DAVID v. STATE OF EKITI (2020)

DAVID v. STATE OF EKITI

(2020)LCN/14606(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Thursday, September 10, 2020

CA/EK/24C/2019

RATIO

PLEADINGS: INGREDIENTS TO PROVE FOR THE CHARGE OF CONSPIRACY TO COMMIT ARMED ROBBERY.

However, for the prosecution to succeed in the charge of conspiracy to commit armed Robbery, it must prove the following facts beyond reasonable doubt:
(a) That there was an agreement or confederacy between the accused and other to commit the offence.
(b) That in furtherance of the agreement or confederacy, the accused took part in the commission of the Robbery or series of robberies.
(c) That the robbery or each robbery was an armed Robbery. See: PER KEKERE-EKUN, JSC in OKOH Vs STATE (2014) LPELR-22589 (SC).
Also, it is well established that once agreement is shown to exist between the conspirators, evidence admissible against one conspirator, is equally admissible against other conspirators. See: GBENGA OSHO Vs. STATE (2018) ALL FWLR (Pt. 966) 250.
Worthy of note therefore is that the offence of conspiracy is consummated once the parties are ad idem on the manifestation of such intent even if in the long run, the conspirators reneged in the pursuance of their agreement. The offence of conspiring is usually planned and hatched in secrecy, therefore in proving it, direct evidence is not indispensable and so it is open to the trial Court to infer compliancy from the fact of doing things towards a common end. See: EMENEGOR Vs STATE (2009) 31 WRN 66 at 73 – 75, ADESINA Vs STATE (2010) 35 WRN 49 at 69.
The Appellant counsel made heavy weather on the allegation of conspiracy pressed against the Appellant in that the trial Court in its Judgment failed to thoroughly and critically examine the evidence on record. The prosecution failed to prove all the ingredients of the offence of conspiracy as required by law and consequently arrived at a perverse decision. It is also argued by the Appellant that the inference of conspiracy was drawn against the Appellant by the trial Court without any evidence of overt act.
It is well entrenched principle of law that the best evidence of conspiracy is usually obtained either from one of the conspirators or from instances. The overt act or omission is often the only evidence which translates into actus reus and the actus reus of each of the conspirators is often regarded as the only proof of criminal agreement to commit a crime which is what is called conspiracy. See: SAIDU HARUNA Vs STATE (2018) ALL FWLR (Pt. 969) 689 at 734 -735.
It must be worthy of note that conspiracy is an offence that is impossible of being committed by only one person. See: STATE Vs AJAYI (2016) ALL FWLR (Pt. 854) 1838 AT 1865 Paras D-F (SC), the offence is in the agreement between two or more person to carry out an unlawful act or carry out a lawful act in an unlawful Manner. See: OKANLAWON Vs STATE (2015) 7 MJSC 28 at 36. Given the very nature of conspiracy, as one to do with an unlawful act, it is rarely carried out in the open. That necessarily means that evidence in proof of it is suddenly direct and is rather more commonly gathered from circumstances disclosed in the evidence. See: OKOSUN Vs A.G of BENDEL STATE (1985) 3 NWLR (Pt. 12) 285 AT 291 – 292, 297 (SC).
In a charge of conspiracy, it is the duty of the prosecution to prove not only the indicatory nature of the offence but also the meeting of the minds of the accused persons to commit a particular offence. See: GBADAMOSI Vs STATE (1991) 6 NWLR (Pt. 196) 182.
However, where the record does not reveal any agreement on the part of the alleged conspirators, the charge is not made out See: ISHOLA Vs STATE (1972) 10 (SC) 63 at 76 – 77, STATE Vs SALAWU (2012) ALL FWLR (Pt. 614) 1 at 31 – 32 (SC), OLADEJO Vs STATE (1994) 6 NWLR (Pt. 348) 101 at 127.
Also, the first defendant (Lukman Olawale) made statements to the police during investigation and the two statements he made were tendered and admitted as Exhibits E & E1. In Exhibit E, the defendant said as follows:
“…Meanwhile, on 14/8/2016 at about 2000hrs along NTA Road Ado-Ekiti one Juwon David and I did conspired and block one Sgt. Olowoyeye Olumide with the aim of disposing him off his motorcycle with the use of some weapons such as cutlass and shovel, and during the course of struggling with us I used the cutlass to matchetted him on his head and hand during which he was severally injure and I later escaped from the scene with his motorcycle Bajaj…”
The offence of conspiracy can also be proved through circumstantial evidence that are strong, compelling, cogent and point irresistibly to the guilt of accused in a charge of crime and can also ground the conviction of the accused person. See: JUA Vs STATE (2010) 43 WRN 1 at 36. On the other hand, circumstantial evidence must in all cases be narrowly construed and examined as it is easily capable of being fabricated to cast suspicion on an innocent person. See: AHMED Vs STATE (2001) FWLR (Pt. 34) 438 (SC), MARIAGBE Vs STATE (1977) NSCC 130 at 133. These set of facts constitute a strong and compelling circumstantial evidence that there was an agreement between the Appellant and Juwon David (second defendant). From the contents of Exhibits E & E1, it is clear that the offence of conspiracy as charged has been proved beyond reasonable doubt. Per PAUL OBI ELECHI, J.C.A.

RATIO

PLEADINGS: THE COMMISSION OF A CRIME BY A PARTY MUST BE PROVED BEYOND REASONABLE DOUBT

In IGABELE Vs STATE (2006) 6 NWLR (Pt. 975) 100 @ 127 Paras. E-H, the Apex Court while emphasizing on this burden of proof in criminal cases stated as follows:
“Now, the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it and this is the law as laid down in Section 137 of the Evidence Ordinance, Cap. 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal.” However in the instant case, the Respondent is fully aware of the legal burden placed on her by law in Section 135 of the Evidence Act that the onus rests squarely on her to prove the guilty of the Appellant beyond reasonable doubts by establishing all the ingredients of the offence(s) pressed against the Appellant and that the onus do not shift. It is a well-established principle of law that for the prosecution to succeed in proving and sustaining an allegation of armed robbery, three ingredients must be contemporaneously proved. These are:
1. That there was a robbery
2. That the robbery was an armed robbery
3. That accused person took part in the robbery
See: ATTAH Vs STATE (2010) ALL FWLR (Pt. 540) 1224 at 1256, SOWEMIMO Vs STATE (2011) ALL FWLR (Pt. 599) 1064 at 1086. It is also a time-honoured principle of law that the guilt of an accused person can be proved by any of the following three ways. These are:
(1) By voluntary confessional statement of the accused persons.
(2) By circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him.
(3) By evidence of eye-witness or witnesses otherwise known as direct evidence. See: MICHAEL TAIYE Vs STATE (2018) ALL FWLR (Pt. 969) Pg. 737 at Pages 757-758; Paras. G-B, ADAMU Vs STATE (2018) ALL FWLR (Pt. 925) Pg. 48 at Pg. 79, Paras D-E. OMOREGIE Vs STATE (2018) ALL FWLR (Pt. 925) 1 at 17 Para. D, FAMUYIWA Vs STATE (2018) ALL FWLR (Pt. 919) 1 at 24 Paras. F-G. 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. This is because absolute certainty is impossible in any human endeavour including the administration of justice. Proof beyond reasonable doubt thus simply means, establishing the guilt of the defendant, with compelling and conclusive evidence to a degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See ADELEKE Vs STATE (2013) 16 NWLR (Pt. 1381) 556 and BABARINDE Vs STATE (2014) 3 NWLR (Pt.1395) 568.
This point was expressed by Denning J (as he then was) in MILLER Vs MINISTER of PENSIONS (1947) 2 ALL ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. If the evidence is as 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 is proved beyond reasonable doubt but nothing short will suffice.” It is a time-honoured of law that a free and voluntary confession by an accused person, if direct, positive and unequivocal and if satisfactorily proved is sufficient to ground a conviction. See: HARUNA Vs ATTORNEY GENERAL FEDERATION (2012) ALL FWLR (Pt. 632) 1617, ALARAPE Vs STATE (2001) ALL FWLR (Pt. 41) 1872.
Furthermore, in the case of IRENE NGUMA Vs A-G; IMO STATE (2014) 16 WRN Pg. 1 at Pages 24-25, Lines 45-5, the Supreme Court held as follows:
“A free and voluntary confession which is direct positive and properly proved is sufficient to sustain a conviction. Though desirable, corroborative evidence is not necessary. Once the Court is satisfied with its truth, it can safely convict on the basis of the confessional statement of an accused alone.” Per PAUL OBI ELECHI, J.C.A.

RATIO

PLEADINGS: MEANING OF FAIR HEARING.

What then is fair hearing? In the case of ISIYAKU MOHAMMED Vs KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424, ADEMOLA CJN, set the tone for what has now been generally accepted in Legal circles as the definition of the term “Fair hearing” when in that locus classicus, he observed thus: “We think that a fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether from his observation, Justice has been done in the case. We feel obliged to agree with this.”
Furthermore, in GAJI vs STATE (1975) 5 SC 61, the Court held that fair hearing entails a fair view of a dispassionate visitor to the Court who had watched the entire proceedings. See: also UKPE Vs THE STATE (2001) 18 WRN 84.
It is clear from the record that the counsel for the Appellant at the trial Court closed the case on 14/11/2018 and it was agreed by counsel that the case be adjourned to 10/12/2018 for adoption of final written addresses. (Page 54 of the record refer).
On 10/12/2018, the Appellant was not legally represented and no representation was made to the Court explaining the reason for the absence of the Appellant counsel while the Respondent was legally represented by F. O. Awoniyi who informed the trial Court that the respondent could not file because the defendants (including the Appellant) did not serve the respondent with their own written address.
It is apposite to point out that from 14/11/2018 to 10/12/2018 is a period of 27(Twenty-Seven) days. The Appellant ought to have utilized the opportunity afforded him by the trial Court by preparing and filing his final written address (if he had any) and serve same on the respondent to enable her (the Respondent) respond appropriately but he failed and turn round to complain of the breach of his right to fair hearing. It is the law as handed down by the Supreme Court that once it can be shown that a party was given opportunity of being heard but he refuses to avail himself of the opportunity, he cannot be head to complain that he was not given a fair hearing. See: ODUNLAMI Vs NIGERIAN NAVY (2014) ALL FWLR (Pt. 720) 1206 @ 1226 Paras. F-G.
Furthermore, in the case of CBN Vs INTERSTELLA COMMUNICATIONS Ltd & Ors (2017) LPELR-43940 (SC) where it was held that an appellant who had deliberately refused to avail himself of the opportunity to file written address within time cannot complain of breach to his right to fair hearing as the right to fair hearing cannot be used by the indolent since equity aids the vigilant and not the lay about.
It is also crucial to note that if the case of a party is not made out by the evidence, no amount of ingenuity in terms of a final written address would give him judgment i.e. no amount of brilliance in a fine speech can make up for lack of evidence to prove and establish or disprove and demolish a See: also HADI SULE Vs STATE (2018) ALL FWLR (Pt. 953) 164, OKORIE Vs STATE (2018) ALL FWLR (Pt. 932) 828 at 274, the Apex Court stated that:
“…. in essence, fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing principle.”
It is on record that the Appellant and the Respondent were given opportunity to prepare and file their written addresses from 14/11/2018 to 10/12/2018. They were expected to have filed and exchange their written addresses while adoption was fixed for 10/12/2018 by agreement of both counsel but the Appellant counsel failed to file his written address which in turn prevented the Respondent from filling his own. The Appellant counsel also failed to appear in Court on the adjourned date of 10/12/2018. The case was subsequently adjourned for judgment which was delivered on 20/12/2018.
In view of the above, the Appellant cannot cry wolf where there is none. Opportunity was well afforded for fair hearing for both parties but the Appellant either failed and/or neglected to utilise the opportunity.
In addition, it is the law that any party who alleges a denial of fair hearing must prove specific act or acts of which he was denied fair hearing and not a mere agglomeration of conducts which are mere cosmetic and vain. See Ejeka v. State (2003) FWLR (Pt 162) 1893.
What is more is that it is not in all cases where final address is not delivered that it would be held that there is a failure of justice. However, where the facts of the case are clear and straight forward as in this case, the trial judge may dispense with the final address. See Ogugu V. State (1990) 2 NWLR (Pt 134) 539. Even the issue of fair hearing is for the benefit of both the appellant and the Respondent. See Hadi Sule v. State (2018) ALL FWLR (Pt. 953) 164 at 189. There was therefore no breach of fair hearing as being canvassed by the Appellant. Per PAUL OBI ELECHI, J.C.A.

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

JUWON DAVID APPELANT(S)

And

THE STATE OF EKITI RESPONDENT(S)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ekiti State High Court, sitting at Ado-Ekiti, delivered by Hon. Justice J.O Adeyeye on 20th day of December, 2017 convicting and sentencing the Appellant to death by hanging for the offences of Conspiracy and armed robbery.

SUMMARY OF FACTS
The Appellant, Lukman Olawale was arraigned before the trial High Court for the offences of conspiracy and armed robberies contrary to Sections 6(b) and 1(2)a of the Robbery and Firearms (Special Provisions) Act, Cap. RII Laws of the Federation of Nigeria, 2004 respectively. The respondent’s case before the trial Court was to the effect that in between 6th day of June and 13th day of August, 2016, there were series of armed robberies within Ado-Ekiti metropolis and the victims include Odudele Sunday, Sgt. Olowoyeye Olumide and Esonichi Nicholas. The bandits specialized in snatching of motorcycles. Esonichi Nicholas and Sgt. Olowoyeye Olumide were attacked on 6/6/2016 and 12/8/2016 respectively and they were violently dispossessed of their Bajaj Motorcycles during the incidents. The Appellant and his

partner-in-crime, Juwon David were arrested and investigated for the series of armed robberies.
At the trial, the Prosecution called 3 witnesses in proof of their case and closed its case on 1/11/2018 after the prosecution could not bring its last witness to Court. The names of the three (3) witnesses called by the prosecution are as follows: PW1 (Sergeants Olowoyeye Olumide), PW2 (Mr. Nicholas Nnayo Esomchi) and PW3 Sergeant Oladele Ayodeji.

At the close of evidence, the trial Court, Honourable Justice J.O. Adeyeye without Final Written Addresses of the Parties delivered judgment in the case on 20/12/2018 and convicted the Appellant for Conspiracy and Armed Robbery.

The Appellant, being dissatisfied with the said judgment of the trial Court, filed Notice of Appeal dated 18/3/2019 at the Registry of the trial Court.

In this appeal, the Appellant formulated three issues for determination to wit:
(i) Whether having regards to the totality of the evidence, the prosecution proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt. This issue relates to Ground One.
(ii) Whether having regards

to the material contradictions in the evidence of the prosecution witnesses, the prosecution proved the offence of Armed Robbery against the Appellant for which Appellant was charged and convicted by the lower Court, beyond reasonable doubt. This issue relates to Grounds Two, Four, Five and Six.
(iii) Whether the failure of the learned trial Judge to afford Appellant adequate opportunity to address the lower Court does not amount to clear denial of the Appellant Constitutional right of fair hearing. This issue relates to Grounds Three.

ARGUMENTS
ISSUE 1
Whether having regard to the totality of the evidence, the prosecution proved the offence of Conspiracy to commit armed robbery against the Appellant beyond reasonable doubt. This issue relates to Ground One.

It is submitted that the Lower Court in its Judgment, failed to thoroughly and critically examine the evidence on record in which the prosecution failed to prove all the ingredients of the offence of Conspiracy and Armed Robbery as required by law against the Appellant and thereby arrived at a perverse decision.

It is trite that the burden of proof in all criminal trials lies

at all material times on the prosecution and must be proved against the accused person beyond reasonable doubt. Our Courts have on plethora of cases emphasized on the duty on the prosecution to prove all the ingredients of the alleged offence beyond reasonable doubt against the accused/Appellant.
See Igabele V State (2006) 6 NWLR (Pt. 975) 100 at 127, Olorunfemi V State (2018) LPELR-45894 (CA).

It is submitted that the essential ingredients of the offence of conspiracy and armed robbery which the prosecution must establish to warrant a conviction of the accused person were not proved by the prosecution against the Appellant by the trial Court, for conspiracy was not borne out of evidence on record as the identity of the actual persons that attacked PW1 on the 12/8/2016 is unknown and the finding that the Appellant was among them is doubtful and perverse. See:BUHARI V INEC (2009) ALL FWLR (Pt. 459) (2009) 7 WRN1 at 174.

According to the Appellant learned counsel, there is no evidence on record whether direct or circumstantial before the learned trial Court suggesting that the Appellant conspired with anyone to commit an unlawful purpose or the

armed robbery for which the Appellant was charged, thereby making the conviction of the Appellant for Conspiracy unfounded in law. The Appellant testified in evidence on page 53 of the Record of Appeal that he did not conspire with DW2 to commit any offence and denied ever knowing DW2 prior to the assets flowing from the above, it is evident and obvious from the finding of the learned trial Court that there was no evidence in support of the charge of conspiracy against the Appellant. However, the learned trial Judge wrongly relied on the purported confessional statement of the Appellant to convict the Appellant for the offence of conspiracy and armed robbery as charged without proper consideration of the conditions precedence required before value would be ascribed to such a retracted confessional statement.

The Appellant on page 42 of the Record of Appeal retracted Exhibit E1 as it was made behind him but the lower Court still admitted same and attached much weight and value same (Exhibit E1) without subjecting same to the 6 acid tests. It is trite that in ascertaining whether to rely on a retracted confessional statement as in Exhibit E1, it must pass

the 6 acid tests restated by the Supreme Court per Adekeye, JSC, in the case of ADESINA & ANOR V THE STATE (2012) 14 NWLR (Pt 1321) 429, 447.

It is then submitted that the prosecution failed woefully to prove the ingredients of the offence of conspiracy to commit armed robbery beyond reasonable doubt against the Appellant as there is no direct and circumstantial evidence suggesting that the Appellant conspired with anyone to commit an unlawful purpose or armed robbery.

On whether there is any evidence outside the confessional statement (Exhibit E1) to show that the content of the statement was true and whether the confession was corroborated in any way, learned counsel submitted that the purported confessional statement Exhibit E1 shows that there are no relevant statement of facts made there in that are likely to be true if properly tested. It is therefore submitted that Exhibit E1 is far from being possible and same is inconsistent with other facts which have been ascertained on record.

On its own wisdom, the learned trial judge heavily relied on Exhibit E1, the purported confessional statement of the Appellant to convict him of the said

offence. From the evidence of prosecution witnesses, it is obvious that the testimonies of virtually all prosecution witnesses did not show any bearing, if not contradiction, with the contents of the purported confessional statement of the Appellant.

Similarly, the said Exhibit E1 did not make any reference to a robbery incident at Atikankan on 12/8/2016 for which Appellant was charged and convicted by trial Court. The reference therefore, if any, will suggest commission of another different crime which has neither been proved against him nor charged in respect of same. It is therefore surprising to note that the lower Court found the said Exhibit E1 worthy of reliance simply on the principle that mere retraction of a confessional statement does not render it inadmissible.

In view of the above, it is submitted that the evidence available to the prosecution at trial did not disclose any air-tight or substantial case of conspiracy to commit armed robbery or the offence of armed robbery against the Appellant as charged See: MOHAMMED V STATE (2018) LPELR-44668.

The Court is urged to resolve this issue in favour of the Appellant.
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ISSUE TWO
Whether with regards to the material contradictions in the evidence of the prosecution witnesses, the prosecution proved the offence of Armed Robbery against the Appellant for which Appellant was charged and convicted by the lower Court, beyond reasonable doubt. This issue covers Ground Two, Four, Five and Six.

Under this issue, it is submitted that the identification of the Appellant by PW1 was a mistaken identity and that the lower Court failed to meticulously consider the requisite circumstances and principles before ascribing any value to the evidence of an eye witness in the matter of identification of a criminal. It is further submitted that the lower Court failed in its primary duty to properly evaluate the evidence of the prosecution witnesses as well as the Appellant and make a record of how it arrived at its findings. As a result, learned counsel submitted that the conviction of the Appellant for the offence of armed robbery by the lower Court was not supported by evidence as the prosecution failed to prove that said offence beyond reasonable doubt against the Appellant. See: ANEKWE V STATE (2014) LPELR-22881. Learned counsel then called on the

Appellant to re-evaluate same in the interest of justice.

It is submitted that the evidence of PW1 heavily relied on by the trial Court to convict the Appellant does not come near proof beyond reasonable doubt that the Appellant robbed PW1 with cutlass or any person and that had the trial Court properly adverted his mind to it, the Appellant would have been discharged and acquitted.
He then urged the Court to resolve this issue in favour of the Appellant.

ISSUE THREE
“Whether the failure of the learned trial Judge to afford Appellant adequate opportunity to address the lower Court does not amount to clear denial of the Appellant’s Constitutional right of fair hearing. This issue covers Ground 3.”

It is contended that this issue relates to the failure of the lower Court to afford the Appellant adequate time to file written address before judgment was delivered in the case contrary to Order 31 of the Ekiti State High Court (Civil Procedure) Rules.

It is submitted that it is a constitutional right of the Appellant to file final written address after the close of evidence before Judgment is delivered by the trial Court and relied on

Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria as Amended. See: also JOHN V STATE (2015) LPELR-40424 (CA), ONYEAKARUSI V NWADIOGO (2016) LPELR-40932.

The Court is therefore urged to hold that the lower Court disregarded the Right of the Appellant to file final written address as well as oral address and thereby refused to give adequate and reasonable time to the Appellant to address the Court. As a result, the Court is also urged to hold that the error vitiates the trial as it amounts to a breach of fair hearing. Also the Court is urged to resolve this issue in favour of the Appellant and further allow the appeal and set aside the Judgment of the lower Court.

On the other hand, the Respondent formulated two issues for determination viz:
(a) Whether from the totality of the evidence adduced by the prosecution, the learned trial Judge was not right to have found that the prosecution proved the allegations of conspiracy and armed robbery as contained in Counts I & III beyond reasonable doubt against the Appellant to warrant conviction and sentence. (Grounds 1, 2, 4, 5 & 6).
(b) Whether from the entire

proceedings, the Appellant’s fundamental right of fair hearing was breached by the Trial Court. (Ground 3).

ARGUMENT ON ISSUE ONE
Whether from the totality of the evidence adduced by the prosecution, the learned trial Judge was not right to have found that the prosecution proved the allegations of conspiracy and armed robbery as contained in Counts I & III beyond reasonable doubt against the Appellant to warrant conviction and sentence (Grounds 1, 2, 4, 5 & 6).

The Appellant counsel made a heavy weather on the allegation of conspiracy pressed against the Appellant.

The Appellant counsel strenuously argued that the Trial Court in its Judgment failed to thoroughly and critically examine the evidence on record in which the prosecution failed to prove all the ingredients of the offence of conspiracy as required by law against the Appellant and thereby arrived at a perverse decision.

He further argued that the inference of conspiracy was drawn against the Appellant by the Trial Court without any evidence of overt act.

It is submitted that the Appellant totally misconceived the position of the law as it relates to the

establishment of the ingredients of the offence of conspiracy under our criminal jurisprudence.

It is the law that for allegation of conspiracy to be proved beyond reasonable doubt by the prosecution, three ingredients must be establish. These are:
(a) Two or more persons have entered into an agreement freely to do or commit an illegal act;
(b) The two or more persons have agreed to cause to be done, an illegal act;
(c) The two or more persons have agreed freely to do or cause to be done an act which is not illegal but by illegal means.

It is also well established that once agreement is shown to exist between the conspirators, evidence admissible against one conspirator is equally admissible against the others. See: GBENGA OSHO Vs STATE (2018) ALL FWLR (Pt 966) PG 233 @ 250 Paras. A-E.

The offence of conspiracy is consummated once the parties are ad idem on the manifestation of such intent even if in the long run the conspirators reneged in the pursuance of their agreement. The offence of conspiracy is usually planned and hatched in secrecy, therefore in proving it, direct evidence is not indispensable and it is opened to the

trial Court to infer compliancy from the fact of doing things towards a common end. See: EMENEGOR Vs STATE 2009 VOL 31 WRN Pg.66 AT 73-75, particularly at Pages 102 lines 40-15 and lines 15-35, ADESINA Vs. STATE 2010 Vol. 35 WRN Pg. 49 at Pg. 69 lines 35-45 (Ratio 6 Pg.54).

On conspiracy, it is submitted that it is a well entrenched principle of law that the best evidence of conspiracy is usually obtained either from one of the conspirators or from inferences. The overt act or omission is often the only evidence which translates into the actus reus and the actus reus of each of the conspirators is often regard as the only proof of criminal agreement to commit a crime which is what is called conspiracy.
See: SAIDU HARUNA Vs THE STATE (2018) ALL FWLR (Pt. 969) 689 @ Pp: 734-735; Paras G-A.

The confessional Statement of the Appellant on the conspiracy is well corroborated by the evidence of PW1 who testified before the trial Court.

The offence of conspiracy can also be proved through circumstantial evidence. See: JUA Vs STATE (2010) 43 WRN1, MAKANA DADA Vs STATE (2018) ALL FWLR (Pt 920) 77.

From the facts present in this, it is submitted that

there exist sufficient facts from which common intention can be inferred by the trial Court to convict the Appellant for conspiracy to commit armed robbery. Also once the prosecution succeeds in proving the existence of conspiracy, evidence admissible against one conspirator is also admissible against the other. See: YARO Vs STATE (2008) 2 WRN 131 at 151, NWANKWOALA Vs THE STATE (2006) 14 NWLR (Pt. 1000) 663 at 683.

On the Armed Robbery, the Appellant Counsel contended that the respondent failed to prove all the ingredients of armed robbery against the Appellant as required by law. He strongly contended that if there was robbery, the fact of the said armed robbery incident, possession of dangerous weapons and the involvement of the Appellant is seriously in doubt. He said PW1 who is the star witness in the case gave unconvincing evidence.

On the other hand, it is submitted that the contention of the Appellant has no basis in law and in facts considering the totality of evidence adduced by the respondent in the case.

It is a well-established principle of law that for the prosecution to succeed in proving and sustaining an allegation of armed

robbery, three ingredients must be contemporaneously proved. These are:
1. That there was a robbery
2. That the robbery was an armed robbery
3. That the accused person took part in the robbery
See: ATTAH Vs STATE (2010) ALL FWLR (Pt. 540) 1224 at 1256, SOWEMIMO Vs STATE (2011) ALL FWLR (Pt. 599) 1064 at 1086.

It is also a time honoured principle of law that the guilt of an accused person can be proved by any of the following three ways. These are:
(1) By a voluntary confessional statement of the accused person.
(2) By circumstantial evidence which must be cogent, unequivocal and compelling, leading to the irresistible conclusion that the accused and no other person committed the offence but him.
(3) By evidence of eye-witness or witnesses otherwise known as direct evidence. See: MICHAEL TAIYE Vs STATE (2018) ALL FWLR (Pt. 969) Pg. 737 at Pages 757-758, Paras. G-B, ADAMU Vs. STATE (2018) ALL FWLR (Pt. 925) Pg. 48 at Pg 79, Paras D-E OMOREGIE Vs. STATE (2018) ALL FWLR (Pt. 925) 1 at 17 Paras. D, FAMUYIWA Vs. STATE (2018) ALL FWLR (Pt. 919) 1 at 24 Paras. F-G.

On the identification of the Appellant, it is submitted that

the identification of the Appellant by PW1 was very spontaneous and natural on the 15/8/2016 when the victim saw the Appellant after the incident. The only thing he did not state in his testimony is the previous contacts between him and the Appellant because he has not met prior to the incident.

Furthermore, it is trite that the question, whether an accused (the Appellant) was properly identified or not is a question of fact to be considered by the trial Judge in view of the totally of evidence led. Where an identification is found to be spontaneous and natural, the trial Court will not be wrong to attach weight to it, unless there are other exculpatory evidence in favour of the accused. See: OTTI Vs STATE (1991) 8 NWLR (Pt. 207) 103 @ 117.

In the case at hand, there was no mistake in the identity of the Appellant considering the unchallenged evidence of PW1, which undoubtedly fixed the Appellant to the scene and linked him with the commission of the alleged offences.
It is on records that the Appellant, during investigation, confessed to the commission of the alleged offence and his confessional statement was admitted as Exhibit F & F1 without objection.

It is the law that when there is good and cogent evidence linking an accused with the commission of crime and the accused confessed to same in his statement to the police, he has conclusively identified himself. See: USUNG Vs STATE (2010) 5 WRN Pg. 132, IKEMSON Vs STATE (1989) 3 NWLR (Pt. 110) 455.

On Exhibit F1 (Confessional Statement) of the Appellant, it is submitted that PW1 evidence where he clearly described the Appellant and fixed him to the scene of crime coupled with his own confessional statement have undoubtedly neutralized the concept of mistaken identity as canvassed by the Appellant.

The Appellant, in Paragraph 5.16 to 5.25 contended that there are contradictions as regards the scene of the crime for which he was convicted. He specifically said the charge stipulated the scene to Atikankan, Ado-Ekiti while the evidence gave NTA road, Ado-Ekiti as the scene of crime. He therefore submitted that the Appellant cannot be convicted for an offence committed at Atikankan Ado-Ekiti and along NTA Road, close to House of Assembly Complex, Ado-Ekiti at the same time.

It is submitted that the Appellant contention and

submission as summarized above is not only technical but lacks merit. It is the law that not every mistake or error that will lead to the reversal of a Judgment. It is only where the mistake made is substantial and occasioned a miscarriage of Justice that it becomes fatal to the Judgment. See: SOLOLA Vs STATE (2005) ALL FWLR (Pt 269) 1751.
See: UMARU SANI Vs STATE (2018) ALL FWLR (Pt 950) 1622 at 1667, HADI SULE Vs STATE (2018) ALL FWLR (Pt. 953) 164 at 188-189.

The major issue here is whether the Appellant participated in the crime. It is settled that for contradictions to be material and damaging to the prosecution’s case, it must be substantial and fundamental to the main issue in question so as to affect the credibility of the evidence. See: THEOPHILUS Vs STATE (1996) 1 NWLR (Pt. 423) 139; KHALEEL Vs THE STATE (1997) 8 NWLR (Pt 516) Pg. 237; IGBI Vs STATE (2000) 3 NWLR (Pt 648) Pg. 169.

So the reasoning of the Learned Trial Court on this issue is accurate and the Court is urged to so hold. What is more, what an appeal has to decide is whether the decision of the trial Court or intermediary appellate Court was right and not what its reasons

were. See: NDUKWE Vs STATE (2009) ALL FWLR (Pt. 464) Pg. 1447 @ 1480.

No evidence has been adduced by the Appellant upon which doubt can be elicited by the trial Court and that explained why the verdict of guilty was returned against the Appellant.
The Court is urged to resolve this issue in favour of the Respondent.

ARGUMENT ON ISSUE TWO
Whether from the entire proceedings, the Appellant’s Fundamental Right of fair hearing was breached by the Trial Court. (Ground 3).

The Appellant Counsel’s main contention of this issue as contained in Paragraphs 6.01 – 6.12 of the Appellant brief is that the Appellant’s constitutional right of fair hearing had been violated because he was never afforded opportunity to file his final written address before Judgment was delivered by the trial Court.

It is submitted that the test or touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather, the question whether an opportunity of hearing was afforded to parties entitled to be heard. See: CBN Vs INTERSTELLA COMMUNICATIONS LTD & ORS.

(2017) LPELR – 43940 (SC), ADEKANBI Vs JANGBON (2007) ALL FWLR (Pt. 383) 152.

On the issue of final written address, it is submitted that it is not in all cases where final address is not delivered that it would be held that there is a failure of justice. Where the facts of the case are clear and straightforward, a trial Judge may dispense with final addresses. See: OGUGU Vs STATE (1990) 2 NWLR (Pt. 134) 539.

The Appellant has not show any miscarriage of justice, he had suffered by the lack of delivery of address in this case. It is settle that when there is an allegation of breach of fair hearing, what concerns the Court of justice is not mere technical violation, but whether there has been a substantial miscarriage of Justice. See: DARAMOLA Vs ATTORNEY-GENERAL ONDO STATE (2000) FWLR (Pt. 6) 997.

It is on record that the Appellant and the Respondent were given opportunity to prepare and file their written addresses from 14/11/2018 to 10/12/2018. They were expected to have filed and exchanged their written addresses while adoption was fixed for 10/12/2018 by agreement of counsel but the Appellant counsel failed to file his written address

which in turn prevented the Respondent from filing her own. The Appellant counsel also failed to appear in Court on the adjourned date of 10/12/2018 and no reason was adduced through any means for his absence. The case was subsequently adjourned for Judgment which was delivered on 20/12/2018.

The Appellant counsel, in Paragraph 6.05 of the Appellant brief argued that Order 31 of the Ekiti State High Court (Civil Procedure) Rules entitled the Appellant file written address. On the other hand, it is submitted that the Appellant argument and submission is alien to our criminal Justice System. The Administration of Criminal Justice Law of Ekiti State, 2014 is the procedural law that regulates criminal proceedings in Ekiti State and NOT Ekiti State High Court (Civil Procedure) Rules. Part 26 and specifically Sections 268 and 269 of the Administration of Criminal Justice Law of Ekiti State, 2014 province for addresses.

It is trite that the function of the evaluation of evidence is essentially that of a trial Judge and where the trial Judge has unquestionably evaluated same, the Court of Appeal will not interfere.

The Court is urged to resolve this

issue in favour of the Respondent and finally to dismiss the appeal and affirm the Judgment of the lower Court.

RESOLUTION OF ISSUES
This appeal will be considered and determined on its merit from the issues as formulated by the Appellant thus:
(1) Whether having regard to the totality of the evidence, the prosecution proved the offence of conspiracy to commit Armed Robbery against the Appellant beyond reasonable doubt.” Ground One.
(2) Whether having regards to the material contradictions in the evidence of the prosecution witnesses, the prosecution proved the offence of Armed Robbery against the Appellant for which Appellant was charged and convicted by the lower Court beyond reasonable Court.” Grounds 2, 4, 5 and 6.
(3) Whether the failure of the Learned trial Judge to afford Appellant adequate opportunity to address the lower Court does not amount to clear denial of the Appellant Constitutional right of fair hearing.” Ground 3.

ARGUMENTS
ISSUE ONE
“Whether having regards to the quality of the evidence, the prosecution proved the offence of conspiracy to commit armed Robbery against the Appellant beyond

reasonable doubt.” Ground One.

The Appellant herein was charged with the offence of conspiracy and armed Robbery contrary to Section 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11 Laws of the Federation of Nigeria, 2004 respectively.

The Respondent’s case before the trial Court was to the effect that in between 6th day of June and 13th day of August, 2016, there were series of armed Robberies within Ado-Ekiti metropolis and the victims include Oduade Sunday, Sgt. Olowoyeye Olumide and Esonichi Nicholas.
It is incumbent on the prosecution to prove this charge beyond reasonable doubt to warrant the conviction of the Appellant otherwise he shall be discharged and acquitted. See: TOBI JSC in SHEHU Vs STATE (2010) LPELR-3041 (SC).

robberies.
(c) That the robbery or each robbery was an armed Robbery. See: PER KEKERE-EKUN, JSC in OKOH Vs STATE (2014) LPELR-22589 (SC).
Also, it is well established that once agreement is shown to exist between the conspirators, evidence admissible against one conspirator, is equally admissible against other conspirators. See: GBENGA OSHO Vs. STATE (2018) ALL FWLR (Pt. 966) 250.
Worthy of note therefore is that the offence of conspiracy is consummated once the parties are ad idem on the manifestation of such intent even if in the long run, the conspirators reneged in the pursuance of their agreement. The offence of conspiring is usually planned and hatched in secrecy, therefore in proving it, direct evidence is not indispensable and so it is open to the trial Court to infer compliancy from the fact of doing things towards a common end. See: EMENEGOR Vs STATE (2009) 31 WRN 66 at 73 – 75, ADESINA Vs STATE (2010) 35 WRN 49 at 69.
The Appellant counsel made heavy weather on the allegation of conspiracy pressed against the Appellant in that the trial Court in its Judgment failed to thoroughly and critically examine the evidence on record.

The prosecution failed to prove all the ingredients of the offence of conspiracy as required by law and consequently arrived at a perverse decision. It is also argued by the Appellant that the inference of conspiracy was drawn against the Appellant by the trial Court without any evidence of overt act.
It is well entrenched principle of law that the best evidence of conspiracy is usually obtained either from one of the conspirators or from instances. The overt act or omission is often the only evidence which translates into actus reus and the actus reus of each of the conspirators is often regarded as the only proof of criminal agreement to commit a crime which is what is called conspiracy. See: SAIDU HARUNA Vs STATE (2018) ALL FWLR (Pt. 969) 689 at 734 -735.
It must be worthy of note that conspiracy is an offence that is impossible of being committed by only one person. See: STATE Vs AJAYI (2016) ALL FWLR (Pt. 854) 1838 AT 1865 Paras D-F (SC), the offence is in the agreement between two or more person to carry out an unlawful act or carry out a lawful act in an unlawful Manner. See: OKANLAWON Vs STATE (2015) 7 MJSC 28 at 36. Given the very nature of

conspiracy, as one to do with an unlawful act, it is rarely carried out in the open. That necessarily means that evidence in proof of it is suddenly direct and is rather more commonly gathered from circumstances disclosed in the evidence. See: OKOSUN Vs A.G of BENDEL STATE (1985) 3 NWLR (Pt. 12) 285 AT 291 – 292, 297 (SC).
In a charge of conspiracy, it is the duty of the prosecution to prove not only the indicatory nature of the offence but also the meeting of the minds of the accused persons to commit a particular offence. See: GBADAMOSI Vs STATE (1991) 6 NWLR (Pt. 196) 182.
However, where the record does not reveal any agreement on the part of the alleged conspirators, the charge is not made out See: ISHOLA Vs STATE (1972) 10 (SC) 63 at 76 – 77, STATE Vs SALAWU (2012) ALL FWLR (Pt. 614) 1 at 31 – 32 (SC), OLADEJO Vs STATE (1994) 6 NWLR (Pt. 348) 101 at 127.
Also, the first defendant (Lukman Olawale) made statements to the police during investigation and the two statements he made were tendered and admitted as Exhibits E & E1. In Exhibit E, the defendant said as follows:
“…Meanwhile, on 14/8/2016 at about 2000hrs along NTA Road

Ado-Ekiti one Juwon David and I did conspired and block one Sgt. Olowoyeye Olumide with the aim of disposing him off his motorcycle with the use of some weapons such as cutlass and shovel, and during the course of struggling with us I used the cutlass to matchetted him on his head and hand during which he was severally injure and I later escaped from the scene with his motorcycle Bajaj…”
The offence of conspiracy can also be proved through circumstantial evidence that are strong, compelling, cogent and point irresistibly to the guilt of accused in a charge of crime and can also ground the conviction of the accused person. See: JUA Vs STATE (2010) 43 WRN 1 at 36. On the other hand, circumstantial evidence must in all cases be narrowly construed and examined as it is easily capable of being fabricated to cast suspicion on an innocent person. See: AHMED Vs STATE (2001) FWLR (Pt. 34) 438 (SC), MARIAGBE Vs STATE (1977) NSCC 130 at 133. These set of facts constitute a strong and compelling circumstantial evidence that there was an agreement between the Appellant and Juwon David (second defendant).

From the contents of Exhibits E & E1, it is clear

that the offence of conspiracy as charged has been proved beyond reasonable doubt. I do not therefore agree with the submission of the Appellant counsel that the conviction of the Appellant was not borne out of the evidence on record as to the identity of the actual person that attacked PW1 on the 12/8/2016 is unknown, especially if one looks at the evidence as contained in Exhibit E1 as follow:
Sufficient facts therefore exist in this case from which common intention can be inferred and were actually inferred by the trial Court to convict the Appellant for conspiracy and armed robbery.
This issue is heavy resolved in favour of the Respondent.

ISSUE 2
“Whether with regards to the material contradictions in the evidence of the prosecution witnesses, the prosecution proved the offence of armed robbery against the Appellant for which the Appellant was charged and convicted by the lower Court beyond reasonable doubt.”

This issue is distilled from Grounds 2, 4, 5 and 6 of the Ground of Appeal.

The Appellant contended under this issue that the Respondent failed to prove all the ingredients of armed robbery against the Appellant as required by law.

However in the instant case, the Respondent is fully aware of the legal burden placed on her by law in Section 135 of the Evidence Act that the onus rests squarely on her to prove the guilty of the Appellant beyond reasonable doubts by establishing all the ingredients of the offence(s) pressed against the Appellant and that the onus do not shift.

It is a well-established principle of law that for the prosecution to succeed in proving and

sustaining an allegation of armed robbery, three ingredients must be contemporaneously proved. These are:
1. That there was a robbery
2. That the robbery was an armed robbery
3. That accused person took part in the robbery
See: ATTAH Vs STATE (2010) ALL FWLR (Pt. 540) 1224 at 1256, SOWEMIMO Vs STATE (2011) ALL FWLR (Pt. 599) 1064 at 1086.

It is also a time-honoured principle of law that the guilt of an accused person can be proved by any of the following three ways. These are:
(1) By voluntary confessional statement of the accused persons.
(2) By circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him.
(3) By evidence of eye-witness or witnesses otherwise known as direct evidence. See: MICHAEL TAIYE Vs STATE (2018) ALL FWLR (Pt. 969) Pg. 737 at Pages 757-758; Paras. G-B, ADAMU Vs STATE (2018) ALL FWLR (Pt. 925) Pg. 48 at Pg. 79, Paras D-E. OMOREGIE Vs STATE (2018) ALL FWLR (Pt. 925) 1 at 17 Para. D, FAMUYIWA Vs STATE (2018) ALL FWLR (Pt. 919) 1 at 24 Paras. F-G.

Sgt. Olumide Olowoyeye is the victim of the armed robbery of 12/8/2016 and he testified as PW1 on 7/3/2018.
His testimony goes thus:
“… I remember 12/8/2016, on that day I was riding motorcycle along NTA road very close to the House of Assembly when suddenly another person riding.”

It may be necessary at this juncture to look at a witness in evidence Court Sgt. Olumide Olowoyeye is the victim of the armed robbery of 12/8/2016 and he testified as PW1 on 7/3/2018.
His testimony goes thus:
“… I remember 12/8/2016. on that day I was riding motorcycle a long NTA road very close to the House of Assembly. When suddenly another person riding motorcycle blocked the road. It was about 8.30pm, I then asked the boy why he blocked me. He said I should leave my motorcycle and run away. He brought out a machete. Before I know what was happening the 2nd person came out and they started to machete me. I started struggling with them. We were engaged in a fight for about 30 minutes. I was injured and I rushed to New Iyin road Police Station to report. They took away the motorcycle but unfortunately the policemen and security men in the House of Assembly accosted the defendants and stopped

them from escaping with my motorcycle. But the defendants were not arrested as they escaped. I was rushed to the Police Clinic by the policemen at New Iyin road police station. I was referred to the Teaching Hospital for further treatment. I was referred from the Teaching Hospital Ado to Ido Medical Centre for the treatment of my hands.
The testimony of PW1 continues;
“On Sunday 14/8/2016, I got information that two boys were arrested. On Monday 15/8/2016, I went to Okesa Police Station where the defendants were detained. When I got to the Police Station and I saw the two defendants. I identified the defendants as the people who attacked me and collected my motorcycle. On 16/8/2016 when I got to Okesa Police Station. I discovered the case has been referred to the C.I.I.D. I went to the State C.I.I.D where I made a statement. When the defendants wanted to deny the allegations I told the Police to tell the 1st defendant to open his mouth because I know I injured him in the mouth with my fist. When the 1st defendant opened his mouth, it was discovered that he was actually injured in the mouth…” (Page 18 to 20 refer)

From the above extracts from the testimony of PW1, one is left in other doubt that PW1 was robbed on the 12/8/2016 as charged, that the robbery was an armed robbery and that the Appellant actively participated in the robbery. The prosecution has therefore proved the offence of armed robbery against the Appellant beyond reasonable doubt.

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. This is because absolute certainty is impossible in any human endeavour including the administration of justice. Proof beyond reasonable doubt thus simply means, establishing the guilt of the defendant, with compelling and conclusive evidence to a degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See ADELEKE Vs STATE (2013) 16 NWLR (Pt. 1381) 556 and BABARINDE Vs STATE (2014) 3 NWLR (Pt.1395) 568.
This point was expressed by Denning J (as he then was) in MILLER Vs MINISTER of PENSIONS (1947) 2 ALL ER 372 at

373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. If the evidence is as 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 is proved beyond reasonable doubt but nothing short will suffice.”

It is argued by the Appellant that there is serious doubt in the evidence of PW1 as to the identity of the person(s) that attached him whether it was actually the Appellant or any other person. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence. At any rate, the law is whether an accused person was properly identified or not is a question of fact for the trial Court. Once the evidence of the trial Court is shown to have been properly evaluated, the Appeal Court cannot interfere. See:

BASSEY AKPAN ARCHIBONG Vs STATE (2006) 14 NWLR (Pt. 1000) 349 at 371.

In the present case at hand, I have perused the evidence of PW1 and noticed that he has clearly described the Appellant and thus fixed him squarely to the scene of crime coupled with Exhibit E1 (Confessional Statement) and both have undoubtedly neutralised the concept of mistaken identity as canvassed by the Appellant.
The Appellant made a confessional statement Exhibit E1.

It is a time-honoured of law that a free and voluntary confession by an accused person, if direct, positive and unequivocal and if satisfactorily proved is sufficient to ground a conviction. See: HARUNA Vs ATTORNEY GENERAL FEDERATION (2012) ALL FWLR (Pt. 632) 1617, ALARAPE Vs STATE (2001) ALL FWLR (Pt. 41) 1872.
Furthermore, in the case of IRENE NGUMA Vs A-G; IMO STATE (2014) 16 WRN Pg. 1 at Pages 24-25, Lines 45-5, the Supreme Court held as follows:
“A free and voluntary confession which is direct positive and properly proved is sufficient to sustain a conviction. Though desirable, corroborative evidence is not necessary. Once the Court is satisfied with its truth, it can safely convict on

the basis of the confessional statement of an accused alone.”

There are series of evidence which corroborate the Appellant confessional statement i.e. Exhibit E1.

The Appellant contended in paragraph 5.05 of his brief of agreement that there is doubt as regards the date the offences were actually committed, whether it was 14/8/2016 or 12/8/2016 as per the evidence on record and that the glaring doubt ought to have been resolved in favour of the Appellant and placed reliance on the authority of NWEZE vs STATE (2017) LPELR-42344 (SC).
However, in proof of armed robbery or conspiracy, the issue of date is not a requirement of proof. The prosecution is not therefore required to prove the date an offence was committed with certainty. That is why in drafting a charge, the phrase “ON OR ABOUT” is employed in the process of drafting a charge or information.
The particulars of offence against the Appellant as shown on page 1 of the records reads thus:
“Lukman Olawale and JUWON DAVID on or about the 13th day of August, 2016 at Atikankan Junction, Ado-Ekiti within the jurisdiction of the Honourable Court conspired to commit felony to wit: Armed

Robbery” amongst other particulars of offence stated therein.
It is the law that where the phrase “on or about” is used in a criminal charge, it expresses some amount of uncertainty. While the “or” introduces an alternative, the word “about” means “a little more or less than” “a little before or a little after”. Thus when the phrase “on or about” is used in a criminal charge it is not necessary to prove the precise date the alleged offence was committed. See: AKPA Vs STATE (2007) 2 NWLR (Pt. 1019) Pg 500 @ Pg 509, AWOPEJO Vs STATE (2000) 6 NWLR (Pt. 659) Pg 1. KOR Vs STATE (2001) FWLR (Pt. 76) Pg 637 @ 645.

Therefore, I hereby discountenance the argument of the Appellant that there is serious doubt on the actual date of the robbery incident for which the Appellant was charged and convicted. The authority of NWEZE Vs STATE (Supra) does not apply in this regard.

In the Appellant brief of argument, it is stated that in Counts II & III for which the Appellant was convicted on the basis of a confessional statement on the body of the information/charge sheet before the lower Court, the scene of crime is clearly stated to be at ATIKANKAN JUNCTION

ADO-EKITI where as PW1 gave a contrary evidence that he was attacked along NTA Road, close to House of Assembly Complex, Ado-Ekiti.

In view of the above, it is submitted that these are evidence of clear contradictions and the learned trial Court is not empowered to pick and choose the evidence he wants to believe. Also that the Appellant cannot be convicted for an offence committed at Atikankan, Ado-Ekiti and along NTA Road, close to the House of Assembly at the same time.

The feeling I have here is actually whether the Applicant participated in the crime, to which he is charged and convicted. It is settled that for contradiction to be material and fundamentally damaging to the prosecution’s case, it must be substantial to the main issue in question so as to affect the credibility of the offence. See: THEOPHILUS Vs STATE (1996) 1 NWLR (Pt. 423) 139, KHALEEL Vs STATE (1997) 8 NWLR (Pt. 516) 237, IGBI Vs STATE (2000) 3 NWLR (Pt. 648) 169.
Also the position of the law is that contradictions that will upset a judgment on appeal, must be material or of some magnitude as to amount to substantial discredit of the witnesses veracity, minor contradictions

of little or no substance touching on the periphery of the case cannot suffice. See: KALU Vs STATE (1988) 4 NWLR (Pt. 90) 503 (SC) 1, IBINA Vs STATE (1989) 5 NWLR (Pt. 120) 238 at 246. In the case of OKPOPO Vs. UKO (1997) 11 NWLR (Pt. 527) 94 at 116 – 117, this Court per NIKI TOBI JCA (as he then was and now of blessed memory) had occasion to address an issue of this nature when he said thus:
“Learned counsel for the Appellant made so much weather on what he called contradictions in the evidence of the Respondents witnesses. There were contradictions not only in the evidence of the Respondent witnesses but also in the evidence of the Appellant witnesses. In a matter such as this, minor contradictions are bound to arise if the witnesses are to be believed. A Court of law should be reluctant or loath to believe the evidence of witnesses who are exact to the minutes mathematical details in a matter such as this which events have taken a number of years. Memories must fail and that is human. Where the contradictions do not affect the main issue in the matter, a Court of law is entitled to ignore them. I see such a situation here.”
I agree with the above

and hold that the contradictions if so called are not material enough as to up turn this matter on appeal. In view of all I have this issue 2 in favour of the Respondent.

ISSUE THREE
“Whether the failure of the learned trial Judge to afford the Appellant adequate opportunity to address the lower Court does not amount to clear denial of the Appellant constitutional right of fair hearing. This issue relates to Grounds three.

This issue relates to the failure of the learned trial Judge to afford the Appellant adequate opportunity to file written address before Judgment was delivered in the case in compliance with the provisions of Order 31 of the Ekiti State High Court (Civil Procedure) Rules.
What then is fair hearing? In the case of ISIYAKU MOHAMMED Vs KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424, ADEMOLA CJN, set the tone for what has now been generally accepted in Legal circles as the definition of the term “Fair hearing” when in that locus classicus, he observed thus: “We think that a fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing, it was suggested by counsel, is the impression of a reasonable

person who was present at the trial, whether from his observation, Justice has been done in the case. We feel obliged to agree with this.”
Furthermore, in GAJI vs STATE (1975) 5 SC 61, the Court held that fair hearing entails a fair view of a dispassionate visitor to the Court who had watched the entire proceedings. See: also UKPE Vs THE STATE (2001) 18 WRN 84.
It is clear from the record that the counsel for the Appellant at the trial Court closed the case on 14/11/2018 and it was agreed by counsel that the case be adjourned to 10/12/2018 for adoption of final written addresses. (Page 54 of the record refer).
On 10/12/2018, the Appellant was not legally represented and no representation was made to the Court explaining the reason for the absence of the Appellant counsel while the Respondent was legally represented by F. O. Awoniyi who informed the trial Court that the respondent could not file because the defendants (including the Appellant) did not serve the respondent with their own written address.
It is apposite to point out that from 14/11/2018 to 10/12/2018 is a period of 27(Twenty-Seven) days. The Appellant ought to have utilized the

opportunity afforded him by the trial Court by preparing and filing his final written address (if he had any) and serve same on the respondent to enable her (the Respondent) respond appropriately but he failed and turn round to complain of the breach of his right to fair hearing. It is the law as handed down by the Supreme Court that once it can be shown that a party was given opportunity of being heard but he refuses to avail himself of the opportunity, he cannot be head to complain that he was not given a fair hearing. See: ODUNLAMI Vs NIGERIAN NAVY (2014) ALL FWLR (Pt. 720) 1206 @ 1226 Paras. F-G.
Furthermore, in the case of CBN Vs INTERSTELLA COMMUNICATIONS Ltd & Ors (2017) LPELR-43940 (SC) where it was held that an appellant who had deliberately refused to avail himself of the opportunity to file written address within time cannot complain of breach to his right to fair hearing as the right to fair hearing cannot be used by the indolent since equity aids the vigilant and not the lay about.
It is also crucial to note that if the case of a party is not made out by the evidence, no amount of ingenuity in terms of a final written address would

give him judgment i.e. no amount of brilliance in a fine speech can make up for lack of evidence to prove and establish or disprove and demolish a See: also HADI SULE Vs STATE (2018) ALL FWLR (Pt. 953) 164, OKORIE Vs STATE (2018) ALL FWLR (Pt. 932) 828 at 274, the Apex Court stated that:
“…. in essence, fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing principle.”
It is on record that the Appellant and the Respondent were given opportunity to prepare and file their written addresses from 14/11/2018 to 10/12/2018. They were expected to have filed and exchange their written addresses while adoption was fixed for 10/12/2018 by agreement of both counsel but the Appellant counsel failed to file his written address which in turn prevented the Respondent from filling his own. The Appellant counsel also failed to appear in Court on the adjourned date of 10/12/2018. The case was subsequently adjourned for judgment which was delivered on 20/12/2018.
In view of the above, the Appellant cannot cry wolf

where there is none. Opportunity was well afforded for fair hearing for both parties but the Appellant either failed and/or neglected to utilise the opportunity.
In addition, it is the law that any party who alleges a denial of fair hearing must prove specific act or acts of which he was denied fair hearing and not a mere agglomeration of conducts which are mere cosmetic and vain. See Ejeka v. State (2003) FWLR (Pt 162) 1893.
What is more is that it is not in all cases where final address is not delivered that it would be held that there is a failure of justice. However, where the facts of the case are clear and straight forward as in this case, the trial judge may dispense with the final address. See Ogugu V. State (1990) 2 NWLR (Pt 134) 539. Even the issue of fair hearing is for the benefit of both the appellant and the Respondent. See Hadi Sule v. State (2018) ALL FWLR (Pt. 953) 164 at 189. There was therefore no breach of fair hearing as being canvassed by the Appellant.
This issue is resolve in favour of the Respondent and against the Appellant.

The three issues distilled and considered in this appeal are all resolved in favour of the

Respondent. The Appeal lacks merit, it fails and is hereby dismissed. The judgment of the lower Court delivered on the 20/12/2018 in Suit No. HAD/100C/2017 by His Lordship Hon. Justice J. O. Adeyeye is hereby affirmed.
Appeal Dismissed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

Appearances:

Kayode Oluwasola, Esq. holding the brief of C. O. Akintola, Esq. For Appellant(s)

Olawale Fapohunda A/G Ekiti State with him,J. Ajibare DPP, Ibironke Odetola PLO and Kunle Adejumo SLO For Respondent(s)