GARBA v. STATE & ORS (2022)

GARBA v. STATE & ORS

(2022)LCN/16721(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/YL/108C/21

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

UMARU GARBA APPELANT(S)

And

1. THE STATE 2. MOHAMMED LAWAL 3. BABANGIDA GARBA RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

Now in criminal trials the burden of establishing the guilt of an accused person is always on the prosecution and same must be discharged beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would be regrettable indeed for an innocent man to be wrongly punished for a crime he did not commit.
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS State (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC). PER TUKUR, J.C.A.

INGREDIENTS TO ESTABLISH THE CRIMINAL OFFENCE OF ARMED ROBBERY

In cases of robbery just like other crimes, it has been firmly established by a long line of authorities that in order to secure conviction every single element or ingredient of the offence must be proved by the Prosecution beyond reasonable doubt.
In order to glean the elements of the offence of robbery with which the Appellant herein was charged, recourse must be had to the law under which he was charged, that is Section 296(2) of the Penal Code, from which it can be gleaned that the elements as rightly delineated by Counsel are:
i. There was a robbery; and
ii. The Accused Person participated in the robbery.
Section 292(c) the punishment section, introduces the third ingredient, that is, the Robbers were armed while committing the robbery.
The Supreme Court in the case of OPEYEMI v. STATE (2019) LPELR-48764(SC) (P. 25, Paras. C-F) Per KEKERE-EKUN, J.S.C., listed the ingredients of armed robbery based on a similar provision thus:
“The essential elements of the offence of armed robbery, which must be proved beyond reasonable doubt are: (a) That there was robbery or series of robberies; (b) That each robbery was an armed robbery; and (c) That the appellant was one of those who participated in the armed robbery. See: Bozin vs The State (1985) NWLR (Pt. 8) 465, Suberu vs The State NWLR (Pt.1197) 586: Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561; Okoh vs The State (2014) 8 NWLR (Pt. 1410) 502.”
See: ETINOSA v. STATE (2019) LPELR-48325(CA); OSAGIE v. STATE (2019) LPELR-47827(CA); and OGUDO v. THE STATE(2011) LPELR-860(SC). PER TUKUR, J.C.A.

WHETHER OR NOT THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON CAN SUCCESSFULLY GROUND CONVICTION ON ITS OWN

It is trite principle of law that the confessional statement of an accused person is a veritable means of establishing the fact that he committed an offence and can successfully ground conviction on its own.
The Supreme Court in the case of AKIBU v. STATE (2019) LPELR-47630(SC), per ABBA AJI, J.S.C. (Pp. 25-28, Paras. B-B), reiterated the above principle thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. Confession has also been held to be a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Per ARIWOOLA, J.S.C in ADEBAYO V. STATE (2014) LPELR-22988(SC). A person should not under whatsoever circumstance confess and admit what he is not guilty of except when it comes under the exceptions where a confession can be considered involuntarily obtained, otherwise, a crime confessed is a crime committed and ought to be convicted for because it may relieve the prosecution the duty and burden of proof beyond reasonable doubt. Per MOHAMMED, J.S.C in ABASI V. STATE (1992) LPELR-20(SC) clearly stated that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt but for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true.
See: SANNI v. THE STATE (2019) LPELR-48418(CA); and JIMOH v. STATE (2014) LPELR-22464(SC).
A careful examination of the confessional statement of the Appellant, which was rightly considered as voluntarily given by the lower Court, reveals that same is consistent with other facts established by the Prosecution at trial and that the Appellant was in a position to participate in the robbery as confessed, thus the lower Court rightly in my view convicted him on the basis of the confessional statement. See: NALADO v. STATE (2019) LPELR-47626(SC). The fact that the Appellant said something different at trial is immaterial and even a denial of ever making the confession would not render the confession unreliable. PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in CASE NO: TRSJ/40C/2013 delivered on 19th June, 2018 by Honourable Justice Josephine Y. Tuktur C.J. (as she then was) wherein the Court convicted the Appellant for the offences of criminal conspiracy and robbery contrary to Sections 97(1) and 296 (2) and punishable under Section 296(2) of the Penal Code.

The material facts of the case leading to this appeal is that the 1st Respondent upon complaint and investigation by the Police, acting on the belief that the Appellant was part of a group of three who had robbed one Murtala Ahmed and Alhaji Yakubu on 23rd January, 2013, brought a two count charge before the lower Court, charging the Appellant thus:

Count One Statement of Offence
Criminal conspiracy under Section 97(1) of the Penal Code.
Particulars of offence
That you Mohammed Lawal, Babangida Garba and Umar Garba on or about the 23rd day of January, 2013 at about 2030hrs along Mayo-Kam Garin Kopa road in Bali LGA of Taraba State within the Jalingo Judicial Division agreed to do an illegal act, to wit, armed yourselves with cutlasses and sticks, attacked and robbed one Alhaji Yakubu Garba of Nassarawa Ward Jalingo of the sum of N1,600.00, one Gionee handset (valued N10,000.00) and unregistered Bajaj Motorcycle red in colour value (N114,000.00) and same act was done in furtherance of the agreement.
Count Two Statement of Offence
Robbery contrary to Section 296(2) and punishable under Section 298 (a) of the Penal Code.
Particulars of offence
That you Mohammed Lawal, Babangida Garba and Umar Garba on or about the 23rd day of January, 2013 at about 2030hrs along Mayo-Kam Garin Kopa road in Bali LGA of Taraba State within the Jalingo Division committed robbery to wit, whilst armed with cutlasses, sticks and torch light, you attacked one Alhaji Yakubu Garba and robbed him of the sum of N1,600.00, one Gionee handset (valued N10,000.00) and unregistered Bajaj Motorcycle red in colour value (N114,000.00) One Hundred and Fourteen Thousand Naira Only.

The Appellant was duly arraigned before the trial Court, he pleaded not guilty to the Charge and trial commenced. Upon a full trial, the learned trial Court found that the evidence presented by the Prosecution established that the Appellant committed the offences charged beyond reasonable doubt and consequently convicted the Appellant for the offence of criminal conspiracy contrary to Section 97(1) and 292(2) of the Penal Code, punishable under Section 298 of the Penal Code.

Dissatisfied with the decision of the trial Court, the Appellant appealed the decision via a Notice of Appeal dated and filed on 24th March, 2021.

The Appellant’s Brief of Argument was filed on 4th October, 2021, but deemed as properly filed on 29th October, 2021. Appellant’s Reply Brief of Argument was filed on 19th November, 2021.

Appellant’s counsel formulated three issues for determination to wit:
1. Whether from the evidence before the trial Court the Prosecution has proved the offences of criminal conspiracy and robbery against the Appellant beyond reasonable doubt (Ground 1)
2. Whether the trial Court was right in holding that PW2 gave positive evidence of identification/recognition of the Appellant as one of the armed robbers that robbed PW2. (Ground 2)
3. Whether the confessional statement of the Appellant is direct, positive and unequivocal for the trial Court to convict on it. (Grounds 3 & 4)

The 1st Respondent’s Brief of Argument is dated 1st February, 2022 but deemed properly filed and served on 3rd February, 2022

Learned counsel for the 1st Respondent adopted the first issue distilled by the Appellant as the issue for determination of the appeal. Issue one nominated by the Appellant and adopted by the 1st Respondent is for ease of reference reproduce thus:
Whether from the evidence before the trial Court the prosecution has proved the offences of criminal conspiracy and robbery against the Appellant beyond reasonable doubt.

Looking at the three issues distilled by the Appellant, I am of the view that issue one covers all the argument canvassing by the Appellant with regard to the other issues. In other words, the argument proffered in respect of issues two and three can all be accommodated under issue one. It is against that background I also adopt issue one as the sole issue for determination of the appeal.

Learned counsel for the Appellant argued that the totality of the evidence adduced by the Prosecution before the trial Court is insufficient to justify the conviction of the Appellant, as the evidence does not establish the Appellant’s guilt beyond reasonable doubt as required by law.

He relied on a host of authorities including: Sections 135(1) and 137 of the Evidence Act, 2011; Effiong v. The State (2017) 2 NWLR (Pt.1549) 205; Udo v. State (2017) 3 NWLR (Pt 1553) 411; Igabele v. State (2006) 6 NWLR (Pt.975) page 100; Ankpegher v. State (2018) LPELR-43906 (SC); Boniface Adonike v. State (2015) 11 NCC 97; Effiong v. State (2017) 2 NWLR (Pt.1549) 205; and Babatunde v. State (2014) 2 NWLR (Pt.1391) page 341.

Learned counsel for the Appellant further argued that contrary to the finding of the lower Court, the testimony of the PW2 is not credible enough to convict the Appellant, as the said testimony is doubtful. Counsel predicated his assertion of the unreliability of PW2’s eye witness testimony on the fact that the robbery took place at night, with the Robbers flashing a torch light to PW2’s eyes, an act which would impair his sight; coupled with a blow to the head; and PW2 position throughout the robbery, that is prostrate on the ground after being asked to lie down by the robbers.

He referred to the case of Doripolo v. The State (2012) LPELR- 15415(A)

Learned counsel submitted that the testimony of PW2 was contradictory and ought to have been discarded by the lower Court, as the PW2 first stated in Exhibit D made before the Police, that the Robbers were two in number, but testified in Court that the Robbers were three (the three Accused Persons). He also pointed out that the PW2 has initially stated in Exhibit D that the Robbers were wielding sticks and machete, only to testify at trial under cross-examination that the Robbers were armed with a gun.

He relied on: Kayili v. Yilbuk & Ors (2015) LPELR-24323(SC); and Afam Okeke v. The State (2016) LPELR-40024(CA); Atezi v. The State (1976) 2 SC 79; Mbenu v. State (1988) 3 NWLR (Pt.84) 615; Ezemba v. Ibeneme (2004) 14 NWLR (Pt.894) 617; and Amadi v. State (1993) 11 SCNJ 68.

Counsel posited that the Appellant’s conviction was wrong and ought not to be upheld by this Court, because a key element of proof in a robbery, that is the proper identification of an Accused Person was not present at trial, hence there was no link between the Appellant and the act of robbery. Counsel argued that the circumstances required the conduct of an identification parade, as the Witness did not know the Appellant before the incident and the factors such as time of the incident were not conducive to easy identification.

He relied on:Ikemson v. State (1989) 20 NSCC (Pt11) 471 at 485; Ore-Ofe Adeshina v. State (2012) 51 NSCQR 455 at page 476; Ochiba v. State (2011) 48 NSCQR; Udeh v. State (1999) 7 NWLR (Pt 601) 1 at P.19; Ani v. State (2009) ALL FWLR (Pt.482) 1044 at 1053 paras F-G; Ikemson v. State (1989) 3 NWLR (Pt.110) 455; and Abdullahi v. State (2008) 17 NWLR (Pt.115) 203.

Learned counsel submitted that the Appellant’s confessional statement, that is “Exhibit A” which was retracted by the Appellant, is not direct, positive unequivocal or conclusive enough to warrant Appellant’s conviction, particularly as there was no evidence outside the confession to corroborate it.

Adamu v. State (2019) LPELR-46902 (SC) pp21-22, paras E-C; Adeyemi v. State (2015) 11 NCC 376; Dibie v. State (2007) 9 NWLR (Pt1038) page 30; Idowu v. The State (2000) 7 SC (Pt.11) page 50; Ogudo v. State (2011) 18 NWLR (Pt1278) P.1 at pages 409-410; Chiokwe v. State (2012) 52 2 NSCQR 170; and Nwaebonyi v. State (1994) 5 NWLR (Pt.343) 138 at 157.

Learned counsel for the 1st Respondent submitted that a careful consideration of the evidence at trial showed that the confessional statement of the Appellant and his co-accused person was positive and unequivocal.

Learned counsel further submitted that the voluntariness and veracity of the contents of the confessional statement was confirmed by the Appellant before a superior police officer ASP Ebenezer Ajolo in whose presence the confessional statement was once again read and interpreted to the Appellant before he confirmed same as his statement.

Learned counsel further contended that the findings of the learned trial Judge with regard to the confessional statement was never made a subject of appeal before this Court, and in that regard this Court should not disturb the findings of the learned trial Judge who had the opportunity of seeing, listening and examining the demeanour of the witnesses.

Learned counsel further submitted that the invitation of Appellant to the lower Court hold that an identification parade ought to have been conducted by the police to properly identify the persons that robbed the complainant and that without such evidence of identification parade the evidence of Pw2 who identified the Appellant should be discountenanced is of no moments. Learned counsel for the 1st Respondent argued that in the instant case the identity of the Appellant and his co-accused persons was really not an issue in view of the confessional statement of the Appellant. Learned counsel cited the following cases: Nika Gbatse v. Opuye (2010) LPELR 4620 (CA); Suleiman v. FRN (2018) LPELR 46667; Ada v. State (2008) LPELR – 67 (SC).

Learned counsel for the 1st Respondent finally urged the Court to resolve the appeal against the Appellant and affirm the conviction and sentence of the Appellant by the lower Court upon a dismissal of the appeal.

In the reply brief, learned counsel for the Appellant urge us to discountenance the issue distilled by the 1st Respondent because the said issue was not shown to have been drawn from any of the grounds of appeal.

Learned counsel for the Appellant submitted that where a party to an appeal fails to distill issues from the grounds of Appeal, the party’s brief would be deemed incompetent. Learned counsel cited the case of Gomna v. Morris (Nig.) Ltd (2019) LPELR 46900 (CA).

Learned counsel for the Appellant further submitted that where the findings of the lower Court are not based on the evidence before it then this Court has the power to set same side.

Learned counsel called in aid the following case: Terver v. State (2015) LPELR–24787 (CA) PP 26-27; State v. Gwan Gwan (2015) LPELR–24837 (SC) PP 34–35 Paras E. Learned counsel finally urge us to allow the appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant.

RESOLUTION OF THE ISSUE
Learned counsel for the Appellant in the Appellant’s Reply brief raised the preliminary issue of the competence of the 1st Respondent’s solitary issue on the ground that it was not shown to have been drawn from any of the Grounds of Appeal and to that extent, same is incompetent and should be discountenanced by this Court.

Now that is not the correct position of the law. The failure by the 1st Respondent to indicate the ground the issue is derived from is not a fundamental defect that affects the competence of the 1st Respondent’s brief so long as the issue is properly derived from the grounds of Appeal. Indicating the specific ground from where the issue is derived from is a matter of preference, and the Court can on its own relate the issues to the grounds of appeal in order to do substantial justice between the parties. See Unity Bank Plc v. Bouari (2008) 2 SCNJ 116; Amaran v. Virgin Atlantic Airways & Ors (2018) LPELR–44786 (CA).

In the instant case, the 1st Respondent merely adopted the 1st issue distilled by the Appellant as his issue and in his formulation of the said issue which was adopted by the 1st Respondent, the Appellant in his brief of Argument tied the said issue one to ground 1 of the Notice of Grounds of Appeal. So where then is the basis for the objection to the said issue which as I just mentioned was merely adopted by the 1st Respondent from the issues distilled by the Appellant? The objection by the Appellant to the competence of 1st Respondent’s brief of argument has no merit and same is hereby discountenanced. I hold that 1st Respondent’s Brief of Argument is competent.

Now in criminal trials the burden of establishing the guilt of an accused person is always on the prosecution and same must be discharged beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would be regrettable indeed for an innocent man to be wrongly punished for a crime he did not commit.
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS State (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC).

In cases of robbery just like other crimes, it has been firmly established by a long line of authorities that in order to secure conviction every single element or ingredient of the offence must be proved by the Prosecution beyond reasonable doubt.
In order to glean the elements of the offence of robbery with which the Appellant herein was charged, recourse must be had to the law under which he was charged, that is Section 296(2) of the Penal Code, from which it can be gleaned that the elements as rightly delineated by Counsel are:
i. There was a robbery; and
ii. The Accused Person participated in the robbery.
Section 292(c) the punishment section, introduces the third ingredient, that is, the Robbers were armed while committing the robbery.
The Supreme Court in the case of OPEYEMI v. STATE (2019) LPELR-48764(SC) (P. 25, Paras. C-F) Per KEKERE-EKUN, J.S.C., listed the ingredients of armed robbery based on a similar provision thus:
“The essential elements of the offence of armed robbery, which must be proved beyond reasonable doubt are: (a) That there was robbery or series of robberies; (b) That each robbery was an armed robbery; and (c) That the appellant was one of those who participated in the armed robbery. See: Bozin vs The State (1985) NWLR (Pt. 8) 465, Suberu vs The State NWLR (Pt.1197) 586: Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561; Okoh vs The State (2014) 8 NWLR (Pt. 1410) 502.”
See: ETINOSA v. STATE (2019) LPELR-48325(CA); OSAGIE v. STATE (2019) LPELR-47827(CA); and OGUDO v. THE STATE(2011) LPELR-860(SC).

There is no contention as to whether there was a robbery or that the Robbers were armed, and though a slight confusion as to the exact nature of arms wielded by the Robbers seem to exist, an examination of the case at trial reveals that the fact that armed robbery occurred was indeed established beyond reasonable doubt, mainly by the oral testimony of the victim of the robbery incident.

It was also firmly established that the Appellant participated in the robbery, first through the eye witness testimony of the PW2 one of the victims of the Robbery, which is enough to convict the Appellant in line with the settled principle of law to the effect that an Accused Person may be convicted by the oral testimony of even one witness only, so long as the testimony is cogent.
See: CHIDOZIE v. C.O.P (2018) LPELR-43602(SC) (Pp. 24-25, Paras. A-B) Per SANUSI, J.S.C.; ADEBOWALE v. STATE (2018) LPELR-46766(CA); STATE v. SULEIMAN & ORS (2018) LPELR-45636(CA); and GIKI v. STATE (2018) LPELR-43604(SC).

In addition to the eye witness testimony of PW2, another crucial piece of evidence which adds to the tower of proof standing against the Appellant, is the Appellant’s own confession, as recorded in Exhibit B.

It is trite principle of law that the confessional statement of an accused person is a veritable means of establishing the fact that he committed an offence and can successfully ground conviction on its own.
The Supreme Court in the case of AKIBU v. STATE (2019) LPELR-47630(SC), per ABBA AJI, J.S.C. (Pp. 25-28, Paras. B-B), reiterated the above principle thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. Confession has also been held to be a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Per ARIWOOLA, J.S.C in ADEBAYO V. STATE (2014) LPELR-22988(SC). A person should not under whatsoever circumstance confess and admit what he is not guilty of except when it comes under the exceptions where a confession can be considered involuntarily obtained, otherwise, a crime confessed is a crime committed and ought to be convicted for because it may relieve the prosecution the duty and burden of proof beyond reasonable doubt. Per MOHAMMED, J.S.C in ABASI V. STATE (1992) LPELR-20(SC) clearly stated that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt but for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true.
See: SANNI v. THE STATE (2019) LPELR-48418(CA); and JIMOH v. STATE (2014) LPELR-22464(SC).
A careful examination of the confessional statement of the Appellant, which was rightly considered as voluntarily given by the lower Court, reveals that same is consistent with other facts established by the Prosecution at trial and that the Appellant was in a position to participate in the robbery as confessed, thus the lower Court rightly in my view convicted him on the basis of the confessional statement. See: NALADO v. STATE (2019) LPELR-47626(SC). The fact that the Appellant said something different at trial is immaterial and even a denial of ever making the confession would not render the confession unreliable.

Once the statements is admitted in evidence, the task before the trial Court is to determine the weight to be attached to it. The Court is to evaluate the confessional statement vis a vis the oral evidence of the accused person and other evidence adduce at the trial and thereafter come to a decision whether or not it was the accused that committed the crime adverting to the judgment of the trial Court.

I am satisfied with the evaluation of the extra-judicial statement and the other evidence made by the lower Court before arriving at the conclusion that the Appellant participated in the commission of the crime subject of the trial before it. I agree with the findings of the learned trial Judge that Exhibit ‘C’ was made by the Appellant voluntarily wherein he confessed to the commission of the crime.

It is to be noted that in Exhibit C1 the Attestation form of admission of confessional statement of an accused person made to the police which was admitted in evidence without objection, the Appellant admitted to the voluntary making of Exhibit ‘C’ his confessional statement. In the Attestation form, the Appellant in his answer to the questions which seeks to establish whether the statement alleged to be made by him was indeed his, and whether he made same voluntarily and whether it represented what he said to the police to which he replied ‘Yes’ to all the questions. In point of fact the Appellant through Exhibit C1 further in my view strengthens the case of the prosecution that the Appellant’s participation in the commission of the crime with which he was charged. Exhibit C1 which contained this damning admission by the Appellant and which admission confirmed the making of the extra-judicial statement to the police wherein the Appellant confessed to the commission of the crime was as I mentioned earlier admitted in evidence without any objection from the Appellant and neither it nor the witness through whom it was tendered subjected to any cross-examination by learned counsel for the Appellant.

In that regard, I hold that the learned trial Judge was right in relying on same and the other pieces of evidence in arriving at his conclusion that the Appellant participated in the commission of the offence.

Learned counsel for the Appellant had also made the point that the evidence of the Pw2 was riddled with contradictions and that the learned trial Judge was wrong to rely on same. Adverting to the evidence of the Pw2. I do not agree with learned counsel for the Appellant on the point. While it is correct that there were some discrepancies in his extra-judicial statement to the police admitted as Exhibit ‘D’ and his evidence in Court as to the nature of the weapons the Appellant and the other co-accused were carrying on the fateful night, these are in my view mere discrepancies which do not in any way dislodge the very graphic testimony of the Pw2 on the events of the night in question. The discrepancies are not material contradictions that affect the credibility of the testimony of the Pw2. See Eduenoh v. State (2019) LPELR 48345 (CA); Akpa v. State (2007) 2 NWLR (Pt. 1019) 500 at 528 Paras D–G.

In summation the sole issue nominated for determination is resolved against the Appellant and in consequence, the appeal is dismissed for lacking in merit. The conviction and sentence of the Appellant by the lower Court in its judgment delivered on 19th June, 2018 in Case No. TRSJ/40C/2013 is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A.: I have read before now, a draft copy of the leading judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I am in complete agreement with his reasoning and conclusions reached therein which I adopt as mine.

I am convinced that the Respondents successfully proved their case beyond reasonable doubt therefore, I cannot fault the findings of the trial Court. The sole issue formulated for the determination of the appeal is resolved against the Appellant. The appeal is lacking in merit, and it is accordingly dismissed.

I abide by the order made, the conviction and sentence of the Appellant by the lower Court in its judgment of the High Court of Taraba State in Case No. TRSJ/40C/2013 delivered on 19th day of June, 2018 is hereby affirmed.

MUHAMMED LAWAL ABUBAKAR, J.C.A.: I read in draft, the lead judgment delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I entirely agree with his reasoning and conclusion. I have nothing to add. The decision of the lower Court is affirmed and the appeal is dismissed for lack of merit.