FABU KOKU v. THE STATE (2019)

FABU KOKU v. THE STATE

(2019)LCN/13666(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/IB/147C/2017

RATIO

CRIMINAL LAW AND PROCEDURE: PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF IN CRIMINAL TRIALS

Now, let me commence the resolution of this issue by stating the settled position of the law that an accused person is presumed innocent until he is proven guilty and that the burden of proof placed on the prosecution in a criminal trial is proof of the guilt of the accused person beyond reasonable doubt. The prosecution is required to prove the ingredients of the offence charged as provided by the law. See STATE VS. USMAN (2005) 1 NWLR (PT. 906) 101; OBIAKOR VS. THE STATE (2002) 10 NWLR (PT. 776) 612; STATE VS. ODOMO (2019) 4 NWLR (PT. 1662) PAGE 191 AT 202 203 PARAGRAPHS H C and ONITILO VS. THE STATE (2018) 2 NWLR (PT. 1603) PAGE 239 AT 257. PER FOLASADE AYODEJI OJO, J.C.A.

CONSPIRACY: INGREDIENTS

What then are the ingredients of the offence for which the Appellant was convicted? On what is required to establish the offence of conspiracy I find the case of SIMON VS. THE STATE (2017) 8 NWLR (PT. 1566) 119 AT 139 PARAGRAPHS C H very helpful. In that case the Supreme Court per Rhode Vivour JSC held as follows:
In Oyediran v Republic (1966) 4 NSCC p. 252 (1966) 2 SCNLR 173 Coker JSC explained the modes of forming conspiracy when His Lordship said that:
1. Conspiracy may be formed in one of the following ways:
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another, and so on. This is what is called chain conspiracy.
2. In order to establish conspiracy therefore, it is not necessary that the conspirators should know each other. They do not have to know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy.
3. It becomes clear that there is said to be conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See NJOVENS VS. STATE (1973) 5 SC P. 17; MUMUNI VS. STATE (1975) 6 SC P. 79; DABOH VS. STATE (1977) 5 SC P. 197; OSETOLA & ANOR. VS. STATE (2012) 6 SC (PT. IV) P. 148, (2012) 17 NWLR (PT. 1329) 251. PER FOLASADE AYODEJI OJO, J.C.A.

ARMED ROBBERY: INGREDIENTS

On the ingredients of the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation 2004, it has been judicially settled in a plethora of authorities including the cases of FEDERAL REPUBLIC OF NIGERIA VS. BARMIWAS (2017) 15 NWLR (PT. 1588) PAGE 177 AT 210 PARAGRAPHS C D; OWOLABI VS. THE STATE (2019) 2 NWLR (PT. 1657) 525 AT 539 PARAGRAPHS A C; STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 207 AT 213 PARAGRAPHS B C; UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346 AT 368 369 PARAGRAPHS H B and ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 that to secure a conviction, the prosecution must prove the following:
(1) That there was a robbery or series of robbery
(2) That the robbery or each of the robbery was an armed robbery
(3) That the accused was the robber or one of those who took part in the robbery.
Each of the ingredients must co-exist and must be proved beyond reasonable doubt. PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL LAW: METHODS BY WHICH THE PROSECUTION CAN PROVE THE GUILT OF THE ACCUSED

It is also a settled principle of law that the recognized methods to prove the guilt of an accused person by the prosecution are:
(1) Evidence of eye witness(es)
(2) Circumstantial evidence or
(3) Extra judicial statements made by the accused person.
See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 PARAGRAPHS E F; KOLADE VS. THE STATE (2017) 8 NWLR (PT. 1566) PAGE 60 AT 89 and DIBIA VS. THE STATE (2017) 12 NWLR (PT. 1579) PAGE 196. PER FOLASADE AYODEJI OJO, J.C.A.

EVIDENCE: CONFESSION IS THE BEST FORM OF EVIDENCE

It is trite law that confession remains the best form of evidence against an accused person. Where an extra judicial statement made by an accused person is confessional it is an admission that he actually committed the alleged crime. Conviction may therefore be sustained based solely on such extra judicial statement where it is properly proved and admitted in evidence. Counsel representing an accused person owes a duty to raise an objection to the admissibility of an extra judicial statement at the point of tendering same and not at the address stage. Failure to do so at that point is conclusive evidence that it was made voluntarily. A counsel who failed to object to the admissibility of a Confessional Statement at the point of tendering cannot be heard to later challenge its voluntariness. See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 345 PARAGRAPH H A; SUNDAY VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A F; RABE VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A F; andOSUAGWU VS. STATE (2013) 5 NWLR (PT. 1347) 360. PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL LAW: WHETHER RETRACTION OF EXTRA JUDICIAL STATEMENT AT TRIAL MAKES IT UNRELIABLE

The law is settled that the fact that an accused person retracted his extra judicial statement at his trial does not make it unreliable. Once the statement is admitted in evidence, the task before the trial Court is to determine the weight to be attached to it. The Court shall evaluate the confession contained in the extra judicial statement, the oral evidence of the accused and other evidence adduced at the trial and thereafter come to a decision whether or not it was the accused person that committed the crime. See ADISA VS. THE STATE (2019) 3 NWLR (PT. 1660) PAGE 488 AT 497 498 PARAGRAPHS G B; DADA VS. THE STATE (2019) 3 NWLR (PT. 1659) 305 AT 327 PARAGRAPHS C F and AKPA VS. THE STATE (2007) 2 NWLR (PT. 1019) PAGE 500 AT 529 PARAGRAPHS F H. PER FOLASADE AYODEJI OJO, J.C.A.

CONFESSION: WHETHER A PERSON CAN BE CONVICTED SOLELY ON A CONFESSION
The Supreme Court inMUSA VS. THE STATE (2017) 5 NWLR (PT. 1557) PAGE 43 AT 64 65 PARAGRAPHS F A held as follows:
The Courts have accepted that a person can be convicted solely on his confession if made freely and voluntarily and seen as direct, positive and properly proved. As a safeguard, the Court is enjoined before acting or relying upon the said Confessional Statement to follow certain guidelines which are as follows:
(i) Whether there is anything outside the confession which shows that it may be true.
(ii) Whether the Confessional Statement is in fact corroborated.
(iii) Whether the relevant statement of fact made in it are most likely true as far as they can be tested.
(iv) Whether the accused had opportunity of committing the offence;
(v) Whether the confession is possible and
(vi) Whether the alleged confession is consistent with other facts that have been ascertained and established.
See UBIERHO VS. STATE (2005) 5 NWLR (PT. 919) 644 AT 655. PER FOLASADE AYODEJI OJO, J.C.A.

JUDGES RULES: EFFECT OF NON COMPLIANCE
The purpose of this Rule was aptly stated by the Supreme Court in the case of ISHAYA VS. THE STATE (2019) 3 NWLR (PT. 1661) 76 AT 94 PARAGRAPHS B C when Augie JSC held as follows:
The position of the law in Nigeria as laid down by this Court on non-compliance with the Judges Rules is that they are not rules of law but rules of administrative practice made for more efficient and effective administration of justice, and they should not be used to defeat justice. See OJEGELE VS. STATE (1988) 1 NWLR (PT. 71) 414 SC. As the Appellant conceded, the rule in question is not a rule of law but a rule of practice. It is trite that where the rule is not followed, a Confessional Statement must not be necessarily viewed with suspicion, as the sole purpose of the Judges Rules is to ensure that confessions are voluntary. PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICE

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

KOKUAppellant(s)

AND

THE STATE Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Ogun State High Court Abeokuta in Suit No. AB/4R/2015 delivered on the 28th day of February, 2017 wherein the Appellant and one other person were convicted on a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery and consequently sentenced to death by hanging.
The two count charge reads as follows:
COUNT I
STATEMENT OF THE OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF THE OFFENCE
JOJU KOKU (M) FABU KOKU (M) and others now at large on or about the 6th day of November, 2012 at Asiadu Village via Obafemi-Owode in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF THE OFFENCE
ARMED ROBBERY contrary to Section 1(2(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

PARTICULARS OF THE OFFENCE
JOJU KOKU (M), FABU KOKU (M) and others now at large on or about the 6th day of November, 2012 at Asaidu Village, Ajebo via Owode-Egba in the Abeokuta Judicial Division while armed with gun and cutlasses robbed Kojo Debue (M) of the sum of N300,000.00 (Three Hundred Thousand Naira).

The Appellant and his Co-accused pleaded not guilty to the two counts of the charge. At the end of the trial they were convicted and sentenced to death. The judgment is at pages 69 92 of the Record.

At the trial, the prosecution called three witnesses and tendered several documents which include the extra judicial statements made by the Complainant to the Police. The Appellant testified on his own behalf. At the close of evidence, Counsel filed and adopted their respective written addresses.

Briefly, the facts of the case as presented by the prosecution before the lower Court is that sometimes in November 2012, the Complainant was robbed of the sum of N300,000 in his house by some armed men. Immediately after the robbery, the complainant called the vigilante men guarding his area to inform them of the incident. The men immediately swung into

action by conducting a search in the neighborhood and in the process arrested the Appellant and one other person. They were later handed over to the Police.

The Appellant who is dissatisfied with the judgment of the lower Court filed the instant appeal. The Notice of Appeal which was filed on the 28th of March 2017 contains seven grounds. In line with the Rules of this Court, parties filed and exchanged their briefs of Argument. The Appellants Brief of Argument settled by Akinsumbo Samsondeen Akande Esq. was filed on the 26th of May 2017 while the Respondents Brief of Argument settled by Bamidele A. Adebayo Esq. was filed on the 15th of January 2019 and deemed as properly filed and served on the 26th of November 2019. No reply brief was filed.

Learned Counsel for the Appellant formulated the following issues for determination:
i) Whether the Prosecution before the Court below can properly invoke the jurisdiction of the Honourable Court below and the Court was right when it convicted the Appellant and sentenced him to death by hanging on the information or charge preferred against him. Grounds 1, 2 and 3.
ii) Whether on the

totality of the pieces of evidence adduced before the trial Court the guilt of the Accused/Appellant was proved beyond reasonable doubt. Grounds 4, 5, 6 and 7.

Learned Counsel to the Respondent in the Respondents Brief of Argument formulated the following issues for determination:
(1) Whether there was a valid information paper preferred against the Appellant before the trial Court at the time of convicting and sentencing the Appellant.
(2) Whether from the totality of evidence adduced at the trial, the trial Court rightly admitted and relied on the Appellants confessional statements when convicting the Appellant for the offence of Conspiracy to commit Armed Robbery and Armed Robbery.

The two issues formulated on behalf of both parties are very similar. I adopt the two issues with some variation in phraseology as the issues for determination in this appeal. They are:
1) Was the information preferred against the Appellant at the lower Court valid?
2) Was the Appellant rightly convicted of the offences of Conspiracy to commit Armed Robbery and Armed Robbery based on the evidence before the lower Court?

ISSUE 1
Was the information preferred against the Appellant at the lower Court valid?

On this issue, Learned Counsel to the Appellant submitted that the trial of the Appellant at the lower Court was based on a defective and incompetent consent letter, information and proof of evidence. This he said is because the letter of consent by which the Appellants trial was commenced does not contain the seal and stamp of any legal practitioner as required by Rules 10(1)(2) and (3) of the Rules of Professional Conduct, 2007. The letter is at page 1 of the record. He argued that where a document that should contain the approved stamp and seal of the legal practitioner who signed it does not, it will be deemed not properly signed and filed except it is rectified during the proceedings. He craved in aid of his submission the case of SENATOR SARKIN YAKI VS. SENATOR ATIKU ABUBAKAR BAGUDU (2015) ALL FWLR (PT. 810) 1026 AT 1054. He submitted that failure to affix the stamp and seal of the legal practitioner is fatal to the case of the Respondent as the mode of commencement of the trial of the Appellant is not in conformity with the law. He further submitted that the

commencement of an action with incompetent processes robs a Court of its jurisdiction to entertain the case and urged us to declare the proceedings at the lower Court a nullity. He further urged us to set aside the judgment of the lower Court as well as the conviction and sentence passed on the Appellant.

For his part, Learned Counsel to the Respondent argued that the information paper filed against the Appellant at the lower Court was valid and urged us to so hold. He submitted that the commencement date for the NBA seal in Ogun State was 19th June 2015 and would not affect the instant case which was filed before its commencement. He said the Application for the consent to prefer a charge against the Appellant pursuant to Section 340(2)(b) of the Criminal Procedure Law, Laws of Ogun State 2006 was made on the 15th May 2015 and granted by the Hon. Chief Judge, pursuant to which a clean copy of the information was filed on the 2nd of June 2015.

On the 26th of November 2018, this Court upon an application filed by the Respondent granted leave to present further evidence in this appeal. Exhibit AG1 is a certified true Copy of a Letter dated 19th June

2015 written by the Chief Registrar of the Chief Registrars Office, High Court of Ogun State informing the heads of High/Magistrates Courts of the implementation of the Nigerian Bar Association Stamps for legal documents filed at Court Registries. The exhibit by virtue of the leave so granted is part of the record which must be taken into account in the determination of this appeal.

Respondents Counsel argued that the NBA Stamp and seal cannot have a retrospective effect in Ogun State and therefore not relevant to the proceedings against the Appellant. He urged us to so hold.

Section 340 of the Criminal Procedure Law of Ogun State 2006 provides for the commencement of Criminal Proceedings before the High Court in Ogun State.
The said Section provides thus:
Section 340 (1)
(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the Registrar shall, if he is satisfied

that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly:
Provided that if the Registrar shall refuse to file an information, a Judge, if satisfied that the said requirements have been complied with, may, on the application of the Prosecutor or on his own motion direct the Registrar to file the information and it shall be filed accordingly.
(2) subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either-
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a Judge or pursuant to an Order made under Part 31 to prosecute the person charged for perjury.
A careful perusal of the above Section reveals that no particular mode is provided for the application for consent. This being so, it follows that where a perceived wrong method is applied, it will not vitiate the Application. See the case of ABACHA VS THE STATE (2002) 11 NWLR (PT. 779) 437 AT 478-479, PARAS H-B, where Belgore, JSC held as follows:<br< p=””>

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Thus, it seems that no format has been devised in States of the Federation governed by Criminal Procedure Law for laying of Information and a simple letter is enough in so far as it is accompanied by proofs of evidence and the charges containing the counts. It is a different procedure in the States applying Criminal Procedure Code Law e.g. Kaduna or Plateau State, where Rules are specifically made for the application to prefer charges under Section 185 of the Criminal Procedure Law (See Criminal Procedure (Application to prefer a charge in the High Court Rules). Suffice it however that a wrong method, if letter writing is such, will not vitiate the application once it is clear what the intendment of the Attorney-General is.
At pages 1 17 of the Record are the processes used in initiating the proceedings against the Appellant at the lower Court. Attached to the application made to the Chief Judge of Ogun State are the information, proof of Evidence as well as the Extra Judicial Statements of the Appellant. The consent of the Chief Judge dated 15th May 2015 is at page 20 of the Record. I am therefore of the view that the Respondent

complied with the provision of Section 340 of the Criminal Procedure Law of Ogun State and I so hold.
The complaint of the Appellant in the main under this issue is on the way and manner the application for consent was signed. It is that the said application was signed contrary to the provisions of Rules 10(1) and (2) of the Rules of Professional Conduct for Legal Practitioners.
The Respondent for his part argued that the said provision does not apply to the instant proceedings. The question that now begs for an answer is whether the application for consent made to the Chief Judge is caught by the provisions of Rule 10(1-3) of the Rules of Professional Conduct for Legal Practitioners, 2007.
Exhibit AG1 contain two letters. They are a circular with Ref: No.NJC/CIR/HOC/171 dated 12th May 2015 signed by the Hon. Chief Justice of Nigeria and Chairman of the National Judicial Council and addressed to All Heads of Court, Federal and State Judiciaries. It is a directive that the stamp of the Nigeria Bar Association shall be affixed to all legal processes filed at the Registry of any Court in Nigeria. The other letter is the circular No.CROG/009/5/2008

dated 19th June 2015 titled RE IMPLEMENTATION OF THE NIGERIAN BAR ASSOCIATION STAMPS FOR ALL DOCUMENTS FILED AT COURT REGISTRIES directing that the letter from the Hon. Chief Justice of Nigeria be given the widest publicity. Furthermore, the said letter gave liberty to all Heads of Court to establish procedure for the implementation of the Stamps and Seal of the NBA. The Ogun State High Court gave effect to the letter vide its circular of 19th June 2015.
The contents of Exhibit AG1 are very clear. It is trite that in interpreting a document, such document must be read as a whole. A Court should give an all-embracing construction to a document so as to achieve a harmonious result of its contents. I have gone through the two circulars contained in Exhibit AG1 and it is my firm view that the implementation of the Nigerian Bar Association Stamps for all documents filed at Court Registries made pursuant to the provision of Rule 10(1) and (2) of the Rules of Professional Conduct for Legal Practitioners 2007 came into effect in Ogun State on the 19th of June 2015 when circular No: CROG/009/5/2008 dated 19th June 2015 was issued.

The law is settled that laws are not to be construed to have retrospective effect unless the law contain provisions which make it clear and explicit that it should have retrospective effect.
See ADESANOYE VS ADEWOLE (2000) 9 NWLR (PT. 671)127 AT 147, PARAS D-E; GOLDMARK (NIG.) LTD VS IBAFON CO. LTD. (2012) 10 NWLR (PT. 1308) 291 AT 338, PARAS B-E; ORTHOPEDIC HOSPITALS MANAGEMENT BOARD VS MALLAM UMARU GARBA (2002) 14 NWLR (PT. 788)538 AT 567-568, PARAS B-A.
The application for consent to prefer Criminal Proceedings at page 19 of the Record, the information and proof of Evidence at pages 1- 9 of the Record all show that they came before Exhibit AG1. They cannot therefore be subjected to the said Exhibit. The consent of the Chief Judge of Ogun State at page 20 of the Record was given on the 15th of May 2015 while the originating processes were forwarded to the Assistant Registrar on 2nd June 2015. See page 21 of the Record. It was not a requirement to affix the NBA Stamp at the time the information against the Appellant was filed at the Ogun State High Court Registry and I so hold.
It is significant to note that even though the Rules of Professional

Conduct for Legal Practitioners was made as far back as the year 2007, the NBA did not roll out the stamp and seal for Legal Practitioners until 14th April 2015. The Chief Justice of Nigeria issued out his directives for the implementation on the 12th of May 2015 and in that letter gave liberty to each Court to establish procedure for its implementation.
The application for consent and Information filed at the lower Court met the requirements of Section 340 of the Criminal Procedure Law of Ogun State. They were filed before the NBA Stamp and Seal Policy became operative in Ogun State.
This being so, I would answer the question whether the information preferred against the Appellant at the lower Court is valid in the affirmative. It is to be noted that the Appellant did not complain at the trial Court about the application that originated his trial. He pleaded to the charge and participated fully in the trial from beginning to the end. It is now too late in the day to bring this type of complaint on appeal. See Sections 167 and 340 (3)(b) of the Criminal Procedure Law of Ogun State and the case of LANRE VS THE STATE (2019) 3 NWLR (PT. 1660) 506 AT

521, PARAS B-C.
I must also succumb to the temptation of stating that this issue as raised by the Appellant bothers on technicality because of the circumstances in which it was raised. The Appellant who pleaded to the charge, cross examined the prosecution witnesses and entered his defence, did not see the need to complain about the stamp and seal of the NBA on the originating process throughout his trial. His complaint is not that he was not served with the charge and the proof of evidence of the witnesses. The charge was read to him, he understood same and pleaded accordingly.
The era of technicality is long gone and the general attitude of the Court is to focus squarely on attainment of substantial justice. The Supreme Court per Bage JSC in HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & 5 ORS. VS. HON. TIMOTHY OWOEYE & ANOR (2017) 12 NWLR (PT. 1580) PG. 364 AT 394 PARAS B G held as follows:
We are not judicial technicians in the workshop of technical justice. The jurisprudence or logic of our reasoning is, and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into

the error of technicalities is well settled. The principle has been rehashed in a long line of authorities for example NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C.) VS. JOHNSON (2007) 49 WRN PAGES 169 170 where Odili JCA (as he then was) opined as follows:
… The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the Court of substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC. (2002) 7 NWLR (PT. 766) 447 AT 476 477.
The attitude of the Court has since charged against deciding cases on mere technicalities. The attitude of Courts now is that cases should always be decided on merit…
In view of all the foregoing I resolve this issue against the Appellant and hold that the information and all other originating processes filed at the lower Court are valid.

ISSUE NO:2
Was the Appellant rightly convicted of the offences of conspiracy to commit Armed Robbery and Armed Robbery based on the evidence before the lower Court?

Learned Appellants Counsel submitted in support of this issue that the prosecution failed to prove the offences for which the Appellant was convicted beyond reasonable doubt and that failure to do so should earn the Appellant a verdict of discharge and acquittal. He relied on the case of ADEYEMO VS. THE STATE (2015) 4 5 SC (PT. II) PG. 112 AT 129 PARAS 30 35. He argued further that the evidence of P.W.1 who never witnessed the act of robbery but only narrated what he was told by one Kojo Debue the victim of the said robbery amounts to hearsay evidence which is inadmissible. He went on to submit that the content of Exhibit A which is the extra judicial statement of P.W.1 is diametrically different from his oral testimony before the Court. He submitted further that the ingredient of possession of arms when the alleged offence of robbery was committed was not proved. He urged us to hold that the testimony of P.W.1 is full of inconsistences which should not have been relied upon to convict the Appellant.

It is Counsels further submission that Exhibit A being ordinarily inadmissible can only be tendered and admitted for the purpose of

cross examining and discrediting P.W.1 by the defence. He urged us to hold that the reliance placed on the evidence of P.W.1 and Exhibit A in convicting the Appellant occasioned a miscarriage of justice. He craved in aid the case of ADEYEMI VS. THE STATE (2015) ALL FWLR (PT.790) 120 SC.

Still on the evidence presented by the prosecution at the trial, Counsel submitted that the testimony of P.W.2 and P.W.7 who are police officers was based on what was reported to them by P.W.1 and the Complainant, Kofo Debue who was not called as a witness. On the evidential value of Exhibit D1 and H made by Kojo Debue, Counsel argued that by the virtue of Sections 232 and 233 of the Evidence Act, 2011 the only use to which the documents can be made is for the purpose of cross examination of witnesses by the defence Counsel. He relied on the case ofEKANG VS. THE STATE (2001) FWLR (PT. 68) 1123 AND BALOGUN VS. A. G. OGUN STATE (2002) FWLR (PT. 100) PG. 1237.

On the effect of failure to call Kojo Debue as a witness in this case, he submitted that the prosecution failed to do so because his evidence would be unfavourable to the prosecutions case and support that

of the Appellant. He submitted and urged us to so hold that failure to call Kojo Debue who informed P.W.1, P.W.2 and P.W.3 of the offences for which the Appellant was convicted as a witness makes the testimony of those witnesses hearsay evidence and not admissible to prove the offences of conspiracy and armed robbery.

Learned Counsel for the Appellant conceded that the prosecution is entitled to prove the offences for which the Appellant was convicted by relying solely on his Confessional Statement but submitted that such statement must be direct and cogent, and that where an accused person such as the Appellant retracts his Confessional Statement it is desirable for it to be corroborated by independent evidence. He relied on the case of GABRIEL VS. THE STATE (2010) 6 NWLR (PT. 1190) 280 AT 334 PARAGRAPHS E G to submit that it was wrong for the trial judge to have used the testimony of PW1 and PW2 to corroborate the contents of Exhibits G and J tendered by them.

On Exhibits G and J which are the Confessional Statements of the Appellant, he submitted that the law requires that they be corroborated before conviction could be founded on them. He

argued further that failure to prove that the Appellant was taken before a superior officer for endorsement of these statements was fatal. He relied on the case of OGUDO VS. THE STATE (2011) 18 NWLR (PT. 1278) PAGE 1 AT 30 PARAGRAPHS C H to submit that a retracted Confessional Statement that will lead an accused person to the world beyond must be endorsed by a superior officer and signed by the accused person.

In conclusion, Counsel urged us to quash the judgment of the trial Court and enter a verdict of discharge and acquittal against the Appellant. Learned Counsel to the Respondent arguing per contra in the Respondents Brief of Argument urged us to hold that the lower Court was right when it held that the prosecution has proved its case against the Appellant beyond reasonable doubt. On the first ingredient of the offence of armed robbery which is that there was a robbery, he submitted that the fact of robbery is borne out by Exhibits D1 and H and that parties are ad idem that there was a robbery on 5th November, 2012. He urged us to hold that this ingredient was proved.

On the second ingredient which is that the Appellant was armed,

counsel submitted that the evidence of PW1 and Exhibits D1, H, G and J contain proof that the Appellant and others were armed at the time of the robbery. He relied on the case of OSUNG VS. THE STATE (2011) 11 SCM 176 AT 197 to submit that the fact that an accused person charged with armed robbery was not personally armed would not avail him if he was in company of a person armed. On the third ingredient of the offence of armed robbery, learned counsel referred to the contents of Exhibit D1 and H to submit that when evidence of an eye witness fixes an accused person to the scene of crime as in this case the identity of the accused person is established and an identification parade becomes unnecessary. He conceded that the complainant was a vital witness at the trial but submitted there was evidence before the Court that the complainant and other villagers had deserted the village by the time the police got there. He then went on to argue that the Confessional Statement of the Appellant satisfied the burden placed on the prosecution. He submitted further that Exhibits G and J qualify as confession by the Appellant and they satisfy the provision of Sections 28

and 29(1) of the Evidence Act 2011. He submitted further that despite the retraction of the statements they were rightly admitted and the only consideration is the weight to be attached to them. He pointed out that the statements were admitted in evidence without objection from the Appellant.

Learned Counsel concluded in paragraph 6.01 of the Respondents Brief as follows:
6.01 In view of the argument canvassed in this brief, this Honourable Court is humbly urged to hold as follows:
(a) That the learned trial judge was right to have relied on Exhibits G and J which were confessional statements made by the Appellant.
(b) That the prosecution proved the offences of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt, the Appellant having confessed in his statement that he and some others carried out the armed robbery incident.
(c) That the evidence of the prosecution witnesses against the Appellant is strong evidence corroborating his confessional statements.
(d) That the Appellant was properly identified by Exhibits G and J.
(e) That the Appellant had the opportunity

of committing the offence.
(f) I urge this Honourable Court to dismiss this appeal and affirm the decision of the trial Court.

The Appellant was arraigned before the trial Court on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(b) and 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11 Laws of the Federation 2004. What then are the ingredients of the offence for which the Appellant was convicted? On what is required

to establish the offence of conspiracy I find the case of SIMON VS. THE STATE (2017) 8 NWLR (PT. 1566) 119 AT 139 PARAGRAPHS C H very helpful. In that case the Supreme Court per Rhode Vivour JSC held as follows:
In Oyediran v Republic (1966) 4 NSCC p. 252 (1966) 2 SCNLR 173 Coker JSC explained the modes of forming conspiracy when His Lordship said that:
1. Conspiracy may be formed in one of the following ways:
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another, and so on. This is what is called chain conspiracy.
2. In order to establish conspiracy therefore, it is not necessary that the conspirators should know each other. They do not have to know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy.
3. It becomes

clear that there is said to be conspiracy when A and B agree to commit a crime, and the agreement between A and B can be inferred after examining the facts of the case. See NJOVENS VS. STATE (1973) 5 SC P. 17; MUMUNI VS. STATE (1975) 6 SC P. 79; DABOH VS. STATE (1977) 5 SC P. 197; OSETOLA & ANOR. VS. STATE (2012) 6 SC (PT. IV) P. 148, (2012) 17 NWLR (PT. 1329) 251.
It follows therefore that to establish the offence of conspiracy against an accused person; the prosecution will be required to prove the existence of an agreement by the accused person with others to commit an unlawful act coupled with intent to achieve the objective of the agreement. In other words the prosecution must prove the existence of an agreement between two or more accused persons to do or cause to be done an illegal act or a legal act by an illegal means.

1588) PAGE 177 AT 210 PARAGRAPHS C D; OWOLABI VS. THE STATE (2019) 2 NWLR (PT. 1657) 525 AT 539 PARAGRAPHS A C; STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 207 AT 213 PARAGRAPHS B C; UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346 AT 368 369 PARAGRAPHS H B and ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 that to secure a conviction, the prosecution must prove the following:
(1) That there was a robbery or series of robbery
(2) That the robbery or each of the robbery was an armed robbery
(3) That the accused was the robber or one of those who took part in the robbery.
Each of the ingredients must co-exist and must be proved beyond reasonable doubt. It is also a settled principle of law that the recognized methods to prove the guilt of an accused person by the prosecution are:
(1) Evidence of eye witness(es)
(2) Circumstantial evidence or
(3) Extra judicial statements made by the accused person.
See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 PARAGRAPHS E F; KOLADE VS. THE STATE (2017) 8 NWLR (PT. 1566) PAGE 60 AT 89 and DIBIA VS. THE STATE (2017) 12 NWLR

(PT. 1579) PAGE 196.

From the judgment of the lower Court, it is apparent the Court placed heavy reliance on the extra judicial statements made by the Appellant to convict him. At page 86 of the record the trial judge observed thus:
It must be noted that in this instance, the voluntariness of the extra judicial statements of the accused persons has never been made an issue. Once, as in this instance, a Confessional Statement is admitted in evidence and it is unchallenged, it forms part of the case for the prosecution and the Court is bound to consider its weight and the probative value to be attached thereto. See NWANGBOMU VS. THE STATE (1994) 2 NWLR (PT. 327) 380; EKPE VS. THE STATE (1994) 9 NWLR (PT. 368) 263.

The Court at page 89 of the record held thus:
The confession of the 1st and 2nd accused persons in Exhibits F, K, G & J are also well corroborated by the evidence of PW1 & PW2. It is evidently clear that 4 men including the 2 accused persons went to rob but only the 2 accused and late Olajide Kassim were arrested in the bush near the scene of the crime. I believe the evidence of PW1 that it was during the

exchange of gunshots that Olajide Kassim received a gunshot injury on his leg. I disbelieve the oral evidence of DW2 that it was on the way to the vigilante post that the vigilante men brought down Olajide Kassim from the motor cycle, shot him on the leg and carried him back to the motorcycle. This piece of evidence from DW2 borders on the absurd and is unacceptable.”

The Lower Court further held at page 89 90 of the record thus:
“The confessions in Exhibits F, K, G & J are also corroborated by documentary evidence. Exhibit C is a picture of the fatally wounded Olajide Kassim and Exhibits B1-B6 are hospital receipts for medical treatment given to Olajide Kassim and the 2nd accused. The 2nd accused himself had testified in Court that they were both taken to the hospital for treatment by the police. I find that there are facts outside the confessions to show that they are true; and the confessions are corroborated. I also find that the accused persons being relations of the complainant, who had knowledge that he had a large sum of money in his home, had the opportunity to commit the crime. The 1st Accused in Exhibit J confessed that the

complainant’s brother, Sunday Debue had informed him that the complainant being the treasurer of their association was in possession of the contribution of N1 Million. I find that there was a reason why the complainant was a target for robbery; there was an informant (Sunday Debue) inside the Complainant’s house; and there were willing accomplices for the robbery. These facts make the confessions possible. I am also of the considered view that the confessions are consistent with other facts which have been proved.”

The Court went on at page 91 of the record to hold as follows:
“I have no doubt in my mind that the confessions in Exhibits F, K, G & J were volunteered by the accused persons. Any attempt to retract from them is an afterthought. I am convinced that the 2nd accused persons were part of the robbers that robbed complainant at Asaidu village on 06/11/2012. I find as a fact that the prosecution has established the 3rd ingredient of the offence of armed robbery beyond reasonable doubt. I hold that the prosecution has proved the 3 essential ingredients of the offence of armed robbery charged against the accused persons in Count II of the

Information.

The statement of the Appellant, Exhibit G was admitted in evidence on the 11th of July, 2016 without any objection from the Appellants Counsel. See page 49 of the record. Furthermore, the extra judicial statements made by the Appellant at the State Criminal Investigation Department (SCID), Eleweran were on the 24th of November, 2016 admitted in evidence as Exhibits J and K without any objection from the Counsel who represented the Appellant. See page 52 of the record.

object to the admissibility of a Confessional Statement at the point of tendering cannot be heard to later challenge its voluntariness. See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 345 PARAGRAPH H A; SUNDAY VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A F; RABE VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A F; andOSUAGWU VS. STATE (2013) 5 NWLR (PT. 1347) 360.
The extra judicial statements of the Appellant, Exhibits G, J and K having been admitted in evidence without any objection to their admissibility constitute conclusive evidence that they were made voluntarily and I so hold.

The Appellant at his trial retracted the contents of his statements Exhibit G and J. His Counsel submitted before us that the trial Court should not have relied on those statements to convict him. The law is settled that the fact that an accused person retracted his extra judicial statement at his trial does not make it unreliable. Once the statement is admitted in evidence, the task before the trial Court is to determine the weight to be attached to it. The

Court shall evaluate the confession contained in the extra judicial statement, the oral evidence of the accused and other evidence adduced at the trial and thereafter come to a decision whether or not it was the accused person that committed the crime. See ADISA VS. THE STATE (2019) 3 NWLR (PT. 1660) PAGE 488 AT 497 498 PARAGRAPHS G B; DADA VS. THE STATE (2019) 3 NWLR (PT. 1659) 305 AT 327 PARAGRAPHS C F and AKPA VS. THE STATE (2007) 2 NWLR (PT. 1019) PAGE 500 AT 529 PARAGRAPHS F H.
The Supreme Court inMUSA VS. THE STATE (2017) 5 NWLR (PT. 1557) PAGE 43 AT 64 65 PARAGRAPHS F A held as follows:
The Courts have accepted that a person can be convicted solely on his confession if made freely and voluntarily and seen as direct, positive and properly proved. As a safeguard, the Court is enjoined before acting or relying upon the said Confessional Statement to follow certain guidelines which are as follows:
(i) Whether there is anything outside the confession which shows that it may be true.
(ii) Whether the Confessional Statement is in fact corroborated.
(iii) Whether the relevant

statement of fact made in it are most likely true as far as they can be tested.
(iv) Whether the accused had opportunity of committing the offence;
(v) Whether the confession is possible and
(vi) Whether the alleged confession is consistent with other facts that have been ascertained and established.
See UBIERHO VS. STATE (2005) 5 NWLR (PT. 919) 644 AT 655.

On whether there is any evidence outside the confession which shows that it may be true, it is my view that the statement of the victim, Exhibit D1, evidence of PW1, PW2 and PW3 fits that purpose. PW1 was one of the vigilante men that responded to the call of the complainant. His evidence is that the complainant informed him and others that the armed robbers who attacked him and stole his box of money fled into a bushy cassava farm. He stated that himself and others went into the cassava farm in search of the armed robbers. There was a shoot-out between them and the armed robbers. Two of the armed robbers were later apprehended in the bush. His further testimony is that the Appellant was one of those apprehended. The Appellant in his statement contained at pages 29 30

and 33 34 stated as follows:
. . . . baba Ibeji collected a dane gun from inside the house and ordered everybody to lie down facing the ground so the men. . . . went straight to the place . . . . money to carry it because they have explained to us where it was kept. But in the process of him going to carry the money the owner raised alarm and we all started running into the bush. I did not know where baba Ibeji ran into after the incident. They searched the bush and saw us hiding there and the vigilante men told me to hands up and they started beating me.

The Appellant in his statement said after the robbery he hid in the bush where himself and one other person were apprehended by the vigilante men. The evidence of PW1 in my view constitutes independent evidence outside Exhibits G and J that the confession contained therein is true. The statement of fact with respect to the use of a dane gun by baba Ibeji is very likely. The confession contained in Exhibits G and J is thus possible. The statements of facts therein are most likely true and also substantially consistent with other facts that have been ascertained and established.

Let me pause here to state that the Appellant who retracted his extra judicial statements had a duty to explain as part of his defence the reason for the inconsistency in his extra judicial statement and oral testimony. The explanation must be sufficient to rebut the allegation made against him by the prosecution. The explanation should come from him without being prompted by the prosecution. See ILIYASU VS. THE STATE (2015) 11 NWLR (PT. 1469) 26 AT 81 PARAGRAPHS A C and ONWUMERE VS. THE STATE (1991) 4 NWLR (PT. 186) 428 AT 440 PARAGRAPHS F G.

The Appellant who denied the offences for which he was charged gave evidence different from what was contained in Exhibits G and J. He however did not give any explanation as to why his oral testimony differs from that contained in his extra judicial statements (Exhibits G and J). He cannot be said to have successfully retracted or resiled from Exhibits G and J. I cannot therefore disturb the findings of the learned trial judge contained at page 89 of the record to wit:
I find that there are facts outside the confessions to show that they are true; and the confession are

corroborated. I also find that the accused persons being relations of the complainant who had knowledge that he had a large sum of money in his home had the opportunity of committing the crime.

Furthermore I also find no reason to disturb the findings made by the learned trial judge at page 91 of the record that the attempt made to retract the extra judicial statement made by the Appellant is an afterthought.

Still on the Confessional Statements made by the Appellant, his Counsel while urging us to hold that the trial judge should not have relied on them to convict him submitted that the failure to take the Appellant before a superior officer to confirm the contents of Exhibit G was fatal. The need to take an accused person before a superior officer for confirmation of his Confessional Statement is borne out of the Judges Rules.
The purpose of this Rule was aptly stated by the Supreme Court in the case of ISHAYA VS. THE STATE (2019) 3 NWLR (PT. 1661) 76 AT 94 PARAGRAPHS B C when Augie JSC held as follows:
The position of the law in Nigeria as laid down by this Court on non-compliance with the Judges Rules

is that they are not rules of law but rules of administrative practice made for more efficient and effective administration of justice, and they should not be used to defeat justice. See OJEGELE VS. STATE (1988) 1 NWLR (PT. 71) 414 SC. As the Appellant conceded, the rule in question is not a rule of law but a rule of practice. It is trite that where the rule is not followed, a Confessional Statement must not be necessarily viewed with suspicion, as the sole purpose of the Judges Rules is to ensure that confessions are voluntary.
The Statements of the Appellant Exhibits G and J were admitted in evidence without any objection to their voluntariness. I have no hesitation in concluding that they were voluntarily made and properly admitted in evidence. Having not challenged the voluntariness or otherwise of the statements it is too late in the day for the Appellant to complain about the failure to take him before a superior police officer for the endorsement of his statement. The voluntariness of the statement has been established. Arguments of Counsel in this regard is therefore of no moment.

From the evidence on record, I find the first

ingredient of the offence of armed robbery proved. The evidence establishes a robbery at Asaidu village. The evidence of all prosecution witnesses and the statement of the Appellant points to the clear fact that indeed there was a robbery. There is also evidence that the robbery was an armed robbery. The findings of the lower Court at pages 82, 83 and 84 of the record are very relevant. The Appellant in his statement which was corroborated by PW1 confessed that he participated in the robbery. The lower Court found the three ingredients of the offence of armed robbery proved and proceeded to convict the Appellant. The finding of the Court is supported by evidence on record and I have no reason to disturb same.

With respect to the offence of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Fire Arms (Special Provisions) Act Cap Rule 11 Laws of the Federation of Nigeria 2004 charged in count 1, the lower Court at page 91 of the record held thus:
I find in this instance that conspiracy can be inferred from Exhibits D1, F, G, H, J and K and the evidence of PW1 PW3. I hold that the prosecution has proved beyond

reasonable doubt that the 2 accused persons conspired with Olajide Kassim who is now late and Sunday Debue who is now at large to commit the offence of armed robbery on 06/11/2012.

The Appellant in his statement, Exhibit G confessed that the complainants brother, Sunday Debue (a.k.a. Yellow) informed him that his brother (the complainant) had a sum of One Million Naira in his house and invited him to join others to rob him. His statements contain detail direct evidence of how the conspiracy was hatched. He confessed that himself and others went to the house of the complainant to rob him based on the information given them by his brother. There is evidence of mutual agreement between the Appellant and others to carry out an unlawful act to wit: to rob the complainant. I find no reason to disturb the findings of the lower Court that the prosecution proved the offence of conspiracy in count 1 of the charge against the Appellant beyond reasonable doubt. The finding is supported by evidence on record.

From the totality of the evidence on record, I am of the view that the prosecution proved the two counts of the charge against the Appellant

beyond reasonable doubt. It is trite that it is the duty of the prosecution to prove the case against an accused person beyond reasonable doubt. That is the only way an accused person can be justifiably convicted of an offence. Proof beyond reasonable doubt is not however proof beyond any shadow of doubt. The Supreme Court in the very recent decision of OFORDIKE VS. THE STATE (2019) 5 NWLR (PT. 1666) 395 AT 413 PARAGRAPHS F H held thus:
What does proof beyond reasonable doubt mean? It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt.

In conclusion I find no merit in this appeal and it is hereby dismissed. I affirm the conviction and sentence passed by the trial judge in his judgment delivered on 28th February, 2017 in SUIT NO: AB/4R/2015.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Folasade Ayodeji Ojo, JCA gave me the privilege of reading in advance the draft of the judgment just delivered.

My learned brother has admirably and exhaustively

resolved all the issues in this appeal, and came to the conclusion that the appeal has no merit. I adopt the reasons for the judgment as mine, and do agree that this appeal is lacking in merit. It is accordingly dismissed.

NONYEREM OKORONKWO, J.C.A.: In this appeal, Exhibits G and J are Confessional Statements of the Appellant which the trial Court relied on in reaching a decision of guilt. Like every other argument which requires support to buttress a conclusion, it is also desirable to find some support outside a confession to buttress it. However, it is only desirable and not a sine qua non. Where it is not found, the confession, if voluntary is sufficient, without more, to sustain a verdict.

In the lead judgment of my lord Folasade Ayodeji Ojo, JCA, a similar reasoning was adopted in reviewing the trial Court’s assessment and treatment of the confessions in the case. I agree with the lead judgment.

Appearances:

Akinsumbo Akande, Esq.For Appellant(s)

Bamidele A. Adebayo, Esq. (Administrator General Public Trustee, Ogun State)For Respondent(s)

Appearances

Akinsumbo Akande, Esq.For Appellant

AND

Bamidele A. Adebayo, Esq. (Administrator General Public Trustee, Ogun State)For Respondent