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BALA v. STATE (2022)

BALA v. STATE

(2022)LCN/16045(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, September 06, 2022

CA/YL/185C/2021

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

 

Between

MUNBE BALA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

WHETHER AN ACCUSED PERSON CAN BE CONVICTED FOR AN OFFENCE WITH WHICH HE WAS NOT CHARGED

The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS. VS. STATE (1975) LPELR – 2406 (SC) PAGES 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P. 35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH V. FRN (2008) 13 NWLR (PT.1103) 1.
The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1.
The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F.
Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:
“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.”
See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C – E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D.
It is noted that at page 285 of the printed records of appeal, the learned trial judge in his Judgment found that counts 4 and 5 which dealt with illegal possession of firearms were charges against the 1st and 6th Defendants at the trial Court – (Afu Stephen and Munbe Bala respectively). The Appellant was not charged for illegal possession of firearms under count (4) and the trial Court’s finding also confirms this, as the Appellant’s name was not included under count (4) which is also in respect of illegal possession of firearms also charged in count (5). The Appellant was only charged under counts 1, 2, 3 and 5 of the information, conviction on count four (4) not charged was erroneous.
The Appellant was denied fair hearing under the present circumstances, it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended). The resultant effect is that the trial Court’s conviction and sentence of the Appellant on count 4, of illegal possession of firearms is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant.

METHODS THROUGH WHICH PROSECUTION PROVES BEYOND REASONABLE DOUBT

It is trite that it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt and in proving such guilt it could be done by any or a combination of any of the following means:
1. The confessional statement of the Defendant.
2. Circumstantial evidence, and
3. Evidence of an eye witness.
See OBIAKOR & ANOR VS. STATE (2002) LPELR – 2168 (SC) PP. 11- 12, PARAS. F – A, NWEZE VS. STATE (2017) LPELR – 42344 (SC) P. 14, PARAS. A – B, STATE VS. GWANGWAN (2015) LPELR – 24837 (SC) PP. 11 – 22, PARAS. G – D, YONGO VS. COMMISSIONER OF POLICE (1992) 4 SCNJ 113, BALOGUN VS. FRN (2021) LPELR – 53185 (SC) PP. 22 – 34, PARAS. E – A and YOHANNA DANJUMA VS. THE STATE (2019) LPELR – 47037 (SC) PP. 17 – 18, PARAS. E – D.-PER CHIDI NWAOMA UWA, J.C.A. 

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Adamawa State, presided over by Abdul-Azeez, J. (as he then was) delivered on 10th February 2021, in case No. ADSY/16C/2017 (hereafter referred to as the trial Court) in which the Appellant was the 6th Defendant.

The trial Court convicted the Appellant for the offences charged under counts 1, 2, 3, 4 and 5 of the information filed at the trial Court.

The background facts are that there were six defendants that stood trial over a five count information. The six defendants stood trial under counts 1 – 3, the 1st Defendant alone was charged under count 4 (Illegal Possession of Firearms) while the 6th defendant alone was charged under count 5 (Illegal Possession of Firearms).

​It was made out that the Appellant was arraigned and he pleaded not guilty to counts 1 – 5 of the information. It was alleged by the Respondent that the Appellant and five other Defendants committed two robberies, one on 29th August, 2015 and the other on 31st August, 2015. In proof of her case, the Respondent called eight witnesses, PW1 – PW8.

The PW1 (Chief Uduma) testified that he was able to identify the 2nd, 4th and 5th Defendants (not the Appellant) in respect of the alleged robbery of 29th August, 2015. PW2 (Fadana Baba) testified that he was informed that some robbers mounted a roadblock, he did not witness any robbery incident, similarly, the PW4 (ASP Samuel Kaletipwa) recorded the alleged confessional statements of the Appellant and that of the 1st Defendant, PW5 (Abba Jabo) recorded the alleged confessional statement of the 2nd and 3rd Defendants, PW6 (Inspector Abdullahi Yakubu) recorded the alleged confessional statement of the 4th Defendant, the PW7 (Woman ASP Nora Micloth) recorded the alleged confessional statement of the 5th Defendant while the PW8 (Inspector Williams Joshua) is the Exhibit Keeper at the State CID, Yola.

After a trial within trial conducted by the trial Court, the alleged confessions were tendered in evidence as follows:
(a) The Appellant’s statement admitted in evidence and marked Exhibits F1 – F6;
(b) The 1st Defendant’s statement admitted in evidence and marked as Exhibits A1 – A8;
(c) The 2nd Defendant’s statement admitted in evidence and marked as Exhibits B1 – B4;
(d) The 3rd Defendant’s statement admitted in evidence and marked as Exhibits C1 – C4;
(e) The 4th Defendant’s statement admitted in evidence and marked as Exhibits D1 – D4 and
(f) The 5th Defendant’s statement admitted in evidence and marked as Exhibits E1 – E3.

The Appellant testified in defence and tendered no Exhibit, denied committing any of the offences charged, testified that he was forced and tortured to say that he committed the alleged offences. On the alleged confession of the Appellant in Exhibits F1 – F6, the trial Court held that the prosecution proved its case beyond reasonable doubt, the guilt of the Appellant in respect of the offences charged. The Appellant was convicted for the offences charged under counts 1 – 5 of the information. It was made out that the Appellant was not charged under count 4 of the information but, was convicted on the said count, pages 7 and 291 of the printed records of Appeal. The Appellant dissatisfied with the decision of the trial Court, appealed to this Court.

​The Appellant formulated the following two (2) issues for the determination of the appeal thus:
1. “Considering that the trial Court convicted and sentenced the Appellant for an offence with which the Appellant was not charged, is the judgment not a nullity? (Distilled from Grounds 1 and 2 of the Notice of Appeal)
2. Was the trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery, conspiracy to commit armed robbery, and illegal possession of firearms, and convicted and sentenced the Appellant to death?” (Distilled from Grounds 1, 2, 3, 4, 5, 7, 8, 11, 14 and 15 of the Notice of Appeal)

The Respondent on her part formulated the following two issues:
1. “Whether the Respondent had proved the following charges against the Appellant, namely: (1) Conspiracy to commit Robbery, while armed with Offensive Weapons, (2) Armed Robbery and (3) Illegal Possession of Firearms.
2. Whether the Appellant was convicted and sentenced for an offence he was not charged with.”

In arguing the appeal, the learned counsel to the Appellant Fidelis Adewole Esq., adopted and relied on his brief of argument filed on 31/3/22, deemed properly filed and served on 11/5/22, as his oral submission in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

In arguing his issue one, it was submitted that the judgment of the trial Court is a nullity, the trial Court having convicted and sentenced the appellant for an offence with which the Appellant was not charged. It was argued that the trial Court convicted the Appellant for the offences charged under counts 1, 2, 3, 4 and 5 of the information when the said Appellant was not charged under count 4 of the information but, was convicted on same. It was submitted that the Appellant was neither charged under count 4 nor given an opportunity to defend himself on the said count which he was convicted for by the trial Court. Further, that an accused person cannot be convicted for an offence not charged. See SIMON EDIBO VS. THE STATE (2007) LPELR – 1012 (SC), and Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) hereafter referred to as “the Constitution”. Further, that the Appellant was denied fair hearing and the judgment a nullity. See WALTER WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43722 (SC), ANPP VS. INEC (2004) 7 NWLR (PT. 871) 16, DALOBA VS. RIPIYE (2010) LPELR – 4014 (CA) and UGBOJI VS. STATE (2018) 10 NWLR (PT. 1627) 346, 371, D – F.

On issue two, it was submitted that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the Constitution (as amended), Section 135 of the Evidence Act, 2011, STATE VS. ONYEUKWU (2004) ALL FWLR (PT. 221) 1388, 1425 and IGBELE VS. STATE (2004) 15 NWLR (PT. 896) 314, 344. The three methods to prove the guilt of the accused person in a criminal trial were given as follows:
(a) Reliance on a confessional statement of an accused person voluntarily made.
(b) By circumstantial evidence, and
(c) By direct evidence of eye witnesses.
See FAMUYIWA VS. THE STATE (2018) 5 NWLR (PT. 1613) 515 at 534, C; (2017) LPELR 43836 (SC), IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR VS. THE STATE (2014) LPELR – 23064 (SC), EMEKA VS. THE STATE (2001) 32 WRN 37, 59 and OKUDO VS. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236 D. It was submitted that none of the eight (8) witnesses called by the Respondent established a compelling case of armed robbery and conspiracy to commit armed robbery. Further, that the testimony of the PW4, and PW8 as well as Exhibits F1 – F6 did not establish the guilt of the Appellant beyond reasonable doubt in respect of conspiracy to commit armed robbery. The elements of the offence of armed robbery were given as follows:
(a) A robbery took place;
(b) The person who committed the offence of robbery was armed; and
(c) The accused was the person or one of the persons who committed the act of robbery.
See ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO VS. STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO VS. STATE (2014) 12 NWLR (PT. 1424) 613 and IKARIA VS. STATE (2014) 1 NWLR (PT. 1389) 638.

​The learned counsel to the Appellant conceded that the evidence of the PW1 established that the first alleged robbery occurred which resolved the first two requirements of the offence of armed robbery. It was submitted that there was no admissible evidence that was led in respect of the second alleged robbery in that the PW2 testified in respect of a robbery that occurred on September 31st, 2015, page 165, line 13 and page 166, line 18 of the printed records of appeal. On the bindingness of the records of appeal, reference was made to BASHIR VS. AUDU (1999) 5 NWLR (PT. 603) 433 and MANG VS. IBE (2000) 14 NWLR (PT. 688) 591. It was submitted that there was no armed robbery that occurred on 31st September, 2015 as testified by the PW2 who was not an eye witness, also the evidence of the PW3 which was said to be hearsay. Further, that the PW4 – PW8 were Police Officers who were not eye witnesses.

On whether the robbers were armed, the evidence of the PW1 was conceded to the effect that the robbers were armed in the first robbery incident but, not the second and that the evidence of the PW4 – PW8 was hearsay as they did not witness the alleged incidents of armed robbery.

On whether, the Appellant was among the robbers, it was submitted that the Appellant was not linked to the alleged robberies. It was submitted that the PW1 did not testify that he saw the Appellant or that the Appellant participated in the alleged robbery of the PW1. It was submitted that the evidence of an eye witness is usually reliable evidence, UDO VS. STATE (2018) 8 NWLR (PT. 1622) 462, 479, A – B but, where the eyewitness fails to nail an accused person to the scene of the crime, the accused should be acquitted, ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT. 303) 49, 82, C – D and RABIU VS. THE STATE (2010) 10 NWLR (PT. 1201) 127, 159 E – 160, B. Further, that the Court ought not to have fished for external evidence to link the Appellant to the alleged robbery. See UTB LTD VS. OZOEMENA (2000) LPELR – 10106 (CA). It was submitted that PW2 – PW3 and PW5 – PW7 were not eyewitnesses, their evidence was said to be hearsay. Further, that the PW5 only recorded the alleged confessional statement of the 2nd and the 3rd Defendants, pages 172 – 173 and 214 of the printed records of appeal. The PW6 recorded the alleged confessional statement of the 4th Defendant and the PW7 recorded the alleged confessional statement of the 5th Defendant. The PW4 recorded the alleged confessional statements of the Appellant and that of the 1st Defendant, pages 171 – 172, 215 – 216, Exhibits F1 – F6 are at pages 53 – 58 of the records of Appeal. While the PW8, who was the Exhibit Keeper did not produce any Exhibit before the trial Court, which created doubt in the case of the Respondent before the trial Court. It was submitted that the trial Court wrongly relied on Exhibits F1 – F6 in convicting the Appellant, the contents were summarized by the trial Court at pages 281 – 283 of the printed records of appeal. It was submitted that the Appellant resiled from his confessional statement which required independent corroboration distinct from the confessional statement itself; OKOH VS. THE STATE (2014) LPELR – 22589 H1 (SC), 27E – 28A, SALAWU VS. STATE (1971) NMLR 249 at 252, AKINFE VS. THE STATE (1988) 3 NWLR (PT. 85) 729 at 746, IFEDAYO VS. STATE (2018) LPELR – 44374 (SC) 32 – 33, EGBOGHONOME VS. C.O.P. (1993) 7 NWLR (PT. 306) 383, AFOLABI VS. STATE (2016) 11 NWLR (PT. 1524) 497, MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 303, AZABADA VS. STATE (2014) LPELR – 23017 (SC) 14G – 15D, KOPA VS. STATE (1971) 1 ALL NLR 151 and ONOCHIE VS. THE REPUBLIC (1966) NWLR 307 to the effect that where an accused person retracts his confession at the trial, the Court must look for some evidence outside the confession which would make the confession probable. See also STATE VS. MUHAMMED MASIGA (TSOLO) 2017) LPELR – 43474 (SC) 14D – 15C. It was argued that Exhibits F1 – F6 ought not to have been utilized alone to convict the Appellant, IMEPURUNGU VS. THE STATE (2019) LPELR – 47047 (CA) and MOHAMMED VS. THE STATE (2019) LPELR – 47045 (CA) decisions of this Court and division. The learned counsel to the Appellant submitted that for a Court to rely on a retracted confessional statement, the following questions must be answered:
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the confessional statement was corroborated;
(c) Whether the statement made in the confessional statement, so far as can be tested from surrounding facts, is true;
(d) Whether the accused person had the opportunity of committing the offence charged; and
(e) Whether the confession is consistent with other facts which have been ascertained, which have been proved.
See R VS. SYKES (1913) 8 CAR, P. 233 and AKPAN VS. STATE (1992) 6 NWLR (PT. 248) 439.

It was submitted that from the evidence led by the Respondent at the trial Court, all the above questions would be answered in the negative. Further, that the PW4 testified that he translated Exhibits F1 – F6 from Hausa Language to English Language but, from Exhibits F1 – F6, no Hausa version of the statement was tendered in evidence, it was argued that the law is that a statement be recorded in the closest possible language of the Appellant, which is Hausa Language also, the statement of an accused made to the police must be written in the language in which the accused made it, AJIDAHUN VS. STATE (1991) 9 NWLR (PT. 213) 33 at 41, E – G, QUEEN VS. SAPELE (1957) SC NLR 307, UDO VS. STATE (1964) 1 ALL NLR 21, R VS. OGBUEWU (1949) 12 WACA 483 and OKORO VS. QUEEN (1960) SC NLR 292 at 136. It was submitted that the trial Court ought not to have admitted and placed reliance on Exhibits F1 – F6, AZEEZ VS. THE STATE (2005) 8 NWLR (PT. 927) 312 at 326, G – H and DURU VS. STATE (1989) 4 NWLR (PT. 113) 24.

On conspiracy to commit armed robbery, the essential elements of the offence of conspiracy were given as follows:
“(a) That there was an agreement or conspiracy between the accused and others to prosecute an unlawful purpose;
(b) That in furtherance of the agreement or conspiracy; the accused took part in the commission of the robbery or series of robberies; and
(c) That the robbery or each robbery was an armed robbery.
See USUFU VS. THE STATE (2007) 3 NWLR (PT. 1020) 914 at 113 – 114H – I.

It was submitted that if the essential elements of armed robbery are not established, a charge of conspiracy to commit that armed robbery will fail automatically. SALAU VS. THE STATE, (2010) LPELR – 9106 (CA) and ARIBIGBOLA VS. THE STATE (2010) LPELR – 9164 (CA).

It was argued that there was no evidence of common intention between the Appellant and other persons. See OKEKE VS. STATE (1999) 2 NWLR (PT. 590) 247. The ingredients of common criminal intention were given as follows:
“(a) There should be at least two persons;
(b) They must have a common intention;
(c) The common intention must be aimed at the prosecution of an unlawful purpose.
(d) In the prosecution of an unlawful purpose, an offence is committed; and
(e) The commission of the offence was a probable consequence of the purposes in C and D – above.

It was submitted that the Respondent did not establish in evidence that the Appellant and the other Defendants knew each other prior to the commission of the alleged incident. See ALARAPE VS. THE STATE (2001) LPELR – 412 (SC).

It was argued that this Court has the power to expunge the inadmissible evidence from the records. IFARAMOYE VS. THE STATE (2017) LPELR – 42031 (SC) and ALADE VS. OLUBADE (1976) 2 FNR 10 at 13. It was submitted that the trial Court was wrong to have convicted the Appellant of conspiracy to commit armed robbery.

On the alleged possession of firearms, count 5, the essential elements were given as follows:
“(a) The accused was found in possession of firearms;
(b) The firearms were firearms within the meaning of the Robbery and Firearms Act; and
(c) That the accused had no licence to possess the firearm.
See ETIM VS. STATE (2020) LPELR – 51253.

It was argued that the Respondent failed to tender in evidence, the alleged firearm used. Also, PW8, the Exhibit Keeper, failed to tender any exhibits before the trial Court, page 218 of the printed records of appeal, it was alleged that the Respondent deliberately withheld evidence that would have been unfavourable to their case. See ZUBAIRU VS. STATE (2015) 16 NWLR (PT. 1486) 504 at 526, E – F. Further, that the trial Court convicted the Appellant on count 5 of the information based on the alleged confessional statements of the Appellant in Exhibits F1 – F6 which was said to have been erroneously admitted in evidence and relied upon, if jettisoned from the record, the conviction on the alleged possession of firearms cannot be sustained. We were urged to allow the appeal and set aside the judgment of the trial Court.

Further, that there is material contradiction in the case presented by the Respondent which should have been resolved in favour of the Appellant, MAGAJI VS. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) and AGBO VS. FRN (2013) LPELR – 22870 (SC). It was submitted that the evidence of the PW2 is unreasonable and incapable of grounding a conviction. We were urged to allow the appeal on the material contradictions in the Respondent’s case since there is no 31st September, 2015 in the Calendar and that the Appellant is entitled to benefit from the case of POPOOLA VS. STATE (2013) LPELR – 21443 (CA) 12C – G and JIMMY VS. THE STATE (2013) LPELR – 20333 (SC).

In respect of doubt in the age of the Appellant, it was submitted that from the age of the appellant, he ought not to have been sentenced to death, the trial Court found that he was a young person, page 292 of the records. GUOBADIA VS. STATE (2004) LPELR – 1344 (SC), (2004) 6 NWLR (PT. 869) 360.

The learned counsel to the Appellant conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. BAKARE VS. THE STATE (1987) 1 NWLR (PT. 52) 579 and WUAM VS. AKO (1999) 5 NWLR (PT. 601) 162. It was submitted that any doubt should be resolved in favour of the Appellant. UCHE VS. STATE (2015) LPELR – 24693 (SC) at 22 – 23, G – C, JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217 at 242 and JIBRIL VS. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 at 383. Further, that it is the duty of the prosecution to prove the guilt of the Appellant, ADEYEYE VS. STATE (1968) NMLR 48, OLUWATOYIN ABOKOKUYANRO VS. THE STATE (2016) LPELR – 40107 (SC) and AIGBADION VS. STATE (2000) 7 NWLR (PT. 666) 686 at 704B.

It was argued that the Appellant ought not to have been convicted on unfounded inadmissible evidence, NWOSU VS. THE STATE (1986) LPELR (2134) 1 at 21, EGBE VS. THE KING (1950) 13 WACA 105, EBRI VS. THE STATE (2004) 11 NWLR (PT. 885) 589 at 605, UKORAH VS. THE STATE (1977) 4 SC 167 at 177, OLEKAIBE VS. THE STATE (1990) 1 NWLR (PT. 129) 632 at 644 and SHEHU VS. THE STATE (2010) LPELR (3041) 1 at 10. It was submitted that an accused person is innocent until proved guilty, SAIDU VS. THE STATE (1982) 4 SC 41 at 69 – 70 and OMOPUPA VS. THE STATE (2007) LPELR (8571) 1 at 45.

On the part of the Respondent, N. J. Atiku Esq., the learned State Counsel 1, Adamawa State Ministry of Justice, in response adopted and relied on his brief of argument filed on 26/4/2022, deemed properly filed and served on 11/5/2022 as his oral argument in this appeal in urging us to discountenance the submissions of the learned counsel to the Appellant, dismiss the appeal and affirm the conviction and sentence of the Appellant. In arguing his issue one, it was submitted that the prosecution was under a duty to prove the guilt of the Appellant beyond reasonable doubt. In discharging this duty, it could be done through any or a combination of the following means:
1. The confessional statement of the Defendant.
2. Circumstantial evidence, and
3. Evidence of an eye witness.
See OKUNAYA VS. STATE (2020) 2 NWLR (PT. 1709) PAGE 76, DURU VS. STATE (2017) 4 NWLR (PT. 1554) AT 241 PARA. F – N and ABIRIFON VS. THE STATE (2013) 5 NWLR (PT. 1372) AT 596.

It was submitted that in respect of a charge of conspiracy to commit an offence, the following ingredients must be proved:
a. That there was an agreement between two or more persons to do, or cause to be done, an illegal act or an act which though not illegal by illegal means.
b. Where an agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
c. That each of the accused persons individually participated in the conspiracy.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

See ISMAIL VS. F.R.N. (2020) 2 NWLR (PT. 1707) PG. 90.

It was submitted that in proof of its case, the Respondent relied on the evidence of the PW4 (ASP Samuel Kaletipwa) who testified to the fact that he investigated the matter and recorded the statement of the Appellant (who was the 6th Defendant) which was admitted in evidence after a trial within trial, as Exhibits F1 – F6, Pages 150 – 155 of the printed records of Appeal. It was argued that one of the ways an offence or crime could be proved is through the confessional statement of the defendant, which was alleged to have been proved by the Respondent, that the Appellant conspired with others to commit the offence of armed robbery while armed with offensive weapons through his confessional statement which was voluntarily made. See F. R. N. V. MAMU (2020) 15 NWLR (PT. 1747), PAGE 313, BLESSING V. F.R.N. (2015) 13 NWLR (PT. 1475), PAGE 9 and ADAMU VS. THE STATE (2017) 16 NWLR (PT. 1592) PAGE 366.

On the alleged confessional statement of the Appellant, it was submitted that it went through a trial within trial when the Appellant retracted same at the trial, on the basis of involuntariness, the trial Court found that it was voluntarily made, Pages 172, 179, 203 – 211 of the printed records of Appeal. It was argued in the alternative that, even if the Appellant actually retracted his confession before the Court, it does not stop the Court from admitting the said document in evidence but, the Court would consider the weight to attach to it. See DARIO V. F. R. N. (2020) 10 NWLR PT. 1733, PG. 496.

On the issue that the trial Court ought not to have relied upon the statement made by the Appellant because the Hausa version was not tendered, it was argued that at the point of recording the Statement of the Appellant a word of caution was administered to him in English language and translated to him to which he endorsed, it meant that he agreed to the language used in recording his statement and cannot complain afterwards that he does not understand a particular language and that the version he understands was not tendered. See ASUQUO VS. THE STATE (2016) ALL FWLR (PT. 857), PAGE 540.

On the charge of Armed Robbery, it was submitted that the following must be proved:
a. That there was a robbery or series of robberies.
b. That the robbery or robberies were armed robberies.
c. That the accused person was the robber or one of the robbers.
See AYINDE VS. THE STATE (2019) 12 NWLR (PT. 1687) PAGE 413.

It was reargued that the PW4 investigated the matter and tendered Exhibits F1 – F6, Pages 150 – 155 of the records of appeal. The contents of the alleged confessional statements were reviewed. It was argued that by virtue of the contents of the confessional statements all the ingredients of the charge where proved by the Respondent.

In respect of the weapons used at the robbery that were not tendered in Court, it was submitted that PW8 gave the reasons why the Exhibits were not tendered in that the Exhibit keeper at the time the case was transferred to the state C.I.I.D Yola, was his predecessor who transferred the Exhibits to Abuja under the order of the Inspector General of Police while he faced trial at the Federal High Court. Further, that when he took over as an Exhibit keeper, the Exhibits were admitted in the Exhibit room and marked with the number CER/153/2015, the evidence of the PW8 is at page 218 of the printed records of appeal.

In response to the argument that the trial Court did not take cognizance of the Appellant’s age in its judgment, it was submitted that the Appellant was twenty nine (29) years old at the time the alleged offence was committed as could be seen from his confessional statement, pages 53, 150 and 154 of the printed records of appeal. It was submitted that the trial Judge’s comment at page 292 of the printed records that the Appellant was young was argued to be an obiter dictum and cannot be relied upon to formulate a ground of appeal as it did not form part of the ratio decidendi of the case. See AGBABIAKA VS. F.B.N. PLC. (2020) 6 NWLR (PT. 1719) PG. 86.

On the alleged contradiction in the evidence of the PW2, it was submitted that the mistake in the date is not material to the case of the Respondent as to when and if the Robbery took place. See KAWU VS. STATE (2020) 13 NWLR (PT. 1740). We were urged to discountenance the submissions of the Appellant on the alleged contradictions.

I have examined the issues formulated by the parties, I would utilize those formulated by the Appellant in determining the appeal. The learned counsel argued that the Appellant was convicted and sentenced for an offence with which he was not charged under count (4) of the charge, thus rendering the judgment of the trial Court a nullity. For ease of reference I would reproduce count four (4) of the charge below:
“COUNT FOUR
STATEMENT OF DEFENCE
Illegal possession of firearms contrary to Section 27(1)(b)(i) of the Firearms Act and punishable under Section 3 of the Robbery and Firearms (Special Provisions) Act Cap. R11 Law of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
AFU STEPHEN on or about the 1/9/2015 in Boshikiri village in Guyuk Local Government Area of Adamawa State within the Yola Judicial Division of this Honourable Court, had possession or control of a firearm i.e. one locally made single barrel gun without a license in contravention of the Firearm Act.”
(Underlining mine for emphasis)

From the above, it is clear that the Appellant was not charged under count 4 of the information but was convicted on the said count, at page 291 of the printed records of appeal. The trial Court held thus:
“Having resolved the two decoded issues in favour of the prosecution, I accordingly convict the Defendants as charged. 1st Defendant and 6th Defendants are convicted on counts (1), (2), (3), (4) and (5) respectively while 2nd, 3rd, 4th and 5th Defendants are convicted on counts (2), (3) and (4) respectively.”
(underlining mine for emphasis)

From the records of appeal, the Appellant was not charged under count (4) but, rather counts 1, 2, 3 and 5 of the information and as rightly argued by the learned counsel to the Appellant, the Appellant was not given any opportunity to defend himself on count (4). The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS. VS. STATE (1975) LPELR – 2406 (SC) PAGES 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P. 35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH V. FRN (2008) 13 NWLR (PT.1103) 1.
The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1.
The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F.
Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:
“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.”
See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C – E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D.
It is noted that at page 285 of the printed records of appeal, the learned trial judge in his Judgment found that counts 4 and 5 which dealt with illegal possession of firearms were charges against the 1st and 6th Defendants at the trial Court – (Afu Stephen and Munbe Bala respectively). The Appellant was not charged for illegal possession of firearms under count (4) and the trial Court’s finding also confirms this, as the Appellant’s name was not included under count (4) which is also in respect of illegal possession of firearms also charged in count (5). The Appellant was only charged under counts 1, 2, 3 and 5 of the information, conviction on count four (4) not charged was erroneous.
The Appellant was denied fair hearing under the present circumstances, it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended). The resultant effect is that the trial Court’s conviction and sentence of the Appellant on count 4, of illegal possession of firearms is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant.

Issue two is whether the prosecution proved the offences of conspiracy to commit Armed Robbery, Armed Robbery and illegal possession of firearms? It is trite that it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt and in proving such guilt it could be done by any or a combination of any of the following means:
1. The confessional statement of the Defendant.
2. Circumstantial evidence, and
3. Evidence of an eye witness.
See OBIAKOR & ANOR VS. STATE (2002) LPELR – 2168 (SC) PP. 11- 12, PARAS. F – A, NWEZE VS. STATE (2017) LPELR – 42344 (SC) P. 14, PARAS. A – B, STATE VS. GWANGWAN (2015) LPELR – 24837 (SC) PP. 11 – 22, PARAS. G – D, YONGO VS. COMMISSIONER OF POLICE (1992) 4 SCNJ 113, BALOGUN VS. FRN (2021) LPELR – 53185 (SC) PP. 22 – 34, PARAS. E – A and YOHANNA DANJUMA VS. THE STATE (2019) LPELR – 47037 (SC) PP. 17 – 18, PARAS. E – D.

On the charge of conspiracy to commit an offence, I had earlier in this judgment listed the ingredients that must be proved beyond reasonable doubt. The prosecution in proof of the charge of conspiracy to commit robbery while armed with offensive weapons against the Appellant at the trial Court, the PW4 (ASP Samuel Kaletipwa) investigated and recorded the statement of the Appellant which was admitted in evidence as Exhibits F1 – F6, pages 150 – 155 of the printed records of appeal. One of the ways an offence could be proved is through the confessional statement of the defendant. I will hereunder reproduce part of the Appellant’s confessional statement in respect of the charge of conspiracy to commit armed robbery while armed with offensive weapons. At pages 151 – 153 stated thus:
“On 29/8/2015 at about 8pm, Peter Eli invited for a meeting (sic) in his house when I arrived the house I met him together with Afu Steven, Emmanuel Kenneth and Koina Obadia all residents of Boshikiri. During the meeting, we all agreed to go out for robbery operation along Lafiya Savannah road I put on black jacket, blue jean and safety boot. I carried my locally made Pistol, Afu Steven went with a locally made single barrel gun, the rest carried cutlasses.”
(Underlining mine for emphasis)

The Appellant confessed to having committed the offence of conspiracy to commit armed robbery and armed robbery as charged. A confession is the best evidence where voluntarily made as in the present case where the Appellant retracted from his statement and the trial Court conducted a trial within trial and found the confessional statement to have been voluntarily made and admitted same in evidence as Exhibits F1 – F6. The confessional statement therefore rightly formed part of the evidence before the trial Court. In ABDULLAHI MUSTAPHA BERENDE VS. FEDERAL REPUBLIC OF NIGERIA (2021) LPELR – 54993 (SC) P. 67, PARAS. C – D His Lordship Okoro, JSC on the Status of a confessional statement held thus:
“It is trite law that short of an eye witness account, a confessional statement is the best and strongest evidence possible against an accused person, as long as it has passed the verification test. See OSENI VS. STATE (2012) 5 NWLR (PT. 1293) 351.”
See also KUSHIMO VS. THE STATE (2021) LPELR – 54999 (SC) P. 57, PARAS. B – D. The Appellant’s confessional statement was tested and verified by the trial within trial rightly conducted by the trial Court. See SOLOLA & ANOR. VS. STATE (2005) LPELR – 3101 (SC) PP. 38 – 39, PARAS. G – A. When a confession is well proved, it is the best evidence that could be produced, as in the present case, where the accused person admitted committing the offence charged. See EDAMINE VS. STATE (1996) LPELR – 1002 (SC) P. 12, PARA. B and SANI VS. STATE (2020) LPELR – 53905 (SC) P. 16, PARAS. A – B. There is nothing on record to show that the confessional statement was beaten out of the Appellant, he knew the consequences of his confession and gave a detailed and clear account of the role he played in the commission of the offences charged. At this stage, the issue of voluntariness of the Appellant’s confessional statement does not arise. There is no contrary evidence before the Court that the Appellant was not part of the conspiracy to commit armed robbery.

The learned counsel had argued that Exhibits F1 – F6 is a worthless document that ought not to have been relied upon because the Hausa version ought to have been tendered at the trial Court with the English version that was admitted in evidence. It is noteworthy that at page 163 line two (2) of the printed records of appeal, the records show (as noted by the trial Court) that the Appellant speaks English. Exhibits F1 – F6 was recorded in English language, even though translated to the Appellant in Hausa language. The Appellant clearly signed his confessional statement. The Appellant was also cautioned before he made his statement, he also signed below the caution. In Exhibit F1 at page 150 of the printed records of appeal, the Appellant stated that he had his Primary Education at Savannah Staff School from 1990 – 1996 and that after obtaining his First School Leaving Certificate he was admitted into Government Technical College, Yola from 1997 – 2002 and successfully obtained his Senior Secondary School Certificate (SSCE). Thereafter, he applied and was admitted into Modibbo Adama University of Technology, Yola to study Mathematics and Education and was successful. He was at his 500 level at the said University at the time he made his statement. The Appellant agreed to make his statement in English language and was well qualified to have done so from his level of education, a fifth year student of a tertiary institution. The learned counsel to the Appellant cannot rightly complain/insinuate that the Appellant does not understand English, that the language he understands is Hausa language, and that the version made in Hausa language ought to have been tendered alongside the English version, as rightly argued by the learned Respondent’s counsel. The translation into Hausa language to the Appellant by the PW4 was superfluous. There is nothing on record to show that at the level of education the Appellant had reached, he could not understand English language. The Appellant understood English language.

No doubt, it is constitutionally required that where an accused person does not understand English his statement must be recorded in the language he understands and later translated into English. See Section 36(6) of the Constitution of the Federal Republic of Nigeria (as amended). I have earlier stated in this judgment that the Appellant’s statement was made in English and he signed after the caution and also signed his statement. The Appellant can not turn around to complain that the Hausa Version of his statement was not tendered with the English version. I would ask: of what use would the Hausa version be? It would have made no difference to the version, stated and recorded in English. See QUEEN VS. ZAKWAKWA OF YARO (1960) INCC 8; NWALI VS. STATE (1991) 3 NWLR (PT. 182) 663. In Nwali’s case where the Appellant’s statement was recorded in Ibo and translated to English language, the Supreme Court held that since both versions were tendered in evidence, this Court could rely on the English version as the Appellant did not disown the statement in English as not being the correct version of what he said and was recorded in Ibo. The same would have applied here if both versions were tendered in evidence. The learned counsel to the Appellant has not disputed Exhibits F1 – F6 as not being the appellant’s statement. The argument or “quarrel” is that the Hausa version ought to have been tendered with the English version. See SAIDU VS. STATE (1982) LPELR – 2977 (SC) PP. 18-19, PARAS. E-D, IGBINOVIA VS. STATE (1981) LPELR – 1446 (SC) P. 17, PARAS. B – D and STATE VS. IBRAHIM (2019) LPELR – 47548 (SC) PP. 17 – 19, PARAS. C – A. There was no need or requirement of the law that the statement of an accused person who understands English, made and recorded in English should be tendered with the translated version made in another language. There was no need to have tendered the version of the statement made in Hausa language.

I earlier in this judgment listed the ingredients that need to be proved in respect of the offence of Armed Robbery against the Appellant. In Exhibit F1 – F6, the Appellant gave a detailed account of how he was armed with a locally made pistol when he went out to rob with his friends. The Appellant admitted his guilt in respect of the Armed Robbery.
In proof of the offence of armed robbery, as stated earlier in this judgment, the PW4 recorded the Appellant’s statement under caution and it was admitted in evidence as Exhibits F1 – F6, the Appellant admitted his guilt in his confessional statement when at pages 151 – 154 the Appellant partly stated thus:
“Afu Stephen also met me with the same issue of robbery. In the presence both of them convinced me to go out for robbery with them, Afu Stephen told me that his oga Alhaji Hassan gave him single barrel gun that I should meet the said Alhaji Hassan and told him that I will like to join Afu Stephen’s gang that he will give me gun. In July ending, I met Alhaji Hassan and told him what Afu Stephen told me. Alhaji Hassan gave me a locally made pistol with two cartridges. On 29/8/2015 at about 8pm Peter Eli invited for a meeting in his house when I arrived the house I met him together with Afu Stephen, Emmanuel Kenneth and Koina Obadiah all residents of Boshikiri. During the meeting we all agreed to go out for robbery operation along Lafia – Savannah Road. I put on black Jacket, blue jean and safety both (sic). I carried my locally made pistol. Afu Stephen went with locally made single barrel gun, the rest carried cutlasses. We mounted road block on a bridge between Lafia and Savannah Sugar company with a drum and big big stones. We first stopped a starlet car coming from Gombe direction with six occupants. We robbed the occupants of their six handsets and the sum of N9,500. I was given N1,800 and one Nokia Handset as my share. On 31/8/2015 at about 10pm, the same Group went back to the same sport armed as before. We blocked there trucks. The drivers when they saw the road block parked their trucks and ran inside the bush, one of the truck was conveying cement, the other one was conveying stock fish. We searched the vehicles and realized N11,200 – and four handsets. When we were returning home we met with vigilante group who fired gunshots twice at us. We all run inside guinea corn farm. I ran straight to our house. Between 7am – 8am I was inside (our) my room vigilante men came and met my father that I was among the people that block road and robbed people yesterday along Lafia-Savannah Road. My father took the vigilante men to my room and they arrested me and recovered the pistol from me. They also collected two handsets from me. i. e. the Nokia that I first got and my own personal Tecno handset. My colleagues namely – Peter Eli, Afu Stephen, Emmanuel Kenneth, Hassan Yusuf and Bobi Mabudi were also arrested and we were handed over to Airforce personnel who took us to Yola.”

In the Appellant’s additional statement he testified as follows:
“I wish to state further that the six handsets recovered during search in my room by C.I.D’s were the handsets we robbed on 31/8/2015 which we were yet to share. The mask, safety booth and blue jeans trouser were the items I wore during the robbery operations of 29/8/2015 and 31/8/2015 respectively. The electric counting beads belongs to victims of the robbery. The piece of cloth recovered was used by me in wrapping the pistol so that people do not see it.”

From the above reproduced portion of the Appellant’s confessional statement, all the ingredients of the armed robbery charge were satisfied. The Appellant gave details of the role he played and the type of arm he had during the operation. It is trite that an accused person can be convicted solely on his confessional statement as long as it is direct, positive and proved. In ACHABUA VS. STATE (1976) LPELR – 63 (SC) P. 8, PARAS. A-C, His Lordship Obaseki, JSC held thus:
“It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession. R.V. SKYES 8 CR APP R233, R.V. KANU 14 WACA 30, EDET OBOSI VS. THE STATE (1965) N.N.L.R. 119, PAUL ONOCHIE & 7 ORS VS. THE REPUBLIC 1966 NNLR 307 AND JIMOH YESUFU VS. THE STATE (1976) 6 SC. 167.”
See also KOPA VS. STATE (1971) LPELR – 1702 (SC) PP. 3-4, PARA. E, SAMA’ILA VS. STATE (2021) LPELR – 53084 (SC) P. 30, PARAS. B-F and UMAR VS. FRN & ORS (2021) LPELR – 53936 (CA) PP. 41 – 42, PARAS. C-A. A confession is an admission by an accused person that he committed the crime.

The learned counsel to the Appellant had faulted the Respondent’s case on the basis that the arms/weapons used during the operation were not tendered before the trial Court. The PW8, the Exhibit keeper explained the reason why he could not tender the recovered weapons as Exhibits at the trial Court. The reason being that the Exhibit keeper that admitted the weapons was standing trial at the Federal High Court Yola, at the time and was not available to produce the weapons that were said to have been transferred to the office of the Inspection General of Police in Abuja. The Exhibits were said to have been recorded and marked CER/153/2015. There is no reason to doubt, the evidence of the PW8.

On the other hand, it is not always necessary to tender the weapon of attack. In ESENE VS. STATE (2017) LPELR – 41912 (SC) P. 41, PARAS. A-E, his Lordship Ogunbiyi, JSC stated the position of the law thus:
“Further still and to show that the prosecution is not duty bound to produce the knife, there is no legal obligation on the prosecution to produce or tender the knife in evidence. The lower Court was clear and could not be faulted on this part when it held at page 148 of the record and said:-
“Let me mention here and now, that it is not the law, that the firearms, or the offensive weapons used must be tendered in proof by prosecution to commission of armed robbery. This issue has since been settled by the Supreme Court in case of FATAI OLAYINKA VS. THE STATE, 30 NSC Q B 149 AT PAGES 162 – 163”. It is a settled principle therefore that the failure of the prosecution to tender the knife used by the Appellant in attacking PW1 did not in any way water down the credible and unchallenged evidence that the Appellant committed armed robbery against PW1 on 23/12/2006.”
See WOWEM VS. STATE (2021) LPELR – 53384 (SC) PP. 54 – 55, PARAS. C – B, STATE VS. FADEZI (2018) LPELR – 44731 (SC) P. 27, PARAS. D – G, AYORINDE ABDULKABIR VS. THE STATE (2015) LPELR – 41841 (CA) PP. 36 – 37, PARAS. F – B and UMARU VS. STATE (2020) LPELR – 50005 (CA) PP. 40 – 42, PARAS. E – B.
There is no law requiring the tendering of the weapons of an alleged robbery to be able to establish the guilt of an accused person. In the present case, the weapons were recovered, recorded and marked with the Number CER/153/2014 and kept with the Exhibit keeper before same were transferred to Abuja under the order of the Inspector General of Police, this was the evidence of the PW8, which has not been refuted by the learned counsel to the Appellant. The Appellant in Exhibits F1 – F6 gave details of how he acquired the locally made pistol, what purpose it was for and how it was recovered by the vigilante group that came in search of the Appellant at his father’s house. The prosecution proved the armed robbery charge against the Appellant and the weapon need not have been tendered in evidence.

On the charge of illegal possession of firearms, the prosecution proved same through the Appellant’s confessional statement which gave details of the type of arms, a locally made pistol, the Appellant had on him at the time of the operation in the two armed robbery incidents of 29/8/2015 and 31/8/2015. As rightly submitted by the learned counsel to the Respondent, the evidence of the PW8, the Exhibit keeper confirmed that such a weapon (locally made pistol) existed, was received and marked as Exhibits. There is no evidence to the contrary.

At page 286 of the printed records of appeal, the trial Court held thus:
“The 6th Defendant too, it is beyond any doubt had a gun which he confessed to have been given by one Alhaji Hassan.

See Exhibits F1 – F4, F5 – F6 respectively. To this end, I find and hold that the prosecution is able to prove the offence of illegal possession of firearms against the 1st and 6th Defendants.”

I cannot fault the above view in respect of the Appellant who was the 6th Defendant at the trial Court. I am at one with the view of the trial Court. There was no evidence led by the Appellant to show that he had a license to possess the locally made pistol. The ingredients required to prove illegal possession of firearms was listed by the Supreme Court in, BILLE VS. STATE (2016) LPELR – 40832 (SC) P. 32, PARA A – E where His Lordship Rhodes-Vivour, JSC highlighted the ingredients to be proved by the prosecution for the offence of illegal possession of firearms to be established held that:
“In a charge of unlawful/illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, the prosecution proves the case beyond reasonable doubt if the following three ingredients are established. (a) that the accused person was found in possession of firearms; (b) that the firearm is within the meaning of the Robbery and Firearms (Special Provisions) Act; (c) that the accused person has no licence to possess the firearm. See MOMODU VS. STATE 2008 ALL FWLR (PT. 447) P. 67 STATE VS. OLADOTUN (2011) 10 NWLR (PT. 1256) P. 542.”
See also OKASHETU VS. STATE (2016) LPELR – 40611 (SC) PP. 16 – 17, PARAS. E – A and my earlier decision in THE STATE VS. ABDULMALIK ABIODUN & ANOR (2016) LPELR – 43750 (CA) P. 20, PARAS. B – E; (2018) ALL FWLR (PT. 926) P. 157.

The learned counsel to the Appellant had contended that the trial Court did not take into cognizance the age of the Appellant in its judgment. As rightly argued by the learned counsel to the Respondent, the age of the Appellant was not in issue at the trial Court. In Exhibits F1 – F6, the Appellant gave his age as 29 years which is far beyond the age an accused person would be responsible for any Criminal Offence committed.

The learned counsel to the Appellant had argued that there were contradictions in the prosecution’s case at the lower Court, reference was made to the evidence of the PW2 who testified that the second armed robbery incident took place on 31/9/2015 when September does not have 31 days in the Calendar, we were urged to hold that there was no second armed robbery incident and that the prosecution’s case was contradictory. To this, I would say that one must take judicial notice of the fact that September has thirty days, therefore there can not be any date such as 31/9/2015. Since it is on record from the extra-judicial statements of the Appellant and evidence adduced at the trial Court apart from the evidence of the PW2, it is clear that the second incident of armed robbery took place on 31/8/2015. I am of the firm view that the discrepancy in the date of the second incident as given by the PW2 is a slip or mistake which does not go to the root of the matter. For discrepancy or contradiction in evidence, in the case of ABOKOKUYANRO VS. THE STATE (2016) LPELR – 40107 (SC) PP. 25 26, PARAS. D – A, His Lordship Ogunbiyi, JSC stated the position of the law thus:
“The law is trite that where two or more pieces of evidence seem to contradict each other or vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. See the case of AYO GABRIEL VS. THE STATE (1989) 5 NWLR 457 AND UWAGBOE VS. STATE NCC 3, PAGE 636.”
See also OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 39 – 41, PARAS. E – A, minor discrepancies in dates will not destroy the credibility of the witnesses. Sometimes, where all the witnesses give identical testimony in respect of an incident or issue, there is the likelihood that the witnesses have been tutored. The 31/9/2015 date given by the PW2 as the date of the second incident is minor and did not affect the case of the prosecution. I discountenance the argument that the date as given meant that the second armed robbery incident did not take place.

Having held that the prosecution proved the offences of conspiracy to commit robbery, armed robbery and illegal possession of firearms. The trial Court was right to have convicted the Appellant as charged in counts (1), (2), (3) and (5). I resolve issue two against the Appellant. I affirm the decision of the trial Court in respect of the Appellant under issue two, the conviction and sentence in counts (1), (2), (3) and (5) of the charge.

In sum, having resolved issue one in favour of the Appellant and issue two against the Appellant, the appeal is allowed in part.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother, CHIDI NWAOMA UWA, JCA afforded me the privilege to read the draft copy of the lead judgment just delivered. My learned brother has exhaustively dealt with the issues contained in the lead judgment and I agree with the reasoning and conclusion arrived at that the appeal should be allowed in part. I also allow the appeal in part.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the opportunity of reading the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa JCA and I entirely agree with his reasons and conclusion that the appeal is allowed in part.

Appearances:

Fidelis Adewole, Esq. For Appellant(s)

N. J. Atiku, Esq. State Counsel I, Adamawa State Ministry of Justice. For Respondent(s)