EDET v. STATE OF LAGOS (2020)

EDET v. STATE OF LAGOS

(2020)LCN/14046CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 24, 2020

CA/LAG/CR/533/2019

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

SAMUEL EDET APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

THE RIGHT TIME TO RAISE A CHALLENGE OR OBJECT TO ANY DOCUMENT INCLUDING A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

The law is settled as decreed by the Supreme Court in several of its decisions that the right time to raise a challenge or to object to any document, including a confessional statement of an accused person, is at the time it was tendered for admission in evidence during the trial and not at the appellate Court. See Orji V. FRN (supra) referred to by the Respondent’s learned counsel where Eko JSC, relying on the earlier decision of Ibori V. Agbi & Ors (2004) LPELR-1402 reiterated the settled principle of law to the effect that a party who consented to a document being admitted in evidence is estopped by conduct from resiling from such agreement, in view of Section 169 of the Evidence Act 2011. PER ALIYU, J.C.A.

BURDEN OF PROOF IN CRIMINAL MATTERS

It is a settled fundamental principle of our criminal law that the prosecution has the burden of proof in criminal trial for the simple reason that every person who is accused or charged with a criminal offence is presumed innocent until proven guilty beyond reasonable doubt. See Sections 135 and 136 of the Evidence Act and Section 36(5) of the Constitution of Nigeria, 1999 as amended. However, the proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. See Miller V. Minister of Pensions (1947) 2 ALL E.R. 371 at 373. To discharge this burden, the prosecution must prove all the essential ingredients of the offence(s) charged to the satisfaction of the Court, by either evidence of an eye witness, or confessional statement which is direct and positive or by circumstantial evidence pointing directly to the defendant and no other. Proof by any or a combination of these methods will be sufficient. See Chukwuma V. FRN (2011) LPELR-863 and Nweke V. State (supra) among others. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos Stated sitting at Lagos, in respect of charge NO: ID/23C/13, delivered on the 21st February 2018 by Hon. Justice S. S. Ogunsanya. By that judgment, the Appellant who was the defendant was convicted of the offences of conspiracy to commit the offence of robbery and robbery contrary to Sections 297 and 295 of the Criminal Law of Lagos State 2011. He was subsequently sentenced to 21 years imprisonment for each of the two offences, but the sentences will run concurrently.

The prosecution’s case against the Appellant was that on the 15th June 2012 between 10:30 to 11:00 pm, the Appellant robbed one Semiu Elelo (PW2) of his vehicle, a black Jeep, at a place near St Paul Hospital, Toyin, along Agbado Road Lagos. PW2 was driving the said jeep, when he saw another black jeep coming towards him with full lights on, and the Appellant alighted there from walked towards him, demanded his car key and ordered him to enter the back of the vehicle. PW2 pretended to be entering the back of the car, but he ran away. As he ran, he pressed the

remote control of the jeep that was in his pocket, thereby demobilizing the vehicle. He ran to the police checkpoint at Toyin bus stop shouting for help. The police with the help of the passers-by ran towards the scene and arrested the Appellant in the vehicle because he could not move it. He was taken to the police station and later transferred to the SARS where he made a confessional statement.

During the trial, the prosecution called two witnesses and tendered the confessional statement of the Appellant, which was admitted in evidence without any objection from the Appellant and/or his counsel. The Appellant having pleaded not guilty to the charge also testified as DW1 in his defence. He denied making any confessional statement to the police, but that the police officer wrote something in paper and when he asked that the writing be read to him, the officer slapped him and threatened to blow his head off if he refused to sign the paper, that is to say that he denied making the confessional statement admitted in evidence.

After hearing witnesses, counsel on both sides filed final written addresses, adopted them and the case was subsequently adjourned

for judgment. In its judgment, located at pages 189 to 200 of the record of appeal, the trial Court found and held that the prosecution has proved the two counts charge of conspiracy to commit robbery and robbery contrary to Sections 297 and 295 of the Criminal Law of Lagos State 2011 and sentenced him to 21 years imprisonment for each offence, to run concurrently.

The Appellant was aggrieved with the judgment of the trial Court and he appealed to this Court through his notice of appeal filed on the 1st February 2019, with the leave of this Court to raise fresh issue for determination, granted on the 17th January 2019. The Appellant relied on five (5) grounds of appeal in his Notice of appeal. The record of appeal was transmitted on the 2nd April 2019, thereafter, the Appellant’s brief of argument settled by Chijioke O. P. Emeka Esq. was filed on the 22nd May 2019 containing 23 pages of argument upon the two issues he submitted for determination at page 5 paragraphs 4.1 to 4. 2 of the said brief thus:
1. “Whether the learned trial Judge was right to have convicted the Appellant based on exhibit P1, his purported confessional statement,

which ought to have been held impotent, having breached the mandatory provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State. (Distilled from ground 1 of appeal.)
2. Whether the learned trial Judge was right to have convicted the Appellant, when the Prosecution failed to prove the offences of Conspiracy to commit robbery and robbery against him beyond reasonable doubt. (Distilled from grounds 2, 3, 4 and 5 of appeal).

The Respondent filed its brief of argument settled by Adabayo Haroun Esq. (Assistant Director, MOJ, Lagos State), on 26th September 2019 out of time, but it was deemed properly filed and served on the 12th March 2020. The Respondent adopted the two issues proposed by the Appellant for the determination of the appeal. In effect, both parties are in agreement on the issues for determination and having considered the grounds of appeal, I agree with them and also adopt the Appellant’s two issues for the determination of this appeal. The two issues will be determined seriatim.

APPELLANT’S SUBMISSIONS
Issue one is a fresh issue raised with the leave of this Court and distilled from

ground one of appeal. It questioned the reliance of the learned trial Judge on the confessional statement in convicting the Appellant as charged, in view of the fact that it was recorded in breach of Section 9 (3) of the Administration of Criminal Justice Law of Lagos State, 2011, (ACJL). In arguing this issue, learned Appellant’s counsel quoted the said Section 9(3) of the ACJL, which provides that where a defendant volunteers to make a statement, his statement shall be recorded on video and in the absence of video recording, the recording of the statement shall be made in the presence of a legal practitioner of his choice. In this case, the confessional statement of the Appellant admitted in evidence as exhibit P1 was neither recorded on video nor was it recorded in the presence of the Appellant’s lawyer. It was therefore recorded in breach of the said Section 9(3) of the ACJL, which the learned counsel posited are mandatory because of the use of the word ‘shall’. That where the word ‘shall’ is used in a statute, it imports a command. The learned Counsel relied for support of his argument on the cases of

Nwankwo & Ors. V. Yaradua & Ors. (2010) LPELR- 2109 (SC), Onochie V. Odogwu (2006) LPELR-2689 (SC), INEC V. Asuquo (2018) LPELR-43885 and in particular, the case of Awelle V. The People of Lagos State (2016) LPELR-41395 (CA), where this Court held that any confessional statement recorded from a defendant that does not comply with the provisions of Section 9(3) of the ACJL shall be rendered impotent and invalid. He urged the Court to so hold in respect of the confessional statement of the Appellant and to resolve issue one in favour of the Appellant.

On issue two, the Appellant’s learned counsel did contend that the prosecution, on whom the burden of proof lie woefully failed to discharge same in proving beyond reasonable doubt the offences of conspiracy and robbery the Appellant was charged with. The learned Appellant’s counsel referred to the holding of the trial Court to the effect that since the defendant was arrested in the car of the victim, and the other vehicle from which he alighted zoomed off when Appellant was arrested indicated that the Appellant did not work alone. He posited that the said finding of the learned trial Judge was perverse because

the prosecution failed to prove by credible evidence the meeting of the minds of the Appellant with the others on a plan to carry out an illegal act. That the evidence of PW2 relied upon by the trial Court was too weak and therefore unsafe to ground a conviction for the offence of conspiracy. While conceding that the offence of conspiracy can be inferred, it was argued that there is a limit to such inference since speculation is prohibited as basis for a finding of guilt. The attention of the Court was drawn to the fact that none of the passersby who PW2 said helped in arresting the Appellant and in fact followed them to the police station, volunteered any statement to the police or called as witnesses for the prosecution, to corroborate the evidence of PW2. The Court was urged to hold that the evidence upon which the lower Court convicted the Appellant for conspiracy was precarious, unsafe and uncertain such that no fair tribunal could safely convict on it. He relied on a host of authorities including the cases of Oloyede V. State (2013) LPELR-22215 (CA), Sule V. FRN (2018) LPELR-45284 (CA), Ochiba V. State (2011) 17 NWLR (pt. 1277) 663 (SC) among others to

support his argument.

With regards to the offence of robbery of which the Appellant was convicted and sentenced, his learned counsel referred the Court to the finding of the lower Court at page 198 of the record of appeal to the effect that it believed the evidence of the PW1 and PW2 as proving the offence of robbery beyond reasonable doubt. He relied on the provisions of Section 296 of the Criminal Law of Lagos State, and the decision in the case of Adoga V. State (2014) LPELR-22944 (CA), where the ingredients of robbery were stated; and submitted that the evidence of the witnesses show that the Appellant was unable to move the jeep from its position. As such, the ingredient of stealing, being the main ingredient of the offence of robbery was not proved by the prosecution.

It was also posited that the prosecution failed to prove the second ingredient of robbery being the use of actual violence or the threat of it. He referred to the statement of the PW2 made at the police station at page 10 of the record of appeal, wherein he stated that he did not know if the Appellant had a gun because he did not see any. Also in his statement to the officers of

SARS (page 7 of the record), PW2 identified the Appellant as the person who collected his car keys from him but he did not hold any gun. That the only reason he cooperated was because their mosque warned them not to argue with robbers. But in contrast to the evidence of PW2 who was the victim, PW1 testified that he was robbed at gunpoint. It was submitted that PW1 is not a witness of truth and the ingredient of violence was not proved by the prosecution. The Court was therefore urged to hold that the learned trial Judge erred when he concluded that the prosecution has proved the offences he was charged with, because the prosecution’s case was full of inconsistencies and material contradiction which makes it highly improbable that he had committed the offence. That this Court should interfere and set aside the decision of the trial Court for lack of sufficient evidence to support it. Learned counsel relied on several authorities including the cases of Idagu V. State (2018) LPELR-44343 (SC), Rafiu V. State (2012) LPELR-7897 (CA), Ayeni V. People of Lagos State (2016) LPELR-41440 (CA), Abdullahi V. State (2008) 17 NWLR (pt. 1115) 203 219 and Nwosu V. State

(1986) 4 NWLR (pt. 35) 384 at 360 to support his argument and in urging the Court to resolve issue two in favour of the Appellant.

RESPONDENT’S SUBMISSIONS
As stated earlier, the Respondent adopted the two issues crafted by the Appellant. On issue one, regarding the potent/validity of exhibit P1, the learned Respondent’s counsel argued that one of the ways of proving the guilt of an accused person is through his voluntary confessional statement. That in this case, the confessional statement of the Appellant was admitted in evidence without any objection from him and his counsel, and it is too late for the Appellant to object to the admissibility of same. He relied on the case of Orji V. FRN (2019) LPELR 46534 (SC), where the Apex Court held that the best time to object to the admissibility of a document is during the trial when the document is being tendered and not by way of appeal. And that a party who consented to a document being admitted in evidence is estopped from reselling from his agreement to it.

The learned Respondent’s counsel further contended that contrary to the argument of the Appellant, exhibit P1 was

corroborated by testimonies of the PW1, the investigation officer and PW2, the victim. That confessional statement is the best form of evidence where it was made voluntarily. He relied on Section 28 of the Evidence Act and case of Adebayo V. A.G. Ogun State (2008) LPELR-80 (SC) in support.

With regards the complaint of non-compliance with Section 9(3) of the ACJL, it was submitted that the said Section 9(3) is ultra vires the Constitution of Nigeria, 1999 (as amended), being an evidence provision. That evidence is in the exclusive preserve of the National Assembly. This Court recently held that the provisions of Section 9(3) of the ACJL of Lagos State can only complement and not override the substantive Evidence Act. See the Appeal NO: CA/L/1371C/2016 – Chijioke Ahuanna Emmanuel V. FRN delivered on the 25th April 2018, (unreported). This decision is latter in time than the decisions inZhiya V. People of Lagos State (supra), Olusegun Agbanimu V. FRN (supra) and Eneche V. The People of Lagos State (supra) relied upon by the Appellant. It was posited that the law governing the admissibility of a confessional statement is the Evidence Act 2011, and that once

there is substantial compliance with Evidence Act, the provisions of ACJL, which are only complimentary to it will not apply. The Court was referred to the case of Oguntoyinbo V. FRN (2018) LPELR-45218 (CA), Eze V. FRN (2018) LPELR- 46112 (CA) and Ajiboye V. FRN (2018) LPELR-44468 (SC) in support of the submissions, and in urging the Court to discountenance the submissions of the Appellant and resolve issue one in favour of the Respondent.

On issue two, the Respondent’s learned counsel argued that the law is settled that the prosecution can prove its case against an accused beyond reasonable doubt by direct oral evidence of witnesses or by confessional statement of the accused voluntarily made or by circumstantial evidence. That among the three methods, proof through a confessional statement of the accused, if voluntary, direct and positive occupy the highest place of priority and by itself, it is enough to ground a conviction. SeeTaiye V. State (2018) LPELR-44466 (SC).

On the offence of conspiracy, it was argued that there was direct eye-witness account through the evidence of PW1 and PW2 showing that there were occupants of the black jeep

from which the Appellant alighted, who beamed the lights on the victim and who zoomed off upon realizing that the Appellant was about to be arrested.

With regards to the offence of robbery, it was submitted that the argument of the Appellant to the effect that the evidence of the victim was too weak to ground conviction is misconceived. Rather, that the evidence of PW2 stating what he saw was cogent and believable. He relied on Section 167(a) of the Evidence Act and the case of Makanjuola V. State (2018) LPELR-45694 CA, to the effect that a man found in possession of stolen goods soon after they were stolen is either the thief or that he received the goods knowing that they were stolen.

On the argument of the Appellant to the effect that the evidence of the prosecution before the trial Court was filled with contradictions and inconsistencies, the Respondent’s learned counsel submitted that the words inconsistencies, or discrepancies in the evidence of a witness connote the act of reversing oneself or changing a course from what the witness stated earlier. Further that it is only material inconsistencies that go to the substance of the charge

and are capable of rendering the evidence of a witness unreliable that will make the conviction thereon liable to be overturned. He referred us to the Apex Court’s decisions in Godwin Alao V. State (2015) LPELR-24686 (SC) and Ochani V. State (2017) LPELR-42352 (SC). In this case, the vehicle (jeep) that was stolen was not parked, but it was in the possession of PW2 when he was assailed by the Appellant. The Court was urged to hold that the Respondent did prove its case beyond reasonable doubt before the trial Court and to resolve issue two its favour.

In the Appellant’s reply brief, the learned Appellant’s counsel posited that the Respondent misconceived the Appellant’s argument on exhibit P1. That the Appellant did concede and it is not in contention that the Evidence Act 2011 governs admissibility and relevancy of evidence. However, his complaint on exhibit P1 is not admissibility but cogency. He conceded that the confessional statement was rightly admitted by the trial Court, but it is impotent to ground the conviction of the Appellant in view of Section 9(3) of the ACJL. He further argued that the decision of this Court in

Chijioke Ahukanna Emmanuel V. FRN (unreported), is distinguishable and inapplicable to this case because in that case the complaint of the Appellant was that his confessional statements were wrongly admitted in evidence during a trial within trial. This Court rejected the argument because admissibility is governed by the Evidence Act and not the ACJL. It was not his contention that the statement recorded in contravention of Section 9(3) of ACJL was inadmissible, but that no weight can be accorded to it for contravening the said provisions.

He argued that contrary to the stance of Respondent, Section 9(3) of the ACJL is not in conflict with the Evidence Act, but this Court (Lagos judicial division) has taken the position to the effect that the said provisions are mandatory and failure to comply with the section in the recording of the statement of an accused renders such confession invalid. See Zhiya V. The People of Lagos State (supra), Awelle V. People of Lagos State (supra), Agbanimu V. FRN (2018) LPELR-43924 (CA), Eneche V. People of Lagos State (2018) LPELR-45826 (CA), Fatoki V. The State (unreported) etc.

He further relied on the case of

Natsaha V. State (2017) LPELR-42359 (SC) and Ogunjimi V. State (2017) LPELR-42768, to the effect that the fact that evidence oral or documentary is admissible does not mean that it has any probative value or weight at all. He posited that in all the cases relied upon by the Appellant this Court did not misconceive the issue of admissibility with potency under ACJL, but distinguished the two parallel issues. That there is no clash of legislative powers on Evidence as erroneously argued by the Respondent. He drew the Court’s attention to the fact that the National Assembly, which enacted both the Evidence Act and the Administration of Justice Act, (ACJA) intended that admissibility would be governed by the Evidence Act and not the ACJA. He urged upon the Court to resolve the issues raised and clarified in favour of the Appellant and to discharge and acquit him.

RESOLUTION
ISSUE ONE
This issue distilled from ground one of appeal is a fresh issue raised with the leave of Court for the first time in this appeal. It was not an issue before the trial Court as such it did not make any pronouncement on the validity or potency of the confessional statement of the

Appellant admitted as exhibit P1 in view of the provisions of Section 9(3) of the ACJL. The complaint of the Appellant as contained in his ground one of appeal and under this issue crafted therefrom is that even though the confessional statement was relevant, admissible and admitted in evidence without any objection, it was of no value and should not have been considered in finding the Appellant guilty of the charge against him, for non compliance with Section 9(3) of ACJL. It was the position of the Appellant that the provisions of the said section are mandatory. That by the several decisions of this Court, its position is that non compliance with the provisions of the said section made the confessional statement impotent and invalid. However in the Appellant’s reply brief he appeared to change this position he vehemently argued and contended that the Appellant’s case was not the admissibility of exhibit P1 but its relevancy or cogency as he puts it.
On his part, the learned Respondent’s counsel did contend that the provisions of the ACJL cannot override the provisions of the Evidence Act. I have carefully read all the decisions relied

upon by Appellant and the Respondent and other similar ones relevant to this matter and I note the dates of those decisions. The case of Awelle V. The People of Lagos State (supra) and Zhiya V. The People of Lagos State (supra) were delivered in 2016 by this Court. The case of Oluwatoyin V. The State (2018) LPELR 44441 (CA) was delivered at Akure division on the Court on the 9th March, 2018. The case of Agbanimu V. FRN (2018) LPELR-43924 (CA) was delivered on the 19th March 2018 and Eneche V. People of Lagos State (2018) LPELR-45826 (CA) was delivered on the 20th April 2018. The common denominator on all these cases is that the provisions of Section 9(3) of the ACJL were mandatory for the police to follow and that failure to follow same will render the confessional statement invalid.
However, the latest and therefore current decision of this Court on the effect of noncompliance with Section 9(3) of the ACJL appeared to be unreported case of Chijoke Ahukanna Emmanuel V. FRN (supra), delivered on the 25th April 2018. In that decision, Nimpar JCA relied on the case of Okando V. P.L.S. (2016) ALL FWLR (pt. 851) 1308 to hold that the non compliance with the provisions

of ACJL in recording the statement of the Appellant did not affect the relevancy and the admissibility of the confessional statement. The learned jurist further held at pages 10 to 11 of the judgment that:
“…. Agreed that the ACJL is a procedural law which the states can legislate on and binds the Courts but where there is a substantive law that overshadows the provisions of procedural law then, the substantive law shall prevail. The Evidence Act also provides a detailed requirement of testing a confessional statement before it is admitted and acted upon by the Court….”
I am not only bound by the above latest decision of this Court, but I totally agree that the only relevant provisions relating to admissibility and even validity of the evidence whether oral or documentary remain the Evidence Act, 2011 the substantive law. See Oguntoyinbo V. FRN (supra) referred to by the Respondent, where Owoade, JCA held that the Evidence Act being specific Act on evidence takes precedence over ACJA in matters of admissibility of evidence and since the presence of a lawyer or video recording of the statement of the accused person are not

provided for in the Evidence Act, the provisions of ACJA to that effect are not applicable. The ACJL being a procedural law should be and remain complementary and administrative and should be wherever practicable be applied for the betterment of administration of justice.

In this case, the Appellant’s confessional statement is contained in pages 13 to 14 of the record of appeal and for clarity and guidance, it reads in part as follows:
“…On 15th day of June 2012 at about 2230hrs, when I was returning from a ceremony at Ijushaga, I went to St. Paul bus stop at Iju and made attempt to snatch a Nissan pathfinder jeep and I succeed in snatching the jeep but when I was trying to starting (sic) the engine in order to drive away but the engine could not start, to my surprise passersby in the area came and attacked me and I was seriously beaten up by these mob which made me to sustain injury all over my body. I don’t have gang of car snatch and I am not an armed robber. I collected the keys of the jeep from the owner with ordinary word of mouth. I did not use any weapon to scare him before I collected jeep. I know that I did robbery for

the fact that I snatched the motor from him because the Nissan pathfinder was not mine. I wish the police to temper justice with mercy…”

It is not in contention that the Appellant and his counsel did not object to admissibility of the confessional statement when it was tendered during the trial. The law is settled as decreed by the Supreme Court in several of its decisions that the right time to raise a challenge or to object to any document, including a confessional statement of an accused person, is at the time it was tendered for admission in evidence during the trial and not at the appellate Court. See Orji V. FRN (supra) referred to by the Respondent’s learned counsel where Eko JSC, relying on the earlier decision of Ibori V. Agbi & Ors (2004) LPELR-1402 reiterated the settled principle of law to the effect that a party who consented to a document being admitted in evidence is estopped by conduct from resiling from such agreement, in view of Section 169 of the Evidence Act 2011. In other words, the Appellant must not be allowed to approbate and reprobate at the same time thereby dribbling the Court. See also the case of

Hamman v. State (2018) LPELR- 45392 (CA) where Jauro, JCA held that where a confessional statement is admitted without any objection, the irresistible inference is that same was made voluntarily and a Court can rely and convict on it. It must be borne in mind also that an appeal is not a fresh trial or an inception of a new case. Adegoke Motors Ltd V. Adesanya (1989) NWLR (pt. 109) 250 (SC). From all I have stated supra, it is my view that in this case, the appellant who did not challenge the admissibility of his confessional statement at the trial will not be allowed to challenge same on appeal. It amounts to an abuse of Court’s process to do so. The learned trial Judge was entitled to consider the confessional statement along with other evidence before it to determine the guilt of the Appellant. Indeed it rightly did so when it held at page 198 of the record of appeal that:
“It is trite law that once a confessional statement is admitted in evidence and it is unchallenged it forms part of the case for the prosecution and the trial Court is bound to consider its weight and probative value to be attached thereto.”

The position taken by the learned trial Judge was based on the correct principle of law.

The law is that admissibility of the confessional statement of the Appellant is completely different from the weight to be attached to it in the final determination of his guilt.

The learned trial Judge was on the right legal path by examining the entire evidence placed before her including the viva voce of the appellant as DW1 which contradicted his confessional statement and held at page 200 of the record that:
“The law is that where a party makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is regarded as evidence upon which a Court can act.”

The above finding showed that the Appellant was not convicted solely on his confessional statement, as he posited under this issue. A close examination of the trial Court’s judgment, particularly at pages 190 to 194 of the record of appeal, revealed that the learned trial Judge reviewed and considered extensively, the evidence called by the prosecution and the defendant, including the documents admitted in evidence. His Lordship proceeded to

make the following findings at the conclusion at page 198 of the record thus:
“From the facts proved in this case, the victim positively identified the Defendant as the person who robbed him. PW1 testified that the defendant and the car were handed over to him by the police. This Court believes that these are material facts that the prosecution needed to prove beyond reasonable doubt and this was done by the prosecution.”

The trial Court cannot be faulted and I so hold. Issue one is resolved against the Appellant.

ISSUE TWO
This issue raises the question whether the trial Court was right when it convicted the Appellant for the offences charged when the prosecution failed to prove offences against him beyond reasonable doubt. It is a settled fundamental principle of our criminal law that the prosecution has the burden of proof in criminal trial for the simple reason that every person who is accused or charged with a criminal offence is presumed innocent until proven guilty beyond reasonable doubt. See Sections 135 and 136 of the Evidence Act and Section 36(5) of the Constitution of Nigeria, 1999 as amended.

However, the proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. See Miller V. Minister of Pensions (1947) 2 ALL E.R. 371 at 373. To discharge this burden, the prosecution must prove all the essential ingredients of the offence(s) charged to the satisfaction of the Court, by either evidence of an eye witness, or confessional statement which is direct and positive or by circumstantial evidence pointing directly to the defendant and no other. Proof by any or a combination of these methods will be sufficient. See Chukwuma V. FRN (2011) LPELR-863 and Nweke V. State (supra) among others.

The complaint of the Appellant under this issue, which has been partly resolved under my consideration of issue one supra, is that the prosecution failed to prove the essential ingredients of the offences the Appellant was charged with and therefore the trial Court erred when it convicted him as charged. In particular, it was argued that the evidence of the prosecution in proof of the two offences was too weak to ground his conviction.

I have already found supra that the trial Court extensively considered the evidence placed before it by the prosecution,

including the confessional statement of the Appellant before arriving at the conclusion to the effect that the prosecution has proved the offences of conspiracy beyond reasonable doubt. See page 199 of the record of appeal, where the trial Judge held rightly and this is conceded by the learned Appellant’s counsel (paragraph 5.29 of the Appellant’s brief) that “The Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent common acts between or among the conspirators.” After considering the evidence of PW2, the victim came to the conclusion that the jeep which beamed its lights on the Appellant and zoomed away after the Appellant was arrested did not do so on its own. From this it concluded that the Appellant did not work alone.
It is generally agreed that conspiracy can seldom and rarely be proved by direct evidence. Rather the Courts have to rely on circumstantial evidence and inference from certain proved facts. See Obiakor V. The State (2002) 6 S.C. (Pt. 11) 33. The trial Court was therefore on firm legal ground to infer conspiracy from the facts proved by the evidence of PW2 the eye

witness and I cannot interfere with that finding.

With regards to the offence of robbery, it simply means stealing with violence, or threat of violence. The Appellant was charged under Section 296 of the Criminal Law of Lagos State 2011, which has the same provisions with Section 15(1) of the Robbery and Firearms (Special Provisions) Cap. 398 LFN 2004, that defined robbery thus:
“Robbery means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance of its being stolen or retained.”

In this case, the learned trial Judge at page 197 of the judgment considered the circumstances of the case and the evidence of PW2. The circumstances are that PW2 was who was driving his jeep was blocked along the road by another jeep which beamed its full light on him. The Appellant alighted from that jeep and demanded that PW2 handed him his car keys while ordering him to enter the back of the car. PW2 pretended to do as ordered but ran away shouting for help. Passers-by beat up the

Appellant and got him arrested. The defendant indeed confirmed that he was badly beaten. Though PW2 said he did not see any weapon with the Appellant, he knew he was being robbed and has the fear of violence for he told the Court that his mosque advised them not to argue with robbers. The trial Court believed the testimony of the prosecution’s witnesses and found that the prosecution proved the ingredients of the offence of robbery against the Appellant. In my determination of issue one I have affirmed this finding of the trial Court as correct. I adopt my reasoning under issue one and decline to interfere with the finding of fact of the learned trial Judge. In effect, issue two is also resolved against the Appellant.

Having resolved the two issues against the Appellant, it means that this appeal lacks merit and it is hereby dismissed by me. The judgment of the Lagos State High Court in respect of charge NO: ID/L/915C/2018 is hereby affirmed by me.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in advance, the leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, JCA. I agree with the reasoning and conclusion in

I, too, visit a deserved dismissal on the appeal. I abide by the consequential orders decreed in it.GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, BALKISU BELLO ALIYU, JCA obliged me with the draft of the leading judgment just delivered wherein he found the appeal unmeritorious and dismissed it.
I really have nothing to add than to agree with his analysis of the issues set down for determination and the resolution of the said issues. Reading the record of appeal and the grounds of appeal, I have no doubt that the Appellant was clutching to straw in order not to get drowned in the flood of his conviction by the lower Court, and I entirely agree that any provision of the Administration of Criminal Justice Law of Lagos State, supra which veered off the clear track of being an adjectival provision that relate to procedural matter, must be read and considered in subordination to the provision of the Evidence Act, 2011 or any Act on which specific provision has been made by the National Assembly. Rules of procedure in the Administration of Criminal Justice Law, 2015 can not be read and applied as supplanting substantive provisions of an Act

which deal specifically with the issue of admissibility of confessional statements made by a suspect after he was arrested. Were the Appellant serious about the issue of admissibility of the confessional statements he volunteered after he was arrested according to him, in the jeep of PW1, the appropriate time to do so was when the Respondent sought to tender the said confessional statement in evidence during the trial.

I agree that the issues raised in the appeal when read with the grounds of appeal in the light of the judgment of the lower Court, were after-thoughts intended to pull wool over the face of the Court with the hope, if I may say so, that even though it is said that “the Law is an ass”, that it will be administered by a judex that is also a “master ass”. It was a wrong assumption.

Appeal is dismissed by me too and I abide with the orders made in the lead judgment.

Appearances:

CHIJIOKE O. P. EMEKA ESQ., with him, A. A. BARUWA ESQ. For Appellant(s)

ADEBAYO HAROUN ESQ. (ADPP, MOJ LAGOS STATE), with him, K. A. BAMGBOSE ESQ. (S. S. C.) and JUBRIL KAREEM ESQ. (S.C.) For Respondent(s)