him, and that, having done so, he cannot now be heard to complain that the procedure was irregular – Uwaekweghinya Vs State (2005) 9 NWLR (Pt 930) 227, Oguno Vs State (2013) 15 NWLR (Pt. 1376) 1, Baalo Vs Federal Republic of Nigeria (2016) 13 NWLR (Pt. 1530) 400, Adama Vs State (2018) 3 NWLR (Pt. 1605) 94, Shafiu Vs State (2019) LPELR 47923(CA). Matters of procedural irregularity must be raised by a party in the lower Court at the earliest opportunity, otherwise he will be foreclosed from raising it again. See Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387. In Oko Vs The State (2017) 17 NWLR (Pt. 1593) 24 at 69, the Supreme Court held that:
“A party who did not object to a procedural irregularity at the trial Court would not be allowed to do so at the appellate stage of the proceeding. In this case, if there was any irregularity in the procedure relating to the written addresses at the trial Court, the appellant did not raise any objection at the trial Court. So, he cannot do so on appeal.”
The proper time to object or protest against irregularity in the mode of preferring a charge or in the presentation of a charge is either at the time of the application to prefer the charge or when the charge is being read and explained to an accused defendant, and before he takes his plea; he cannot do so thereafter and definitely not in the appellate Court – Okewu Vs Federal Republic of Nigeria (2012) 9 NWLR (Pt. 1305) 327 at 352E, Osareren Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1627) 221, Ameh Vs State (2018) 12 NWLR (Pt 1632) 99, John Vs State (2019) LPELR 46936(SC) and Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587. The restatement of this position of the law was made by the Supreme Court in Attah Vs State (2010) 10 NWLR (Pt 1201) 190 thus:
“In any event, the appellant ought to have complained against the exercise of the discretion by the trial judge to grant the application to prefer the charge before the trial and not when the trial was concluded and, on an appeal, the last Court of resort, the Supreme Court. At the trial, evidence was adduced by the prosecution witnesses which was believed by the trial judge that the appellant(s) committed the offences charged. In my view, such a complaint can only be valid before the trial and accordingly, where an accused person consented to his trial after even faulty exercise of discretion to prefer a charge, he cannot after the conclusion of the trial raise the complaint. In my view, it is too late.”

Further, it is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court. An appellant cannot contest an appeal on an issue not raised in the lower Court and he cannot set up a new case on appeal; he must be consistent in stating his case – Iliyasu Vs State (2014) 15 NWLR (Pt. 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR 49568(SC). This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Jigawa State delivered in Case No. JDU/11C/2003 by Honorable Justice Aminu Sabo Ringim on the 18th of March, 2005.

The Appellant, as the second accused person, was charged along with eight other persons with two counts of conspiracy to commit armed robbery and of committing armed robbery contrary to the provisions Sections 1(2)(b) and 5(b) of the Robbery and Firearms (Special Provisions) Act of 1990. The Appellant was alleged to have, with the eight other persons, on or about the 30th day of November, 2001 in Tsohuwar Gwaram in Gwaram Local Government Area of Jigawa State conspired to commit armed robbery and to have committed armed robbery by attacking one Alhaji Ibrahim Umaru of Durumin Dishe, Auyakawa, old Gwaram with dangerous weapons in his house, beating him up and making away with valuable properties, including the sum of N800,000.00. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called five witnesses and tendered the Hausa and English versions of the confessional statement of the Appellant in proof of its case against the Appellant and the Appellant testified as the second defence witness, sole witness, in his defence.

At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging on the two counts of conspiracy to commit armed robbery and of committing armed robbery. The Appellant was dissatisfied with the judgment and sequel to obtaining a twenty-one days extension of time to appeal from this Court on the 15th of November, 2018, he caused a notice of appeal dated the 30th of July, 2018 and containing three grounds of appeal to be filed on the 26th of November, 2018. The records of appeal were compiled and transmitted to this Court on the 7th of December, 2018.

The notice of appeal was subsequently amended with the leave of Court and the Appellant filed an amended notice of appeal dated the 10th of June, 2020 and containing four grounds of appeal on the 15th of June, 2020 and the notice of appeal was deemed proper by the Court on 1st of July, 2020. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 10th of June, 2020 on the 15th of June, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 4th of July, 2020, on the 5th of July 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions on the appeal.

Counsel to the Appellant distilled four issues for determination in the appeal and these were:
i. Whether the Appellant was rightly arraigned, tried, convicted and sentenced to death by the trial Court upon an application to prefer a charge dated the 3rd of June, 2003.
ii. Whether from the evidence adduced before the trial Court, the Respondent was able to prove the offence of conspiracy against the Appellant.
iii. Whether from the evidence adduced before the trial Court, the Court was right to have relied on the confessional statement of the Appellant to convict and sentence the Appellant.
iv. Whether the trial Court was right to have convicted and sentenced the Appellant despite several fundamental contradictions in the evidences of the first to the fifth prosecution witnesses.

In arguing the first issue for determination, Counsel to the Appellant stated that there is no proper charge in the records of appeal on which the Appellant was tried and convicted and that what is in the records of appeal is an application to prefer a charge and that it was on this application that the Appellant was tried and convicted. Counsel stated that there is a difference between an application to prefer a charge and a charge and that the lower Court was wrong to have assumed jurisdiction to try the Appellant on the basis of an application to prefer a charge, and without a formal charge, and he referred to the definition of the word “application” in the Oxford Advanced Learner’s Dictionary and to the meaning of “a charge” as defined by the Courts in the cases of Attah Vs State (1993) LPELR 598(SC) and Okoye Vs COP (2015) LPELR 70.

Counsel stated that an application to prefer a charge is a request for permission of the trial Court to prefer a charge against an accused defendant and that once the application is granted, its life span expires and the accused defendant would be arraigned on a formal charge. Counsel referred to the provisions of Section 185(b) of the Criminal Procedure Code and the cases of Gboko Vs State (2007) LPELR 8300(CA), Obasi Vs State (2012) LPELR 19950(CA) and FRN Vs Wabara (2013) LPELR 20083 in asserting what must accompany an application to prefer a charge, i.e. a copy of the charge, names of witnesses and proof of evidence to be relied on trial and stated that these affirm that a charge is different from an application to prefer a charge. Counsel stated that since there was no formal charge filed by the Respondent to invoke its jurisdiction, it was wrong for the lower Court to have assumed jurisdiction to try and convict the Appellant. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant and to nullify the entire proceedings.

In arguing the second issue for determination, Counsel echoed the definition and nature of the offence of conspiracy as explained by the Supreme Court in the cases of Omotola Vs State (2009) LPELR 2663(SC) and Awosika Vs State (2010) LPELR 44316(SC) and he thereafter traversed through the testimonies of the first to the fifth prosecution witnesses and stated that there was nothing in the testimonies suggesting that the Appellant conspired with the other co-accused persons to commit the offence of armed robbery for which he was tried, convicted and sentenced. Counsel stated that the evidence given by the first and second prosecution witnesses were contradictory while the third prosecution witness, a child of fifteen years of age when he testified, was not subjected to the test of understanding the nature of oath as required by the Evidence Act thus making his testimony inadmissible, and that even if the evidence was admissible, it was watery and shallow and not one the lower Court ought to have relied on.

Counsel stated that neither the fourth prosecution witness nor the fifth prosecution witness gave evidence to show that the Appellant conspired with anybody and that all that the Respondent relied on was the confessional statement of the Appellant. Counsel stated that the Appellant objected to the contents of the confessional statement and led overwhelming evidence debunking the allegation against him and of how he was forced to sign the confessional statement, but that the lower Court ignored the evidence. Counsel stated that the Respondent did not prove the offence of conspiracy and he urged the Court to resolve the second issue for determination in favour of the Appellant.

On the third issue for determination, reiterated his arguments on the second issue for determination and stated that the lower Court relied on unreliable pieces of evidence to convict the Appellant and thereby occasioned a miscarriage of justice. Counsel reiterated the six-way test that a confessional statement must be subjected to by a trial Court before relying on it, and as laid down in the cases of Nsofor Vs State (2004) 20 NSCQLR 74 and Yahaya Vs State (2016) LPELR 40254(CA), and he traversed through the testimonies of the prosecution witnesses and stated that there was no credible evidence led to satisfy any of the six tests. Counsel stated that the Appellant was arrested nine months after the armed robbery incident and that there was no evidence led linking him to the commission of the offence and that the Appellant led unchallenged evidence that he reported to the Police Station on his own after being informed by his father, upon a visit, that he was wanted and that this fact strongly supported the assertion of the Appellant that he knew nothing about and did not participate in the commission of the offence. Counsel stated that the lower Court was wrong in relying on the confessional statement to convict the Appellant and he urged the Court to resolve the third issue in favour of the Appellant.

With respect to the fourth issue for determination, Counsel reiterated his contentions under the second and third issues for determination and stated that it was clear that all the Respondent did in its investigation of the allegation against the Appellant was to threaten and beat the Appellant, write out a purported confessional statement and force the Appellant to sign same. Counsel stated that the evidence led by the Respondent did not meet the threshold of proof beyond reasonable doubt and he referred to the case of Umar Vs State (2019) LPELR 47617(CA) on the meaning of proof beyond reasonable doubt and the case of Yahaya Vs State supra on the indispensable ingredients that must be proved to sustain a charge of armed robbery. Counsel stated that the Appellant was never identified as one of the persons who conspired to commit and who committed the offence for which he was tried and that this was fatal to the case of the Respondent and he referred to the case of Yahaya Vs State supra. Counsel stated that the confessional statement relied upon by the lower Court did not satisfy the credibility tests and did not thus constitute evidence beyond reasonable doubt and he urged the Court to resolve the fourth issue for determination in favour of the Appellant.

Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and to discharge and acquit the Appellant of the two counts of offences charged.

In his response, Counsel to the Respondent distilled two issues for determination in the appeal. These were:
i. Whether there was proper arraignment and trial before the trial Court.
ii. Whether the learned trial Judge was right in holding that the Respondent had proved its case against the Appellant beyond reasonable doubt.

In arguing the first issue for determination, Counsel stated that the contention of Counsel to the Appellant that the Respondent did not present a proper charge against the Appellant before the lower Court as it did not file a charge but only an application to prefer a charge was a misconception and he proceeded to debunk all the case law authorities relied on by Counsel to the Appellant as being inapplicable in the present case. Counsel stated that the Respondent properly commenced the criminal proceedings in the lower Court against the Appellant and his co-accused persons in line with the provisions of Section 185 (b) of the Criminal Procedure Code Law of Jigawa State by filing an application to prefer a charge against them and that the records of appeal shows that the application was moved by a law officer acting on behalf of the Attorney General of Jigawa State and granted by the lower Court.

Counsel stated that this was done despite the fact that by the provision of Section 185 of the amended Criminal Procedure Code Law of Jigawa State, and as interpreted by this Court in the case of Muhammed Vs State (2014) LPELR-24623(CA), no such leave was required anymore by the Attorney General and his officers to prefer a charge in the High Court.

Counsel stated that the application to prefer the charge contained a list of the witnesses to be called by the Respondent and the summary of the evidence and that the Appellant was present and was represented by Counsel at the arraignment and that they both understood the charge the Appellant was standing trial for and neither of them raised an objection thereto. Counsel stated that it is settled that any formal defect in a charge must be raised immediately the charge is read to an accused defendant and he referred to the case of John Vs State (2019) LPELR-46936(SC). Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

On the second issue for determination, Counsel referred to the cases of Okanlawon Vs State (2015) 17 NWLR (Pt 1489) 445, Alufohai Vs State (2015) 3 NWLR (Pt. 1445) and Dele Vs State (2011) 1 NWLR Pt 1229) 508 in reiterating the three modes of establishing the guilt of an accused person and the cases Eke Vs State (2011) All FWLR (pt 566) 430, Abeke Vs State (2007) All FWLR (Pt. 366) 644 and Paul Vs State (2015) All FWLR (Pt. 778) 893 in re-echoing that the standard of proof required of the Respondent to sustain the charge against the Appellant is proof beyond reasonable doubt and not proof beyond all iota of doubt. Counsel stated that what these translated to was that the Respondent had to lead sufficient credible evidence to dispel the presumption of innocence that existed in favour of the Appellant and he referred to the case of Kolawole Vs State (2015) All FWLR (Pt 77) 864.

Counsel referred to several case law authorities in reiterating the ingredients of the offences of armed robbery and conspiracy and stated that in proof of the ingredients, the Respondent tendered the English and Hausa versions of the confessional statement of the Appellant as Exhibit 5 (b) (i) and (ii) and he proceeded to summarize the contents of the English version of the confessional statement. Counsel stated that the confessional statement was a clear admission by the Appellant that he committed the two offences and it was admissible and constituted sufficient ground to convict the Appellant and for this Court to resolve this appeal in favour of the Respondent, particularly more so as the Appellant did not object to tendering of the statement on the ground of involuntariness and he referred to several case law authorities including Arta Industries Nig. Ltd Vs NBCL (1998) 4 NWLR (Pt 546) 357, Ojeahere Vs Alakija (2011) 34 WRN 46 and Ojukwu Vs Onwudiwe (1984) 2 SC 15. Counsel stated that the attempt by Counsel to the Appellant to retract and deny the confessional statement in his arguments in his brief of arguments was futile and also his submission that the lower Court required corroboration and supporting evidence before relying on the confessional statement to convict the Appellant is incorrect. Counsel stated that it is trite law that a trial Court can rely on a direct and positive confession to convict an accused person without the need for corroboration and he referred to the unreported decision of this Court in Appeal No. CA/K/411/C/2014 – Habibu Vs The State delivered on the 13th of April, 2018 and the case of Kamila Vs State (2018) All FWLR (Pt 965) 1.

Counsel stated that aside from the unconditional confession of the Appellant to the commission of the offences, the uncontroverted and unchallenged evidence in the oral testimony of the first to the fourth prosecution witnesses established all the elements of the commission of the armed robbery and criminal conspiracy by the Appellant and that the evidence was like the rock of Gilbraltar, unshaken, unassailable, concrete, concise, convincing and compelling. Counsel stated that the Counsel to the Appellant did not cross-examine the first to the fourth prosecution witnesses and that it was trite law that evidence of a witness not challenged under cross-examination was deemed admitted and he referred to the case of Oforlete Vs State (2000) LPELR 2270(SC). Counsel stated that the lower Court made positive findings on the proof of all the ingredients of the offences of conspiracy and armed robbery by the Respondent and that it is not in the habit of this Court to interfere with such findings unless there is a substantial error on the part of the lower Court apparent on face of the records of proceedings and he referred to the cases of Attah Vs State (2009) 13 NWLR (Pt 1164) 284 and Kazeem Vs Mosaku (2007) 17 NWLR (Pt. 1164) 284. Counsel urged the Court to confirm the findings of the lower Court and to resolve the second issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same, affirm the judgment of the lower Court and uphold the conviction and sentence of the Appellant.

Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360.

In this wise, and reading through the records of appeal, particularly the notes of evidence, the final addresses of Counsel to the parties and the judgment of the lower Court, as well as the notice of appeal and the above summarized arguments of Counsel to the parties in this appeal, this Court agrees with Counsel to the Respondent that there are only two issues for determination in the appeal and these are:
i. Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the failure of the Respondent to file a separate charge sheet apart from that engrossed on the application to prefer a charge.
ii. Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

All the arguments of Counsel to the parties shall be considered and resolved under these two issues for determination. The two issues for determination will be considered seriatim.

Issue One
Whether the arraignment, trial, conviction and sentence of the Appellant by the learned trial Judge were not a nullity due to the failure of the Respondent to file a separate charge sheet apart from that engrossed on the application to prefer a charge?

The records of appeal show that the Respondent commenced the action against the Appellant in the lower Court by filing an application to prefer a charge dated the 3rd of June, 2003 against him and his co-accused persons. The application contained on its face the request for leave to prefer a charge, the two count charge of conspiracy to commit armed robbery and armed robbery against the Appellant and his co-accused persons, the list of witnesses to be called and the summary of the evidence of each witness. The records of appeal show that when the matter came up before the lower Court on the 17th of March, 2004, the Appellant and his co-accused persons were present and they informed the lower Court that they had no legal practitioner of their choice to represent them and whereupon the lower Court assigned a legal practitioner from the private Bar, a Barrister Ibrahim Mohammed Dabi, the brief to defend the Appellant and his co-accused persons and the learned Counsel accepted the brief and stated that he was ready for the case as mentioned.

The records show that the lower Court heard and granted the application to prefer the two count charge, without objection from the Appellant or his Counsel, and it thereafter directed that the two count charge contained on an Information Charge Sheet dated the 3rd of June, 2003 be read to the Appellant. The records show that the two counts of offences were read to the Appellant as the second accused person and when he seemed perfectly to understand same, pleaded Not Guilty and the matter was adjourned for trial. All these were done without any objection from the Appellant or from his Counsel. The matter proceeded to trial and the Appellant and his Counsel participated fully in the trial up till the delivery of judgment by the lower Court.

Now, an arraignment involves the taking of the plea of an accused defendant. The plea is an accused defendant’s formal response of guilty or not guilty or no contest to a criminal charge. It is the means by which an accused defendant joins issues with the State on a criminal charge.

The Courts have, in the interpretation of the laws on criminal prosecution, laid down some essential requirements that must be satisfied for there to be a valid arraignment and these are (a) the defendant must be placed before the Court unfettered unless the Court shall see cause otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; (c) it must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the defendant is entitled by law to service of a copy of the information the Court is satisfied that he has in fact not been duly served. See Kajubo Vs State (1988) 1 NWLR (Pt 73) 721, Olabode Vs State (2009) 11 NWLR (Pt 1152) 254, Temitope Vs State (2011) 6 NWLR (Pt. 1243) 289, Olowoyo Vs State (2012) 17 NWLR (Pt 1329) 346, Federal Republic of Nigeria Vs Kayode (2020) 1 NWLR (Pt 1706) 430.

It is not the contention of Counsel to the Appellant that the above stated requirements of a valid arraignment were not complied with within the lower Court. In other words, Counsel to the Appellant conceded that the Appellant was placed before the lower Court unfettered and that the charge was explained to him to the satisfaction of the lower Court by the Court Registrar and in the language that the Appellant understood and that the Appellant was called to enter a plea and which the Appellant did. The grouse of Counsel is that there is nothing in the records of appeal showing that the application to prefer a charge was accompanied by a separate charge sheet as required by law and from which the two counts of offences ought to have been read and explained to the Appellant, and that the two counts of offences read and explained to the Appellant were those engrossed on the face of the application to prefer a charge. The contention of Counsel to the Appellant was on the procedure by which the charge was preferred against the Appellant and his co-accused, that the application to prefer a charge was not accompanied by a required document; the charge sheet.

This contention of the Counsel to the Appellant is doubtful in view of the order made by the lower Court upon the grant of the application to prefer the charge, i.e. that the “Information Charge Sheet dated 3/6/03 is hereby ordered to be read to each and every accused person.” This presupposes that there was an Information Charge Sheet, other than the application to prefer a charge, before the lower Court. It is true that this said “Information Charge Sheet” does not form part of the records of appeal. Now, assuming that the contention of Counsel to the Appellant is indeed correct, the records of appeal show, as stated above, that the Appellant was present in the lower Court on the day the application to prefer the charge was taken and granted and he was represented by Counsel. Neither the Appellant nor his Counsel objected to the application to prefer the charge and neither did they object to the two counts charge when it was read and explained to the Appellant after the lower Court granted the application to prefer the charge and/or any time thereafter either throughout the trial or in the final address. It is being raised in this Court for the first time.
The law is that by not raising an objection either to the application to prefer the charge and/or to the two count charge at the time it was read to him, the Appellant acquiesced with the procedure used in preferring the charge against him, and that, having done so, he cannot now be heard to complain that the procedure was irregular – Uwaekweghinya Vs State (2005) 9 NWLR (Pt 930) 227, Oguno Vs State (2013) 15 NWLR (Pt. 1376) 1, Baalo Vs Federal Republic of Nigeria (2016) 13 NWLR (Pt. 1530) 400, Adama Vs State (2018) 3 NWLR (Pt. 1605) 94, Shafiu Vs State (2019) LPELR 47923(CA). Matters of procedural irregularity must be raised by a party in the lower Court at the earliest opportunity, otherwise he will be foreclosed from raising it again. See Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387. In Oko Vs The State (2017) 17 NWLR (Pt. 1593) 24 at 69, the Supreme Court held that:
“A party who did not object to a procedural irregularity at the trial Court would not be allowed to do so at the appellate stage of the proceeding. In this case, if there was any irregularity in the procedure relating to the written addresses at the trial Court, the appellant did not raise any objection at the trial Court. So, he cannot do so on appeal.”
The proper time to object or protest against irregularity in the mode of preferring a charge or in the presentation of a charge is either at the time of the application to prefer the charge or when the charge is being read and explained to an accused defendant, and before he takes his plea; he cannot do so thereafter and definitely not in the appellate Court – Okewu Vs Federal Republic of Nigeria (2012) 9 NWLR (Pt. 1305) 327 at 352E, Osareren Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1627) 221, Ameh Vs State (2018) 12 NWLR (Pt 1632) 99, John Vs State (2019) LPELR 46936(SC) and Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587. The restatement of this position of the law was made by the Supreme Court in Attah Vs State (2010) 10 NWLR (Pt 1201) 190 thus:
“In any event, the appellant ought to have complained against the exercise of the discretion by the trial judge to grant the application to prefer the charge before the trial and not when the trial was concluded and, on an appeal, the last Court of resort, the Supreme Court. At the trial, evidence was adduced by the prosecution witnesses which was believed by the trial judge that the appellant(s) committed the offences charged. In my view, such a complaint can only be valid before the trial and accordingly, where an accused person consented to his trial after even faulty exercise of discretion to prefer a charge, he cannot after the conclusion of the trial raise the complaint. In my view, it is too late.”

The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same – Shaibu Vs State (2017) 16 NWLR (Pt 1592) 396, Ewugba Vs State (2018) 7 NWLR (Pt. 1618) 262, Saliu Vs State (2018) 10 NWLR (Pt 1627) 251, Awusa Vs Nigerian Army (2018) LPELR 44377(SC), Jibrin Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt 1636) 229, Osho Vs State (2018) 13 NWLR (Pt 1637) 474. There is nothing on the records showing that the Appellant sought for and obtained the leave of Court to raise this present contention in this appeal.
Thus, whichever way, the contention of the Appellant in this appeal against the way and manner the charge was preferred against him in the lower Court is inapposite in the circumstances of this case. The first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt?

The Appellant, as the second accused person, was charged along with eight other persons with two counts of conspiracy to commit armed robbery and armed robbery. The Courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Ofordike Vs State (2019) LPELR 46411(SC), Shola Vs State (2020) 8 NWLR (Pt. 1727) 530, Opeke Vs State (2021) 1 NWLR (Pt 1758) 570, Sani Vs State (2021) 5 NWLR (Pt 1770) 502 and Igwe Vs People of Lagos State (2021) 7 NWLR (Pt 1776) 425.

Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Ajuluchukwu Vs State (2014) 13 NWLR (Pt. 1425) 641, Akogwu Vs State (2018) 3 NWLR (Pt 1605) 137, Saminu Vs State (2019) LPELR 47622(SC), Martin Vs State (2020) 5 NWLR (Pt 1716) 58 and Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.

Proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design –Tanko Vs State (2008) 16 NWLR (Pt 1114) 597, Adeyemi Vs State (2018) 5 NWLR (Pt 1613) 482, Olakunle Vs State (2018) 6 NWLR (Pt 1614) 91, Ayinde Vs State (2019) LPELR 47835(SC), Ngbede Vs Nigerian Army (2021) 3 NWLR (Pt 1762) 1 and Igwe Vs People of Lagos State (2021) 7 NWLR (Pt. 1776) 425.

The proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt. 1329) 251 and Jimoh Vs State (2014) 10 NWLR (Pt 1414) 105, Agugua Vs State (2017) 10 NWLR (Pt 1573) 254. In considering the complaints of the Appellant in this appeal therefore, this Court will start with the findings made by the lower Court on the substantive offence of armed robbery, and from there consider whether the charge of conspiracy was properly sustained by the Respondent.

Now, it is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.

It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Isah Vs State (2018) 8 NWLR (Pt. 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State(2019) 13 NWLR (Pt. 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt. 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

It is trite that for a prosecution to secure a conviction for armed robbery, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that there was robbery or series of robberies; (ii) that the robbery was an armed robbery carried out with firearms or offensive weapons; and (iii) that the person charged with the offence was one of the robbers or implicated therein. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of armed robbery would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Dawai Vs State (2018) 5 NWLR (Pt. 1613) 499, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453, Amos Vs State (2018) LPELR 44694(SC), John Vs State (2019) LPELR 46936(SC), Ayinde Vs State (2019) LPELR 47835(SC), Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391.

The lower Court found that the Respondent led credible evidence to prove the three ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. In other words, the lower Court found that on or about the 30th day of November, 2001 in Tsohuwar Gwaram in Gwaram Local Government Area of Jigawa State one Alhaji Ibrahim Umaru of Durumin Dishe, Auyakawa, old Gwaram was indeed robbed, that the robbery was carried out with offensive weapons, and that the Appellant participated, with other persons, in the robbery. The Appellant has not contended, in this appeal, against the findings of the lower Court that there was a robbery and that the robbery was an armed robbery carried out with offensive weapons. These findings are conclusive and binding on the parties in this appeal and cannot be interfered with by this Court – Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt 1475) 119, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587.

The contention of the Appellant in this appeal is against the finding of the lower Court that he was one of the robbers who participated in the robbery. It is settled law that in criminal trials, the guilt of an accused person for or the fact of his participation in the commission of the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Philip Vs State(2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391 and Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587.

Reading through the records of appeal, it is obvious that the Respondent relied on the confessional statement of the Appellant in proving the fact of his participation in the armed robbery and this was on this basis upon which the lower Court found the Appellant guilty and convicted him. The confessional statement of the Appellant was tendered by the fourth prosecution witness, a Corporal Musa Isa, and he testified that he was a member of the team that investigated the case against the Appellant and his co-accused persons and that he recorded the statements of the seven of the accused persons, including the Appellant. He gave evidence that he informed the Appellant of the charge against him and cautioned him and that the Appellant thumb printed and thereafter voluntarily volunteered his statement in Hausa language and that he recorded the statement in Hausa language.

He testified that he realized that the statement was confessional and he thus took the Appellant alone to his superior officer, Mr. A. G. Hassan, who read over the statement to the Appellant in Hausa language and asked the Appellant if that was the statement he made and if it was made voluntarily and the Appellant answered in the affirmative. He gave evidence that the superior officer endorsed the statement and that the Appellant thumb printed and he signed as the recorder and that the statement was later translated into English language. The witness tendered the Hausa and the English versions of the statement as Exhibits 5(b)(i) and (ii) respectively.

The Hausa version of the confessional statement of the Appellant, Exhibit 5(b)(i), carried on its face the words of caution and which was duly thumb printed by the Appellant and it shows on its face that it was also thumb printed at the end of the recording by the Appellant and the recording officer and it carried the endorsement and signature of the Senior Police Officer. The English version of the statement, Exhibit 5(b)(ii), read, in part, thus:
“… I could remember I was first introduced into robbery operation about three years ago by one Sani Sabo (m) of Barebar Qrts at Old Gwaram. I could remember one day I met with him inside old Gwaram town, he told me that he … to see me in his house and today is about one year ago, and he told me that if I am coming I should wait until One O’clock to two O’clock in the midnight and actually I met him at the very time he requested, I met him in the frontage of his house near one mosque at old Gwaram, … from there he went inside his compound and returned back and asked me to go. We followed behind old Gwaram … the motor park, when reaching a point near motor garage we met with another people about 17 of them. … I know some while the others I forgot their names, the ones I can recall they are as follows: (i) Abdullahi Bala, (ii) Shuaibu Idris Boka, (iii) Yahaya Ali, (iv) Ali Mohammad, (v) Maigoro Ali, (vi) Yakubu Babe, (vii) Kamal Mohammed, (viii) Adamu Abubakar, (ix) Audu Umaru Gulabe, (x) Danliti Audu, (xi) Myself, Auwalu Nadabo Dan Ashaka, then (xii) Sani Sabo, and that time was about 0200hrs. Later we jointly went to Durumin Drive Qrts into one Alhaji Ibrahim for robbery operation, and we reached to the said Alhaji Ibrahim around few minutes after two and those that entered the inside the compound are (i) Yakubu Babe, (ii) Maigoro Ali, (iii) Ali Mohammed, (iv) Shuaibu Idris alias Boka and (v) Yahaya Ali and they all entered through the fence while all of us we are outside the house. After the operation, they came out with money inside white sack but I cannot tell the actual amount of it. We then go behind old Gwaram near Mango tree plantation, and divided the money and it was Yakubu Babe and Sani Sabo divided the said money. Sani Sabo gave me my share, the sum of four thousand five hundred Naira (N4,500) and he also promised me that he will add more to me, but he did not fulfill his promise later. And those armed with arms during the operation are (i) Yakubu Babe who was armed with a police rifle (G3), (ii) Sani Sabo, (iii) Shuaibu Idris Boka and Yahaya Ali, all armed with a locally made gun…”
When the statements were tendered, Counsel to the Appellant only objected in respect of the contents of the statements, not on the ground of involuntariness, and they were admitted in evidence and the lower Court noted in the records of proceedings that the contents of the statements were read and explained to the Appellant and that the Appellant stated that he understood them very well. The fourth prosecution witness was not cross-examined by Counsel to the Appellant on the making and recording of the confessional statement of the Appellant. In his oral testimony in his defence, the Appellant as the second defence witness denied participating in the armed robbery and he gave evidence that he was tortured and beaten in order to make him confess to committing the offence and that he refused to make any such confession and he refused to sign a certain paper brought to him for signature. In all his evidence, however, he made no direct reference to the confessional statement tendered by the Respondent and he did not contest the making of the statement or its contents and did not contend against it. The Appellant made no connection between his alleged beating and torture and the confessional statement tendered by the Respondent; in fact, as stated earlier, he did not challenge the confessional statement on the ground of involuntariness when same was being tendered.

Counsel to the Appellant berated the lower Court for relying on the confessional statement to convict the Appellant on the ground that there was no corroborative evidence in the testimonies of the prosecution witnesses showing that the contents of the confessional statement was plausible and true. Firstly, as stated above, the records of appeal show that at no time during the cross-examination of the fourth prosecution witness did the Counsel to the Appellant put the witness to task on whether or not the Appellant made the confessional statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant will be believed and any subsequent suggestion otherwise by the Appellant or his Counsel is to be treated as an afterthought – Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Patrick Vs State (2018) LPELR 43862(SC), Ifedayo Vs State (2018) LPELR 44374(SC), Dahiru Vs State (2018) LPELR 44497(SC), Ola Vs State (2018) LPELR 44983(SC), Yusuf Vs State (2019) LPELR 46945(SC). In Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Achike, JSC, made the point thus:
“… where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. … After all, the noble art of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”

Secondly, and very importantly, the records of appeal show that in his testimony in his defence before the lower Court as the second defence witness, the Appellant made no reference to the confessional statement; he did not deny making the statement, he did not contest its contents or his signature thereon and neither did he contradict the testimony of the fourth prosecution witness on the making of the statement. This was after the contents of the statement had been read to him in open Court and he fully understood same. It is settled law that during a trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt. 1329) 251.

The Appellant did not raise and/or establish any of these situations in his evidence before the lower Court. All that the Appellant did in his testimony was to give evidence inconsistent with the contents of the confessional statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360 and Mahmuda Vs State (2019) LPELR 47974(CA). In the instant case, the Appellant did not offer any explanation for the inconsistency.
It is not in contest that the above reproduced contents of the confessional statement are positive, direct and unequivocal on the part played by the Appellant in the commission of the armed robbery. Additionally, the lower Court found that the confessional statement was free, voluntary and properly made and this finding has not been challenged on this appeal. There was thus nothing presented by the Appellant to warrant the need for the lower Court to look for corroborative evidence, outside the confessional statement – Osung Vs State (2012) 18 NWLR (Pt 1332) 256. The law is that where an accused person confesses to an offence in his extra-judicial statement and had no objection to the statement being tendered and admitted in evidence and did not lead any cogent evidence in his testimony in Court contesting the making of the statement, there would be no need to look for evidence outside the confession anymore – Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Igba Vs State (2018) 6 NWLR (Pt 1614) 44, Essien Vs State (2018) 6 NWLR (Pt 1614) 167, Fulani Vs State (2018) LPELR 45195 (SC), Hamza Vs State (2019) LPELR 47858(SC) or (2019) 16 NWLR (Pt 1699) 418, Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391 at 410G-H.
Once a confessional statement is direct, positive and unequivocal, a trial Court is entitled to convict on it so long as it is satisfied of its truth, even without corroboration – Idoko Vs State (2018) 6 NWLR (Pt. 1614) 117, Alao Vs State (2019) 17 NWLR (Pt. 1702) 501, State Vs Ahmed (2020) LPELR 49497(SC). In Ogu Vs Commissioner of Police (2018) 8 NWLR (Pt 1620) 134, the Supreme Court made the point thus:
“Of all methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactory proved, is the most potent of all coming as it were, “from the horse’s mouth”. A free and voluntary confession of an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further corroboration to warrant a conviction …”

Going further and assuming that the Appellant presented a situation that necessitated the need for corroborating facts of his confessional statement, what is required is that before the Court would believe and act on the confession, it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Ofordike Vs State (2019) LPELR 46411(SC), Mohammed Vs State (2019) LPELR 46420(SC), Saminu Vs State (2019) LPELR 47622(SC), State Vs Sa’idu (2019) 10 NWLR (Pt 1680) 308, Alao Vs State (2019) 17 NWLR (Pt 1702) 501.

The records of appeal show that the lower Court recognized these tests and that it subjected the contents of the confessional statement of the Appellant to the tests and it found adequate corroborative facts in the testimonies of the first, second and third prosecution witnesses confirming the truth of the confessional statement. It is correct, as found by the lower Court, that the testimonies of the first, second and third prosecution witnesses, which were evidence outside the confession of the Appellant, corroborated the contents of the confessional statements and they show the confession to be true. It is obvious from the facts and circumstances of this case that the Appellant had the opportunity of committing the offence and that the sequence of events as narrated in the confessional statement were possible and the facts in the confessional statement were in line with the unchallenged evidence of the first, second and third prosecution witnesses. This Court cannot thus fault the reliance placed on the confessional statement of the Appellant by the lower Court.

The contents of the confessional statement support the finding of the lower Court that the Appellant was one of the participants in the robbery in question. The Respondent thus led cogent and credible evidence to sustain the charge of armed robbery against the Appellant and the conviction of the Appellant for the offence of armed robbery by the lower Court was on firm ground and cannot be tampered with by this Court.

This takes us back to the offence of conspiracy to commit the armed robbery. In convicting the Appellant and his co-accused persons for conspiracy, the lower Court stated in the judgment thus:
“… I would like to emphasis here that by virtue of the revelations contained in the respective confessional statements of the accused person … the following facts have been proved by the prosecution beyond reasonable doubt, …
The meeting of the minds of the accused persons, i.e. as they met and constituted themselves in a gang before finally unleashing terror in the house of Alhaji Ibrahim. Here it is proved that the 1st accused Danliti Audu, in his confessional statement, Exhibit 5(a) said one Yakubu Babe briefed him of the robbery and later he met others, including the remaining 8 accused persons. The 2nd accused, in Exhibit 5(b) said himself and Sani Sabo, who introduced him into robbery met with seventeen others, including all the remaining accused persons and later conducted the operation. The 3rd accused, Adamu Abubakar (Lalala) in Exhibit 5(c) said he met with all the accused persons and three others prior to the robbery operation. The 4th accused, Yahaya Ali, in Exhibit 5(d) said on the fateful day, all of them together with 3 others met at Dole Market in Old Gwaram when one Yakubu Babe suggested that they should go for the robbery operation. In Exhibit 5(e), the 9th accused said they met together with four others at Barebari Primary School before they proceeded to Old Gwaram for the robbery operation. The 8th accused in Exhibit 5(f) said he, along with 6th, 7th, 2nd and 3rd accused together with 3 others met and raided the house of PW1.
The 7th accused, Maigoro Ali in Exhibit 5(g) said when they met the 4th accused suggested robbing Alh. Ibrahim because he had money. In Exhibit 6(a), the 5th accused, Sha’aibu Idris (Boka) said he met other members of their gang at the outskirt of Gwaram… In view of the above, it is no gainsaying the fact that the prosecution has succeeded in proving that the criminal design to wit: armed robbery, is common to all the accused persons. The bottom line of the offence (conspiracy) is the meeting of the mind of the conspirators.”

It is obvious from the above excerpt of the judgment that the lower Court relied on the contents of the confessional statements of the other co-accused persons, co-conspirators, in making its finding and convicting the Appellant for the offence of conspiracy to commit armed robbery. The law is settled that in a conspiracy trial, evidence of what one accused person says in the absence of other conspirators is rendered admissible against such others on the basis that, if they all are conspirators, what one of them says in the furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators; it is an exception to the hearsay rule – Mumuni Vs State (1975) LPELR 1926(SC), Aigbe Vs The State (1976) 9-10 SC 77, Okosun Vs Attorney General, Bendel State (1985) LPELR 2500(SC), Kayode Vs State (2016) 7 NWLR (Pt. 1511) 199.

The reliance placed on the contents of the confessional statements of the co-accused persons of the Appellant on how they all met to go for the armed robbery operation in making the finding of conspiracy was thus proper. It is clear from the confessional statements of the Appellant and his co-accused persons that the attack unleashed on their victim was not spontaneous, but one on which they met, discussed and agreed to carry out. The inference of the presence of an agreement between the Appellant and his co-accused persons to commit the armed robbery drawn by the lower Court from the contents of the confessional statements was apposite and the finding on conspiracy cannot be interfered with by this Court.

The Appellant woefully failed to give this Court any reason to tamper or interfere with the findings and judgment of the lower Court. The appeal fails and it is hereby dismissed. The judgment of the High Court of Jigawa State delivered in Case No. JDU/11C/2003 by Honorable Justice Aminu Sabo Ringim on the 18th of March, 2005 is affirmed together with the conviction of and sentenced passed on the Appellant therein. These shall be the orders of the Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, HABEEB ADEWALE O. ABIRU, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the reasoning and conclusion reached by him in this appeal.

For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.

Appearances:

Baba Shehu Ahmed For Appellant(s)

Dr. Musa Adamu Aliyu, Attorney General Jigawa State, with him, Jamilu Muhammad, DRPS, Binta Yusuf Abubakar, CSC and A. H. Hassan, PSC, Ministry of Justice, Jigawa State. For Respondent(s)

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