EBIZUE v. C.O.P (2020)

EBIZUE v. C.O.P

(2020)LCN/14326(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/A/523C/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

EVANS EBIZUE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF CONSPIRACY

Conspiracy is not defined in the statute creating the offence. Thus, more often circumstantial evidence is resorted to in order to find out or discern if truly the Defendants arraigned on charge of conspiracy were/are actually involved in conspiratorial venture alleged against the Defendants in criminal proceedings. The conspirators usually hatch their plan or agreement to commit offence of conspiracy in secrecy. The Courts have over the years evolved mechanism and circumstances from which conspiracy could be inferred. It takes two or more persons to commit the offence of conspiracy which can be proved from direct or circumstantial evidence in support of the charge. There must at all times be evidence and incidence of agreement to commit the alleged offence. See. DAVID OMOLOLA VS THE STATE (2009) 7 NWLR (PART 1139) 148 AT 191 A – H TO 192 A-G. At page 192H TO 193A of the report OGUNTADE, JSC had this to say:-
“In order to get conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something lawful by unlawful means. Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact the confederates had agreed on the plan to commit a crime. There must be an overt act from which to infer the conspiracy.” PER IGE, J.C.A.

THE ESSENTIAL INGREDIENTS OF THE CRIMINAL OFFENCE OF ARMED ROBBERY

What are the ingredients or elements of Robbery or Armed Robbery? I will call in aid the following decisions of the apex Court viz:-
1. USMAN SAMINU (aka DANKO) VS THE STATE (2019) 11 NWLR (PART 1683) 254 AT 269H TO 270 A – F per ARIWOOLA, JSC who held:-
Robbery generally is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See; Akeem Agboola v. The State (2013) LPELR. 20652; (2013) 11 NWLR (Pt.1366) 619; (2013) 8 157; (2013) All FWLR (Pt.704) 139; (2013) 54 NSCQR (Pt.11) 1162; (2013)5 SCNJ 653.
It is trite law that for the prosecution to establish the offence of armed robbery, the following are required to be proved:-

(a) That there was infact a robbery or series of robberies;
(b) That the robbery was an armed robbery;
(c) That the accused person was the armed robber or one of the armed robbers.
See: Bozin v. State (1985) 2 NWLR (Pt.8) 465 at 467; Alabi v. State (1993) 7 NWLR (Pt.307) 551; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 193; Osetola & anor v. The State (supra).
The law is settled that there are various ways of proving the guilt of an accused person standing trial. It can be proved by:
(a) Confessional statement of an accused person:
(b) Evidence of eye witness of the crime;
(c) Circumstantial evidence.
See;Agboola v. The State (supra); Nigerian Navy & Ors v. Lambert E (2007) 18 NWLR (Pt.1066) 300; Alufohai v. The State (2014) 12 SCM (Pt. 2) 122 (2015) 3 NWLR (1445) 172. PER IGE, J.C.A.

WAYS OF ESTABLISHING AN OFFENCE AGAINST AN ACCUSED PERSON

For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely:-
(a) Through testimony or testimonies of eyewitness or witnesses, and/or
(b) Through confessional statement, voluntarily made by the accused person; and/or
(c) Tto the sole fact that the accused person and no other person committed the offence charged.
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit.
(i) That the accused person in the process had committed theft.
(ii) That the accused person and/or person(s) he was in company of, had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.
(iii) That the acts complained of were done in the process of committing the theft or in order to commit the theft and/on carry away the property obtained by the theft.
(iv) That the accused person did the acts complained of voluntarily and
(v) That the accused person or anyone in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery.
See Abdullahi v. The State (2008) 5 SCNJ 210/211, (2008) 17 NWLR (Pt. 1115) 203. In a nut-shell, the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See: Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Tanko v. The State (2009) 7 SCNJ 19; (2009) 4 NWLR (Pt. 1131 430; Ani v. The State (2009) 6 SCNJ 105; (2009) 16 NWLR (Pt. 1168) 443; Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Okosun v. A-G. Bendal State (1989) 1 NLR (Pt. 100) 642; Nwachukwu v. State (1985) 3 NWLR (Pt. 11) 218.”
3. ADEYEMI PEDRO VS THE STATE (2018) 17 NWLR (PART 1649) 463 AT 472 E G per PETER-ODILI, JSC. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of High Court of Federal Capital Territory, ABUJA JUDICIAL DIVISION (CORAM HON. JUSTICE A. M. TALBA) delivered on 12th day of October, 2015.

The Appellant and three other persons were arraigned on a Six Count Amended Charge. The Amended Charge reads as follows:-
‘’Count 1
That you Ikechukwu Eze ‘m’ 36 years of No. 8 Baruwa Aboju Lagos, Emmanuel Egwaje 25 years of Beach Land Barracks, Lagos, Chinedu Igwe, 32 years of No. 30 Zion Street Oruje Lagos, Evans Ebizue 32 years of Ali 14 Arnijun Street Alaba Lagos and others now at large on or about the 7th September, 2006 at about 0130 hours at Bwari Area Council Secretariat, Abuja within the Abuja Judicial Division did conspire together to commit felony to wit, armed robbery and you thereby committed an offence contrary to Section 5(b) of the Robbery and Firearms Special Provisions Act cap R11 LFN 2004.
Count 2
That you Ikechukwu Eze ‘m’ 36 years of No. 8 Baruwa Aboju Lagos, Emmanuel Egwaje 25 years of Beach Land Barracks, Lagos, Chinedu Igwe, 32 years of, No. 30 Zion Street

Oruje Lagos, Evans Ebizue 32 years of Ali 14 Amijun Street Alaba Lagos and others now at large on or about the 7th September, 2006 at about ‘0130 hours at Bwari Area Council Secretariat Abuja within the Abuja Judicial Division while armed with guns and others offensive weapons robbed one David Tanko of two handsets and Bwari Area Council of the sum of Two Million Six Hundred and Fifty Eight Thousand Naira (N2,658,000.00) which was kept in the cash office at the Council Secretariat and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms Special Provisions Act Cap R11 LFN 2004.
Count 3
That you Ikechukwu Eze ‘m’ 36 years of No. 8 Baruwa Aboju Lagos, Emmanuel Egwaje 25 years of Beach Land Barracks, Lagos, Chinedu Igwe, 32 years of No. 30 Zion Street Oruje Lagos, Evans Ebizue 32 years of Ali 14 Amijun Street Alaba Lagos and others now at large on or about the 7th September, 2006 at about 0130 hours at Bwari Area Council Secretariat, Abuja within the Abuja Judicial Division conspired together to commit felony to wit, house breaking and theft and you thereby committed an offence contrary to Section 97 of the Penal Code Law.

Count 4
That you Ikechukwu Eze ‘m’ 36 years of No. 8 Baruwa Aboju Lagos, Emmanuel Egwaje 25 years of Beach Land Barracks, Lagos, Chinedu Igwe, 32 years of No. 30 Zion Street Oruje Lagos, Evans Ebizue 32 years of Ali 14 Amijun Street Alaba Lagos and others now at large on or about the 7th September, 2006 at about 0130 hours at Bwari Area Council Secretariat, Abuja within the Abuja Judicial Division committed lurking house, trespass by night by entering into the building belonging to the Bwari Area Council used as offices and for custody of properties after sunset and before sunrise in order to commit the offence of armed robbery and you thereby committed an offence punishable under Section 356 of the Penal Code Law.
Count 5
That you Ikechukwu Eze ‘m’ 36 years of No. 8 Baruwa -Aboju Lagos, Emmanuel Egwaje 25 years of Beach Land Barracks, Lagos, Chinedu Igwe, 32 years of No. 30 Zion Street Oruje Lagos, Evans Ebizue 32 years of Ali 14 Amijun Street Alaba Lagos and others now at large on or about the 7th September, 2006 at about 0130 hours at Bwari Area Council Secretariat, Abuja within the Abuja Judicial Division

committed mischief by breaking the doors, and cutting the fence wire of, Bwari Area Council Secretariat thereby causing wrongful loss or damages to the property of Bwari Area Council Secretariat and you thereby committed an offence punishable under Section 327 of the Penal Code Law.
Count 6
That you Ikechukwu Eze ‘m’ 36 years of No.8 Baruwa Aboju Lagos, on or about the 7th September, 2006 at about 0150 behind Bwari Area Council Secretariat, Abuja within the Abuja Judicial Division did an act to wit: shooting CSP, Rabiu Sabin on the leg with such intention and under such circumstance that if by that act you had caused the death of CSP Rabiu Sabin, you would have been guilty of culpable homicide punishable with death and you thereby committed an offence punishable under Section 229 of the Penal Code. ”

The Appellant and the Co-Accused pleaded not guilty to the Six Counts Charge read to them and their trial commenced. The Prosecution called eight (8) witnesses while the four Accused persons testified each in his own behalf. At the end of trial and adoption of Written Address by the learned Counsel to the parties, the learned trial Judge gave a considered judgment on 12/10/2015.

The learned trial Judge found against the four Accused persons as follows:-
“I am therefore satisfied that the prosecution had established beyond reasonable doubt the guilt of the four accused person. In other words, the prosecution had proved that there was a robbery on 7/9/2006. The robbery was an armed robbery hence the prosecution tendered in evidence the following:
1) Iron cutter – Exhibit L
2) Saw blade – Exhibit M
3) Two cutlasses – Exhibit N1& 2
4) Two screw drivers – Exhibit 01 & 2
These exhibits were recovered from the scene of the crime by PW1, Cpl. Ambali Mohammed. The prosecution had also proved that the four accused persons were among those who took part in the armed robbery.
In Stephen Haruna vs The Attorney-General of the Federation (2012) 3 SC (Pt IV) 40, the Supreme Court held that:
“The Court can still admit and convict on a retracted confession, if satisfied that the accused person made the statement and as to the circumstances which give credibility to the contents of the confession. Yet, it is desirable that before conviction can be properly based on a

retracted confession there ought to be some corroborative evidence outside the confession which would make it probable that the confession was true.
Having come this far, it is now the duty of the Court to consider all possible defences open to an accused person on the evidence before the Court or even from the statement to the police notwithstanding, that such defences were not specifically raised by the accused person or his counsel.
The 1st accused, Ikechukwu Eze in his evidence before the Court, he said on 7th September, 2006, he was in his house in Bwari around 7:00 a.m. four police men came into their compound and arrested him.
During cross examination he said they are ten families in the compound. The question now is, why should he be the only one to be arrested in a family of ten in a compound. It does not make sense. The 1st accused could not establish any motive. I therefore do not believe the evidence of the 1st accused.
The 2nd accused, Emmanuel Egwaje told the Court that he was a constable before his arrest. And one morning at 8:00 a.m. three of them were going to Ikeja, himself, Emmanuel Abah and Adams Goddey. They were inside a

vehicle to Ikeja when their fuel finished. They parked at the filling station and they bought fuel. At that point they heard a gunshot and everybody was running. They stood by watching their car. The police started raiding everybody at the station. Three of them were arrested and they were taken to Lagos State Police Command. And from there they were brought to Abuja. I have stated earlier that the evidence of the 2nd accused is hard to believe. Just for the police from Abuja to travel all the way to Lagos in search of innocent persons whom to involve in a crime of armed robbery. I do not believe the evidence of the 2nd accused because it does not make sense.
On his part, the 3rd accused Chinedu Igwe, he told the Court that on 25/9/2006 he was at Asuwane bus stop Lagos waiting for a bus to take him to Lagos State Teaching Hospital Ikeja to see a brother who was on admission. As he was waiting for a vehicle, a bus came and he decided to enter the bus. As the door opened he entered the vehicle and he discovered that the people inside the vehicle were armed. And he bounced back, one of the men drew him back holding the collar of his shirt.

While others were raiding people at the bus stop. He was taken to Lagos. He was taken to Lagos State Police Command from where he was brought to Abuja. The story narrated by the 3rd accused is similar to that of the 2nd accused. How could the police in Abuja travel to Lagos only to go and raid people at a bus stop. Innocent people and then involve them in a serious crime. I do not believe the evidence of the 3rd accused.
And finally the 4th accused, Evans Ebizue he told the Court that he stays in Bwari, in the same compound with the 1st accused. He said on 7/9/2006, he was in his house in the morning when the police came and arrested the 1st accused. They said the DPO wants to see him at the station.
Around 11:00 a.m. himself and his neighbour, Madam Chinelo went to the police station. The police took him behind the counter. From there he was detained and he was accused of armed robbery. The story narrated by the 4th accused is similar to that of the 1st accused. In all the people staying at Bwari and in particular the ten families staying in the same compound why should the police arrest only the 1st accused and then the 4th accused who went to the police station

on his own to find out about the 1st accused. It does not appeal to common sense and I see no motive for the police to do such a thing. I also do not believe the evidence of the 4th accused. On the whole I do not believe the evidence of the four accused persons in their own defence.
In Ibrahim vs. The State (1991) 5 SCNJ 134 the Supreme Court held that:
“If an accused person resides from his confessional statement it is his function to explain to the Court as part of his defence the reason for the inconsistency. It may be that he was not correctly recorded or that he did not make the statement or that he was unsettled in mind at the time the statement was made or that he was induced to do so. The explanation should come from him without prompting from the prosecution.’’
See also Kereem v Fed. Rep of Nig. (2002) 7 SCIM 73.
In their evidence the four accused persons denied their confessional statements and at the same time they stated that they were tortured to make the statement. It is settled law that where an accused person denied making the statement on the one hand and alleged that he was tortured on the other. The statement

is not only admissible but the facts contained in the statement is accepted as correct and if the confession is sufficient, direct and positive he can be convicted on it. The fact is that the denial of making the statement and being tortured cannot be taken together, they are two different words with clear distinction. The accused cannot both deny making the statement and at the same time claim to be tortured. The effect of this that the accused made the statement but decided or was advised to deny on realizing the consequence of his action.
On this note I hold that the denial of making the confessional statements by the four accused persons does not render the statements inadmissible in evidence. And having tested the truth and veracity of the statements, I accept the fact that the accused persons made the statements voluntarily and the statements are sufficient, direct and positive. And most importantly the evidence of PW3, PW4 and PW5 and PW8 had corroborated their confessional statements.
Consequent to the above findings and relying on the case of State vs. Nwokoro digest of the Supreme Court cases (unreported) 1956 – 1984 at 52 wherein, the

Supreme Court held that a conviction can be had solely on the evidence of confession made by an accused person.
And the case of Asimiyu Alarape & Ors vs The State (2001) 3 SCM 1 where the Supreme Court held thus:-
“As long as the Court is satisfied with its truth, a confession statement alone is sufficient to ground and support a conviction without corroboration. ”
I therefore hold that the prosecution had established its case against the four accused persons beyond reasonable doubt.
I find the four accused persons guilty as charged in Court count One and Two.
Accordingly, I convict the four accused persons as charged namely:
(1) Ikechukwu Eze;
(2) Emmanuel Egwaje;
(3) Chinedu rgwe;
(4) Evans Ebizue.
Signed: HON. JUSTICE A.M. TALBA
PRESIDING JUDGE
12/10/2015″

Passing sentence on the convicts the learned trial Judge after allocutus held:-
“Consequently, I sentence each of the convicts namely;
1 . Ikechukwu Eze;
2. Emmanuel Egwaja;
3. Chinedu Igwe;
4. Evans Ebizue
To death by hanging in the Two Count Charge.
Appeal is allowed to the Court of Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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However, I hereby recommend that the Committee in Prerogative of Mercy should consider the case of the convicts with a view to recommending them to Mr. President for Presidential Pardon.

The Appellant was dissatisfied with the lower Court’s decision and has by his Amended Notice of Appeal dated 21st March, 2019 and filed on 27th March, 2019 but deemed filed on 28th March, 2019 appealed to this Court on Eight (8) Grounds which without their particulars are as follows:-
“GROUNDS OF APPEAL
1. GROUND ONE
The judgment of the learned trial judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
2. GROUND TWO
The learned trial judge erred in law by convicting the appellant for the offences of conspiracy to commit armed robbery and armed robbery whereas the evidence of PW3 who directly witnessed the robbery is to effect that he “did not see them with anything”.
3. GROUND THREE
The learned trial judge erred in law by striking out the four additional count charges as undesirable (amended charge) as the evidence led by prosecution at best established the offence(s) of house breaking,

robbery simpliciter and lurking but not armed robbery.
4. GROUND FOUR
The learned trial judge erred in law by relying on exhibits L, M, NI & 2, 01 & 2 to convict the appellant for armed robbery whereas those exhibits were an afterthought and were procured and produced to rope in the appellant by all means.
5. GROUND FIVE
The learned trial judge erred in law when His lordship held that the prosecution has proved count 2 of the charge whereas the prosecution failed to establish and prove the contents and substance of the Court.
6. GROUND SIX
The learned trial judge erred in law when His lordship held that the prosecution has proved the case of conspiracy and armed robbery beyond reasonable doubt, whereas there are material contradictions in the testimonies of the prosecution witnesses.
7. GROUND SEVEN
The learned trial judge erred in law by placing absolute reliance on the confessional statements of the appellant, whereas there is nothing to show outside the confession that it is true.
8. GROUND EIGHT
The learned trial judge erred in law when His lordship held that “I am therefore convinced beyond

reasonable doubt that the confessional statement were made voluntarily. I am satisfied that the confessional statements are free, positive and proved to be true”.
RELIEFS SOUGHT
1. An Order allowing this Appeal.
2. An Order setting aside the entire judgment of the High Court of Federal Capital Territory delivered on 12th day of October, 2015 being appealed against.
3. An Order acquitting and discharging the Appellant.
4. And any other Order(s) that this Court may deem fit to make in the circumstance.”

The Appellant’s Brief of Argument dated 12th day of February, 2020 was filed on 18th February, 2020 but deemed filed on 7th April, 2020. The Respondent’s Brief of Argument was dated 2nd April, 2020 and filed on 3rd April, 2020. The appeal was heard on 7th April, 2020 when the learned Counsel to the parties adopted their Briefs of Argument.

The learned Counsel to the Appellant distilled three issues viz:-
1. “Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the

amended charge and evidence adduced before the trial Court. (Distilled from grounds 1, 2, 5 & 6 of the grounds of appeal).
2. Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted exhibits L, M, NI & 2, 01 & 2 in evidence to convict the appellant for armed robbery.
3. Whether the learned trial Judge was right in placing absolute reliance on the confessional statements of the appellant to convict him.

The learned Counsel to the Respondent adopted the three (3) issues as formulated by the Appellant. The appeal will be determined on the three issues formulated by the Appellant.
ISSUE ONE
Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial
The learned Counsel to the Appellant H. O. ONYILOKWU, ESQ submitted that the burden of proof in a criminal

case is on the Prosecution who asserts and the Prosecution can only discharge this burden beyond reasonable doubt. He relied on the case of OYEBODE ALADE ATOYEBI V FEDERAL REPUBLIC OF NIGERIA (2018) 5 NWLR (PT. 1612) 350 AT 360 PARAS G – H and cited Sections 1 and 5(b) of the Robbery and Fire Arms Special Provisions Act.

That the Prosecution by virtue of Section 135(2) and (3) of the Evidence Act 2011 has the burden of proving the offence of conspiracy beyond reasonable doubt independently. That the ingredients of the offence of conspiracy that must be established are:-
a. Agreement between two or more persons;
b. That the agreement was to do an illegal act, or to do a legal act in an illegal means.
He referred to the cases of:
1. FASILAT ADEPOJU V THE STATE (2018) 15 NWLR (PT. 1614) 103 AT PP. 114 – 1115, PARAS G-A;
2. BALOGUN V AG. OGUN STATE (2002) 6 NWLR (PT. 763) 512.

That the trial Court held at page 249 of the record that the offence of conspiracy may not necessarily be proved by direct evidence and further held that the Confessional Statement of the Appellant who was the 4th Accused person proved that the Appellant conspired with the other Accused persons as stated in his Confessional Statement (Exh. H).

That there are facts as stated in his Confessional Statement (Exh. H). that do not support the decision of the trial Court that conspiracy was proved. First and foremost is that the name of Kingsley Ikechukwu mentioned in the Confessional Statement of the Appellant (Exhibit H), never featured in all the list of names stated in all the purported Confessional Statement of the Accused Person before the trial Court. Secondly, the Appellant and Kingsley Ikechukwu were guarding the security men outside and as a result they were not aware that their group got money. And that on hearing the Police gunshot they ran away and scattered into different locations and the Police claimed to have arrested him at the scene of the crime. That the Appellant had no opportunity to meet the others who went into the building.

That the confession in this case, does not possess the quality of being used for the purpose of inferring conspiracy. That the Appellant denied participating in the robbery and also denied the Confessional Statement. That the Appellant and the 1st Accused were co-tenants and he and

one Madam Chinelo went to the Police Station seeking for bail of the 1st Accused and he got arrested at the Police Station. That the trial Court did not take the evidence of the Appellant into consideration. He relied on the cases of:-
1. MATTHEW NWALU V THE STATE (2018) 14 NWLR (PT. 1638) 158 AT 172, PARAGRAPHS D – F;
2. SUNDAY MODUPE V THE STATE (1988) 4 NWLR (PT. 87) 130;
3. OLUJINLE V AMEAGBO (1988) 2 NWLR (PT. 75) 238.

On the issue of Armed Robbery, the learned Counsel to the Appellant, submitted that there are certain essential elements of Armed Robbery Offence that must be proved beyond reasonable doubt which the learned Counsel listed thus:-
a. That in fact there was a robbery;
b. That the robbery was armed robbery and
c. That the accused person was the armed robber or one of the armed robbers. He relied on the case of.
1. SUNDAY ADOBA V STATE (2018) 12 NWLR (PART 1633) 236 AT 253, PARA
2. BOZIN V STATE (1985) NWLR (PT. 8465) AT 467;
3. OLAYINKA V STATE (2007) 9 NWLR (PT. 1040) 561;
4. OSETOLA & ANOR V THE STATE (2012) 17 NWLR (PT. 1329) 251 AT 275.

That the conditions stated above are conjunctive and not disjunctive. That the prosecution did not establish a case of Armed Robbery against the Appellant. That the trial Court relied on the Confessional Statement of the Appellant and the evidence of PW1, PW2, PW3, PW4 and PW8 in convicting the Appellant. He referred to page 252 of the record which state the arms tendered in evidence as follows:-
1. Iron Cutter Exhibit L
2. Saw Blade Exhibit M
3. Two Cutlasses Exhibits N1 & 2
4. Two Screw Drivers Exhibits 01 & 2.

He submitted that the pieces of evidence of the witnesses relied upon by the trial Court to convict the Appellant lack credibility.
That PW1, CPL HAMBALI MOHAMMED was not one of the Policemen at the scene of the crime on 7/9/2006. That the Accused Persons said that EMMANUEL ABAH is innocent; he was given a lift by PC Emmanuel Ogwaja from Apapa to Ikeja. That the Accused Persons were not in the vehicle and could not have known that the 2nd Accused gave Emmanuel Abah lift from Apapato Ikeja.
That the evidence of PW1, PW2, PW4 and PW8 cannot be taken as credible evidence proceeding from credible source relying on the case of

ENGINEER GOODNEWS AGBI & ANOR V CHIEF UUDU OGBEH (2005) 8 NWLR (926) 40 AT 134, PARAS B – B.

PW1 stated at page 123 of the record that they received a barbwire which was cut from the perimeter fence, and some exhibits including a machete, two cutlasses, two screw drivers, one iron cutter, two extra blades and the axe. While PW2 Insp. Oboli Azuka said they recovered one Mercedes Benz ash colour with Registration No. AA557BDG; a bag containing two pairs of Police uniform and one pealed Police ID Card, two iron cutlasses and one iron rod. On his own part, PW4 Sgt. Garba Ishaku said one vehicle, Abuja colour and some pieces of cloths and tools were recovered. PW8 CSP DABRU SABIN said we recovered cutlasses, door breaking implements and other gadgets at the scene of the crime.

That there were material contradictions between the evidence of PW4 and PW8 as to what happened at the scene of the crime. That PW4, under cross examination at page 134 of the record, stated that none of the Policemen opened fire before the armed robbers came out of the Secretariat. On the other hand, PW8 said at page 141 of the record that immediately he entered, he saw movement of people around, therefore he fired one gun shot.

He submitted that it is unsafe to rely on such material contradiction in the evidence of the prosecution witnesses. He relied on the cases:
1. OGUN V AKINYELU (2004) 18 NWLR (PT. 905) 362;
2. EMIATOR V STATE (1975) 9 – 10 SC 107;
3. AFOLALU V STATE (2009) 3 NWLR (PT. 1127) 160.

That the evidence of PW3, a security man at the Secretariat is different from the narration of PW4 and PW8. That PW8 said Ikechukwu Eze was arrested with others after he overpowered Ikechukwu Eze who attempted to take his gun. That these facts show that the Appellant was not arrested at the scene. That PW3 did not state the type of hand set or torch light or wrist watch he alleged was taken from him. Neither did he tendered any purchase receipt or give evidence as to how he acquired these items.

That PW3 under cross examination stated that it was in the morning that he saw the items recovered from the accused at the Council Secretariat. This raises a question as to how the Police recovered items from the Accused Persons since PW3 earlier said he did not see then entering with anything.

That the 4th Accused Person (APPELLANT) had written in his Statement (Exhibit E) that “none of us came with gun”. That the trial Court should have also believed his part of the Appellant is Statement.

That PW4 said in his evidence under cross examination that he saw the 1st Accused with guns crawling, yet no gun was recovered. That the DPO, PW8 must have been shot by one of his Policemen as it was in the night and it was raining heavily. That there was no ballistic expert’s report to show the type of gun used to fire the bullet and the type of bullet that hit PW8. That there was no medical report from any hospital showing the nature of ailment and the treatment he received. That these lends credence to the evidence of PW3 that he heard only two gun shots. PW8 admitted he fired one gun shot, PW4 admitted he fired another gun shot. That the claim by PW4 and PW8 that there was exchange of gun fire between the Police and the alleged robbers was not proved.

He submitted that the prosecution has failed to adduce credible evidence to establish the ingredients of armed robbery relying on the case of OKECHUKWU NWEZE V THE STATE (2018) 6 NWLR (PT. 1615) 197 AT 215 – 216, PARAS H-A.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the evidence of the prosecution is fraught with falsehood and contradictions and that the sole evidence of the Appellant is more probable. That nobody from the cash office came to testify that N2,658,000.00 was missing from Bwari Area Council. That PW3 said in his evidence that he never told the Police that the robbers stole 2M. He relied on the case of AJAYI V THE STATE (2012) ALL FWLR (PT. 644) 100. He urged this Court to resolve this issue in favour of the Appellant.

In response to submissions of the Appellant, learned Counsel for the Respondent submitted that there was enough evidence produced against the Appellant to support his conviction. That the burden of proving the guilt of an accused person lies on the prosecution and never shifts. But, where the prosecution has discharged that burden, the pendulum shifts to the accused in some cases. He relied on the case of IGABELE VS STATE (2006) 25 NSCQR PAGE 231 AT 350.

He relied on the cases of:-
1. NWATUROCHA VS STATE (2011) 6 NCC PAGE 462 AT PAGE 480 and
2. OSUAGWU VS STATE (2013) 5 NWLR (PT 1347) PAGE 360 AT 386;
to state that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.

He submitted that three ways in which the Prosecution can discharge its burden of proof are:-
a. By evidence of confession;
b. Circumstantial evidence;
c. By evidence of eye witnesses.
He cited the case of ONITILO VS STATE (2018) NWLR (PART 1603) PAGE 239 AT 257.

That the evidence adduced by the prosecution consists of all the three ways- cited above that the prosecution through the evidence of PW1, PW2, PW3, PW4 and PW8 and Exhibits E, H & J prove beyond reasonable doubt that the Appellant and the other three accused convicts conspired together and robbed at Bwari Area Council on 7th September, 2006.

He also relied on Sections 1 and 5(b) of the Robbery and Fire Arms Special Provisions Act, upon which the Appellant and the other three accused were charged. He relied on the case of STATE VS SALAWU (2011) 8 NWLR (PART 1279) PAGE 580 AT 589 RATIO 1 on what constitutes ingredients of criminal conspiracy. That the offence of conspiracy is usually proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence relying on the cases of:

STATE VS SALAWU (SUPRA) RGT 101;
2. SULE VS STATE (2009) 4 NCC PAGE 456 AT 460 RATIO 12.

That the evidence of PW3, PW4 and PW8 and Exhibits E, H & J was corroborated by the evidence of PW1 and PW2 the Investigating Police Officers. That the act of the Appellant and the other three accused persons in entering into Bwari Area Council where they got the security men tied down before going into operation, no doubt clearly established beyond reasonable doubt that the Appellant and the other three accused persons were acting in concert and had actually conspired together to commit the offence of armed robbery. He urged this Court to affirm the conviction of the Appellant of the offence of criminal conspiracy contrary to Section 5(b) of the Robbery and Fire Arms Special Provision Act as charged in Count one relying on the case of EMMANUEL EGWAJE VS COMMISSIONER OF POLICE, APPEAL No. CA/A/1160/2016, Judgment delivered by the Court of Appeal, Abuja Division on 13th December, 2019.

Learned Counsel further submitted that based on the totality of evidence placed before the lower Court, the offence of armed robbery

was proved beyond reasonable doubt. He agreed with the ingredients of armed robbery as established in the cases of:-
1. BELLO VS STATE (2007) 10 NWLR (PART 1043) PAGE 564 AT 566 RATIO 1;
2. EKE VS STATE (2011) 6 NCC PAGE 1 AT 5 RATIO 10.

He relied on the pieces of evidence given by prosecution witnesses particularly PW1, PW2, PW4 and PW8 and Exhibits E, H & J to prove that the Appellant and the other three accused persons committed the offence of armed robbery at Bwari Area Council on 7th September, 2006.

That where an accused made a statement and later retracted the statement in Court, the said statement is still admissible in evidence. He relied on the case of:-
1. OSETOLA VS STATE (2012) 50 NSCQR PAGE 598 AT 608 RATIO 7;
2. DIBIE VS STATE (2007) 29 NSCQR PART 11 PAGE 1431 AT 1440 RATIO 16.

He urged this Court to attach full weight to the confessional statements of the Appellant and the other three Accused persons since they are direct, positive and unequivocal, same having been corroborated by the evidence of the prosecution witnesses and the Exhibits tendered. He relied on the case of ADENIYI ADEKOYA VS STATE (2012) 7 NCC PAGE 1 AT PAGE 10.

That the Appellant and the other three accused persons shot down PW8, CSP RABIU SABIN before he was rescued by PW4 Sgt. Garba Isaku and other Police men who went for the operation. That other offensive weapons were also recovered at the scene confirming that the Appellant and the other accused persons were armed during the robbery operation.

On contradiction in evidence learned Counsel to the Respondent stated that even where there are contradictions in the evidence of the prosecution witnesses, such contradictions must go to the root of the case before it can be-considered or the contradiction must be material and must affect the substance of the case before an appellate Court will vitiate a trial. He relied on the case of:-
1. ANYASODOR V STATE (2018) 8 NWLR (PART 1620) PAGE 107 AT 126;
2. OSETOLA VS STATE (SUPRA) PAGE 598 ST 639.

That the evidence of PW3 remained unchallenged as the defence did not challenge the evidence of PW3 and as such cannot do so through his brief of argument before this Honourable Court. He relied on the case of SEGUN OGUNSANYA VS STATE (2012) 7 NCC PAGE 65 AT PAGE 103.

That the learned trial Judge rightly held that the Prosecution had on the basis of all the evidence adduced at the trial, proved beyond reasonable doubt, the guilt of the Appellant and the other three accused persons as charged and convicted them accordingly. He urged this Court to affirm the conviction of the Appellant and dismiss this appeal.

The Appellant’s learned Counsel submitted that the essential ingredients of conspiracy and Armed Robbery for which the Appellant was charged were not established by evidence and that the evidence of prosecution witnesses consist of hearsay and material contradictions.

The Courts have over the years evolved mechanism and circumstances from which conspiracy could be inferred. It takes two or more persons to commit the offence of conspiracy which can be proved from direct or circumstantial evidence in support of the charge. There must at all times be evidence and incidence of agreement to commit the alleged offence. See. DAVID OMOLOLA VS THE STATE (2009) 7 NWLR (PART 1139) 148 AT 191 A – H TO 192 A-G. At page 192H TO 193A of the report OGUNTADE, JSC had this to say:-
“In order to get conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something lawful by unlawful means. Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact the confederates had agreed on the plan to commit a crime. There must be an overt act from which to infer the conspiracy.”

I agree with the Respondent’s Counsel that evidence of PW3, PW4 and PW8 and Exhibit E, H & J, were amply corroborated by the evidence of PW1 and PW2, the investigating Police Officers.

The act of the Appellant and the other three accused persons in entering into Bwari Area Council where they got the security men tied down before going into operation clearly shows that the Appellant and the other three accused persons conspired to commit Armed Robbery.

I am not unmindful of the learned Counsel to the Appellant’s contention that ingredients of the offence of Armed Robbery were not established.

Under our criminal Justice system, an accused person is presumed innocent until the prosecution prove his guilt. Hence, an accused is not expected to prove his innocence before the law Court. It is clearly the duty of the prosecution to establish the charge against an accused beyond reasonable doubt. See; Uche Williams v. The State (1992) 10 SCNJ 74; (1992) 8 NWLR (Pt. 261) 515; (1992) LPELR- 3492

There is no doubt that the trial Court relied on the confessional statement of the appellant to find him guilty and be convicted as charged.”
2. TERLUMEN GIKI V THE STATE (2018) 6 NWLR (PART 1615) 227 AT 247 E – H TO 248 A-B per SANUSI, JSC who said:-
“However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act, 2011 as amended. See Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 at 89.
For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely:-
(a) Through testimony or testimonies of eyewitness or witnesses, and/or
(b) Through confessional statement, voluntarily made by the accused person; and/or
(c) Through circumstantial evidence which clearly point

to the sole fact that the accused person and no other person committed the offence charged.
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit.
(i) That the accused person in the process had committed theft.
(ii) That the accused person and/or person(s) he was in company of, had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.
(iii) That the acts complained of were done in the process of committing the theft or in order to commit the theft and/on carry away the property obtained by the theft.
(iv) That the accused person did the acts complained of voluntarily and
(v) That the accused person or anyone in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery.
See Abdullahi v. The State (2008) 5 SCNJ 210/211, (2008) 17 NWLR (Pt. 1115) 203. In a nut-shell, the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death.

See: Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Tanko v. The State (2009) 7 SCNJ 19; (2009) 4 NWLR (Pt. 1131 430; Ani v. The State (2009) 6 SCNJ 105; (2009) 16 NWLR (Pt. 1168) 443; Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Okosun v. A-G. Bendal State (1989) 1 NLR (Pt. 100) 642; Nwachukwu v. State (1985) 3 NWLR (Pt. 11) 218.”
3. ADEYEMI PEDRO VS THE STATE (2018) 17 NWLR (PART 1649) 463 AT 472 E G per PETER-ODILI, JSC.

There is no doubt that the pieces of evidence given by the prosecution’s witnesses particularly PW1, PW2, PW3 PW4, PW8 and all the Exhibits tendered actually linked the Appellant with the commission of offences for which he was charged. All the elements of the two offences were proved against the Appellant. More importantly, Appellant made Exhibit H, which is a confessional statement. The said Exhibit H, the confessional statement of the Appellant encapsulates all the ingredients of charge against the Appellant. His confessional statement alone is sufficient to convict and sentence the Appellant for the offences against him. The reliance placed on Exhibit H by the lower Court cannot be faulted. See:-

CHUKWUDI OYEM VS FRN (2019) 11 NWLR (PART 1683) 333 AT 350 C – H per ABBA AJI, JSC who said:-
“Again the confessional statement of the appellant (PW2A) was tendered at page 25 of the record without objection. This implies and means that the substance confessed by him was well understood to be Indian hemp and nothing else, otherwise one cannot confess and admit what is not true. It has been contended by his counsel that the Court ought not to convict solely on his confessional statement since the test result of the substance was yet to come out. This is foul and does not have a place in our criminal jurisprudence. It is only advised that it is desirable and not mandatory: In fact, the law is trite on this that an accused can be convicted solely on his confessional statement. “A Court can convict on a confessional statement alone without corroboration once it is satisfied of the truth of the confession.” See Per Clara Bata Ogunbiyi, J. S.C. in Blessing v. FR.N (2015) LPELR-24689 (SC), (2015) 13 NWLR (Pt. 1475) 1.
I must strongly warn and state here that when a confession is made, you are hook, line and sinker admitting all the ingredients of the crime and revealing even other things

which the world or the prosecution may not know about the crime and all its ingredients especially where such a confession is unequivocally clear and voluntary without any taint of interference. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against the accused person and can be a panacea to every criminal mystery and puzzle in the criminal justice system and jurisprudence”
2.ADEYEMI PEDRO V THE STATE (2018) 17 NWLR (PART 1649) 463 AT 474 C – F per PETER ODILI, JSC who said:-
“An indepth consideration of the confessional statements produced statement voluntarily made which are direct, positive and unequivocal as to the admission of the guilt of the accused/appellant and such as sufficient to ground a conviction of the appellant irrespective of the appellant’s resiling from the statement during the trial.
I place reliance on the cases of Lasisi v. The State (2013) 9 NWLR (Pt.1358) 74 at 93; Demo Oseni v. The State (2012) 5 NWLR (Pt.1293) 351 at 387.
At the risk of over flogging an issue, it has to be said that there is no evidence stronger than a person’s own admission

or confession which is often as in the case denied or retracted at trial. That retraction does not affect its admissibility but is taken into consideration in deciding what weight to be attached to it. In that consideration of weight in the resiled confessional statement the following questions are asked of himself by the trial Judge, viz:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as the can be tested?
4. Was the accused the one who had the opportunity of committing the offence alleged?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved? See the case of Dibie v. The State (2007) 9 FNWLR (Pt. 1038) 30.’’

There is no hearsay in the evidence of the prosecution witnesses. Also, the allegation of contradiction in the evidence of prosecution witnesses is not well founded. A contradiction that will vitiate conviction of an accused must be central to the ingredients of the offence. In other words it must be material contradictions cutting at

the fountain or foundation of the offence for which the Accused/Defendant is arraigned, See:-
EMEKA MBACHU V THE STATE (2018) 17 NWLR (PART 1649) 395 AT 407 F G per T. MOHAMMED, JSC now CJN who said:-
“The point needs be re-stated that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. It is only such contradictions and or inconsistencies which are substantial and fundamental to the main issue before the Court such as would create reasonable doubt in the mind of the trial Court that are fatal to the prosecution’s case. In this case, the issue of the appellant coming down from his vehicle not after the offence had been committed, has, in my view, very little or no relevance. The fact that the deceased was knocked down by the vehicle driven by the appellant is no more in doubt as confessed also by the appellant himself (pages 23 of the record of appeal).
For a contradiction to be regarded material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case.”
Issue 1 is resolved against the Appellant.

ISSUE TWO
Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted exhibits L, M, NI & 2,01 in evidence to convict the appellant for armed robbery.

Learned Counsel to the Appellant submits that the trial Court granted leave to Respondent to amend its Charge on 3rd February, 2015, consequent upon which the Prosecution filed additional four Counts bringing the total. Counts to six Counts Charge. The trial Court after granting leave to the Respondent to amend the Charge struck out the additional four Counts in its judgment without application from any party and without inviting the Counsel to the parties to address the Court on the point. He relied on the case of ERASTUS B. O. AKINGBOLA V FEDERAL REPUBLIC OF NIGERIA (2018) 14 NWLR (PT. 1640) 395 AT 411 – 412, PARAS H – C

That the four Counts of Charge brought in by the amendment was struck out by the trial Court but the evidence of PW2 in reference to the amendment was allowed. That the evidence

of PW2 brought in Exhibits L, M, N1 & 2, 01 & 2 at page 177 of the record. That the trial Court relied on these Exhibits at page 252 of the record to convict the Appellant of armed robbery. That there is lack of fair hearing which occasioned gross miscarriage of justice against the Appellant. He relied on the case of WALTER WAGBATSOMA V FEDERAL REPUBLIC OF NIGERIA (2018) 8 NWLR (PT. 621) 199 AT 216, PARAS D – C.

He urged this Court to resolve this issue in favour of the Appellant.
In response, learned Counsel to the Respondent submits that where a person has been charged with one or more counts in a charge the prosecution may, with the leave of Court, withdraw any of the Charge or Charges or the Court may of its own strike out or stay the trial on any such Charge or Charges where it is necessary to do so. He referred to Sections 220 of the Criminal Procedure Code and Section 237 of the Administration of Criminal Justice Act, 2015.

He further submits that where an accused person is charged with an offence carrying capital punishment in the offences carrying lesser punishment and facts before the Court can establish the offences that carry

capital punishment. The Court can suo motu discountenance the other offences that carry lesser penalty. He relied on the case of SABURI ADEBAYO VS A.G. OGUN STATE (2008) 33 NSCQR PAGE 1 AT 14 – 15.

That the decision of the learned trial Judge that the addition of four other charges under Sections 97, 356, and 229 of the Penal Code respectively is undesirable and “accordingly the additional four Counts Charge are hereby struck out” does not amount to raising an issue suo motu. He relied on the case of AKEREDOLU VS ABRAHAM (2018) 19 NWLR (PT. 1628) PAGE 510 AT 532 533 PARAS H-H.

That the amended Charge was before the Court and the trial Court looked into its record and considered the Charge before coming to the conclusion that the four additional Charges brought under the Penal Code were unnecessary and undesirable and consequently struck out the four additional charges. He relied on the case of EROMOSELE VS FRN (2018) 11 NWLR (PT. 1629) PAGE 60 AT 76.

He urged this Court to hold that the striking out of the four additional Counts in the Amended Charge does not amount to the trial Court raising an issue suo motu and it does not breach the

Appellant’s right to fair hearing. And that the recalling of PW2 was in line with extant law and no miscarriage of justice was occasioned on the Appellant, as the Appellant did not state what injustice he suffered.

On the issue of amendment of Charge, Section 218(2) of the Administration of Criminal Justice Act 2015 states that the new Charge is deemed to be in the original Charge before the Court from the date of the amendment. ATTAH VS STATE (1993) 7 NWLR (PT. 305) 257. The amendment relates back to the date of the Original Charge and all the steps earlier taken in the proceedings stand and are not annulled. FEDERAL REPUBLIC OF NIGERIA VS ADEWUNMI (2007) 10 NWLR (PT. 1042) 399, RUFUS VS STATE (2014) LPELR – CA/EK/GK/2012.

Hence, it has been held that a Charge can be validly amended even after final address of Counsel PRINCENT VS THE STATE (2002) 18 NWLR (PT. 798) 49, AYODELE VS STATE (2011) 6 NWLR (2011) 6 NWLR (PT. 1243) 289 per ABIRU, JCA in SULEIMAN VS FRN (2017) LPELR – 43353 (CA).

“The position of the law on an issue raised suo motu by a Court, in my considered view would appeal to have been settled for long and as enumerated by TOBI JSC: in the

case of ENEKWE V INTERNATIONAL MERCHANT BANK OF NIGERIA LTD (2006) 19 NWLR (PT. 1013) 147, it is that basically, a Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case with evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issue suo motu. That a Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. That a Judge cannot be accused of raising an issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. See also the case of IKENTA BEST (NIGERIA) LTD V ATTORNEY-GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642 wherein TOBI, JSC reiterated the above position in these words.” A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A Judge by the nature of his adjudicatory functions, can draw references from

stated facts case and by such reference, the Judge can arrive at conclusions. It will be wrong to say that references legitimately drawn from facts in the case are introduced suo motu… ”
See also LOKULO-SODIPE, JCA in OBIAGWU & ORS V OKOROAFOR (2019) LPELR – 46689 (CA).

I agree with the learned Counsel to the Respondent that the striking out of the four additional Counts in the amended Charge does not amount to the trial Court raising an issue suo motu and it does not breach the Appellant’s right to fair hearing. No miscarriage of Justice has been occasioned to the Appellant.

Issue two is resolved against the Appellant.

ISSUE 3
Whether the learned trial Judge was right in placing absolute reliance on the confessional statements of the appellant to convict him.
Learned Counsel to the Appellant relied on the case of ALBAN AJAEGBO V THE STATE (2018) 11 NWLR (PT. 1631) 484 AT 516 PARAS B – C to state that a free and voluntary confession of guilt by an accused person, if it is direct, positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without corroborative evidence, so long as the Court is satisfied of the truth of the confession.

That the purported confessional statement of the Appellant exhibits G, H and J, were not freely and voluntarily made and they are not direct, positive, duly made and satisfactorily proved to ground his conviction. That PW1, Cpl. Hambali Mohammed said in evidence at page 124 of the record. “Tochukwu and one Uche were shot and were rushed to hospital because of the injury they sustained. They died on their way to the hospital, yet Exhibit E recorded by the Police contains a statement that Tochukwu is at large. That Exhibit E state that Ikenna and Kinsley were in Police net but none of the accused persons bear Ikenna or Kinsley. That while the Police, PW1, PW4 and PW8 testified that the Appellant was arrested at the scene of the crime Exhibit E stated that the Appellant was arrested where he was waiting to board a vehicle to Abuja.

That the Appellant stated in Exhibit E that none of them came with a gun, however the Police, PW4 and PW8 said there was exchange of gunfire between the Police and the hoodlums.

That Exhibit H does not contain facts in respect of the alleged robbery, Exhibit J is about money they shared from the robbery operation. That no witness gave evidence for the prosecution that this money was missing or that any money was received from the Appellant. That the Appellant stated in Exhibit E that they scattered to different locations when the Police were coming. He wondered at what point did they share the money. That these are incoherent and equivocal statements obtained in a manner unacceptable in law.

That the Appellant disowned the statement which the lower Court interpreted to be retraction of the statement. That the question of whether the Appellant made the statement or not ought to be decided at the conclusion of the case raised on the fact before the lower Court and the circumstance of the case. He cited the case of IREGU EJIMA HASSAN V THE STATE (2017) 5 NWLR (PT. 1557) 1 A 28, PARA B.

That the Appellant stated the circumstances surrounding the making of the statement at page 159 of the record of appeal in his evidence. That none of the prosecution witnesses testified that Appellant was shot at the scene of the crime. Thus, it can be inferred that the Appellant gunshot wound the Appellant showed the Court during trial was a

product of compelling the Appellant to make the statement. That the lower Court was wrong in placing weight on the confessional statements to convict the Appellant and he urged this Court to resolve this issue in favour of the Appellant.

In response, learned Counsel to the Respondent submitted that the Appellant in his confessional statements admitted as Exhibits G, H & J respectively admitted taking part in conspiracy and robbery at Bwari Area Council on 7th September, 2006 alongside other accused/convicts. That the retraction of the confessional statements does not affect the admissibility and weight to be attached to it especially where the trial Court was satisfied of its voluntariness. He relied on the following cases:-
1. GALADIMA VS STATE (2012) PART 52 NSCQR PAGE 525 AT 144;
2. ADEYEMI PEDRO VS THE STATE (2018) ELC 2421 SC PAGE 1 AT 16.

That where an accused person wishes to impeach or resile from his earlier extra-judicial statement, he has the onerous task to establish that his earlier written confessional statement cannot be true or correct. He relied on the case of HASSAN V THE STATE (2001) 11 SC 106.

That the Appellant while denying his extra-judicial confessional statements did not show by concrete evidence that he was not correctly recorded; or that he infact did not make the statement in terms of denial of the signature or the content, or that he was unsettled in mind at the time he made the statements or that he was induced to make the statements.

That even though the confession of an accused is binding on him alone, where four accused persons are charged together as in the instant case and each made a statement implicating the other and suggestive, of the fact that they were acting in concert, the trial Court cannot shut its eyes on those statements especially where there is corroboration from independent witnesses. He relied on the case of EMEKA V STATE (2001) 14 NWLR (PART 734) PAGE 666 AT 694 – 695.

That the Appellant cannot blow hot and cold at the same time. He denied making any statement to the Police when it was tendered by the prosecution and at the same time claimed that he made the statement voluntarily. The assertion of the Appellant in his statement made on 7th September, 2006 that some of the accused persons are at large is not inconsistent with the

facts of the case. That the Appellant, at the time he made the statement would not have known that the accused persons mentioned in his statement were dead or had been injured. That the arguments of the Appellant’s Counsel are misconceived and are at variance with the evidence before the trial Court.

That the question of whether or not the Appellant made the statements and voluntarily too was made clear by the trial Court while evaluating the evidence adduced by the prosecution.

He concluded by relying on the case of EMMANUEL EGWAJE VS COMMISSIONER OF POLICE, APPEAL NO. CA/A/1160/2016, Judgment delivered on 13th December, 2019 by ABDU ABOKI, PJCA to state that the offences of conspiracy to commit armed robbery and armed robbery were proved beyond reasonable doubt against the Appellant. He urged this Court to affirm the conviction of the Appellant and dismiss this appeal as lacking in merit.

Now, the submission of the Appellant’s learned Counsel is that Exhibits E, H and J relating to the Appellant were made under suspicious circumstances. That the learned trial Judge did not properly evaluate the confessional statements of the Appellant which are inconsistent with the evidence of the Prosecution witnesses.

The law is settled that in civil or criminal matters, the trial Court is always in the best position to assess and evaluate the evidence of those who testified or gave evidence before it. Unless it is shown or positively established that by the decision is actually perverse or occasions a miscarriage of justice, an Appellate Court will not disturb the findings of the trial Court.

It must be sounded loud and clear that corroboration of a confessional statement is not necessary once the Court is satisfied that the Accused/Defendant voluntarily made the statement to the Police. Confession, once it is proved to be voluntary is an admission and direct acknowledgments that the maker of such statement committed the offence charged particularly where the confession encapsulates the elements or ingredients of the offence charged. No independent corroborative evidence is required again. The Court will be perfectly right to convict the accused person without much ado. See the cases of:-
1. JAMES OBI ACHABUA VS THE STATE (1976) LPELR – 63 (SC) per OBASEKI, JSC who said:-

“Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eye witnesses. Happily, in this case, we have the extra judicial confessional statements in evidence and the recovery of the several head of deceased from the grave identified by the Appellant, as the place he burned it established the truth of the confession. 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 Sykes) cr. App. R. 223, R v. Kanu 14 WACA 30, EDET 0BOSI v THE STATE (1965) NWLR 119. Paul Onochie & 7 Ors v. The Republic (1966) NNR 307 and Jimoh Yusufu v The State (1975) 6 S. C. 167.”
2. LEKAN OLAOYE VS THE STATE (2018) 8 NWLR (PART 1621) 281 AT 299 D-G per SANUSI. JSC who said:-
“It is also part of the complaints of the appellant that the trial Court had convicted him on all uncorroborated and inadmissible evidence. According to him, the trial Court solely relied on the confessional statement (exhibit H) to convict him of the offences charged. It needs to be

stressed here, that a confession of an accused person to the commission of an offence plays a vital role In the determination of his guilt. Therefore, a trial Court is free to convict him even on the confessional statement alone once that trial Court is convinced that the confession is voluntary as in this instant case. I said so because by his confession, the accused (now appellant), had confirmed the commission of criminal responsibility in terms of mensrea and actus rea. See Okeke v. State (2003) 15 NWLR (Pt.842) 25. It also needs to be emphasized and it is also settled law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v. State (2000) 7 SC (Pt. 11) 50: (2000) 12 NWLR (Pt. 680) 48: Silas v. State (1996) 1 NWLR 59. Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the appellant, I do not think that is true. As it could be fathomed, PW 1 and PW2 were eyewitnesses who had actually witnessed the entire criminal act perpetrated by the appellant

and his partners in crime. Both of them gave uncontradicted and uncontroverted testimonies, which had duly corroborated exhibit ‘H’, the appellant’s confessional statement. I must however state here that, a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu v. The State (1971)NWLR 249: Grace Akinfe v. The State (1988) 7 SCNJ (Pt. 11) 226: (1988) 3 NWLR 729; Yahaya v. The State (1986) 12 SC 282 at 290.”
The trial Judge held that the Exhibits E, H & J are free and voluntary, positive and proven to be true. There is no doubt that the prosecution has the burden to prove voluntariness of confessional statement while the accused who alleges torture or duress also has evidential burden to cast doubt on prosecution’s case that his confessional statement was not voluntarily made. There is nothing before the trial Court to show that Exhibits E, H and J were not voluntarily made.

I agree with the learned trial Judge that all the confessional statements of the Appellant satisfied the basic fundamentals of a valid confessional statement.

Issue 3 is also resolved against the Appellant.
Consequently, having resolved the three issues canvassed by the Appellant’s learned Counsel in this appeal against the Appellant, the appeal fails in its entirety and is HEREBY DISMISSED.

The Judgment of the trial Court (Federal Capital Territory High Court Abuja) delivered by HON. JUSTICE A. M. TALBA on the 12th day of October, 2015 IS HEREBY AFFIRMED.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Peter Olabisi lge, JCA.

I am in agreement with the reasoning and the conclusion which I adopt as mine that the appeal is lacking in merit. l too, do dismiss the appeal and I abide by the consequential order as made in the lead judgment.

EMMANUEL AKOMAYE AGIM J.C.A.: I had a preview of the judgment just delivered by my learned brother, LORD JUSTICE PETER OLABISI IGE, JCA.
I agree with the reasoning, conclusions and orders therein.

Appearances:

O. ONYILOKWU, ESQ. For Appellant(s)

SIMON LOUGH, ESQ. For Respondent(s)