IGWE v. STATE (2021)

IGWE v. STATE

(2021)LCN/15101(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/IB/312c/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

PHILIP IGWE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS OR METHODS OF PROVING THE GUILT OF AN ACCUSED PERSON

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely: 1. By reliance on a confessional statement of an accused person voluntarily made. 2. By circumstantial evidence. 3. By evidence of eyewitnesses. See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2001) 8 NWLR (PT 1234) 209 at 236, ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16 and OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 11, which also seemed to have added a fourth way or method, id est, “admission by conduct of the accused person/appellant.” (per Odili, JSC). PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The law is well settled on the conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery. They are: 1. That there was a robbery. 2. That the robbery was an armed robbery. 3. That the accused person was one of the armed robbers. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DUTY OF THE COURT WHERE AN ACCUSED MAKES AN OUTRIGHT DENIAL OF THE STATEMENT SOUGHT TO BE TENDERD

In IBEME vs. THE STATE (2013) LPELR (20138) 1 at 5, Chukwuma Eneh, J.S.C. stated: “…where the challenge of voluntariness of an accused confessional statement vis-à-vis his testimony in a trial within trial is hinged on an outright denial of the statement sought to be tendered by the prosecution as here that it amounts to a retraction of the statement and that such a statement is otherwise admissible and reliable without the necessity of conducting a trial within trial (i.e. a mini trial) as its voluntariness is not in issue.” Furthermore, in LASISI vs. THE STATE (2013) LPELR (20183) 1 at 28-29, Onnoghen, J.S.C. (later CJN) stated: “…where an accused person denies making the statement sought to be tendered, the issue of trial within trial is not relevant as it is settled law that the said statement is admissible in evidence, subject however to the weight to be attached thereto.” See also ODEH vs. FRN (2008) ALL FWLR (PT 424) 1590 at 1618. What is more, even though the lower Court ought to have aborted the trial within trial at the stage when it became obvious that the Appellant was denying making the statement, not that it was not made voluntarily; the lower Court at the end of the trial within trial admitted the statement in evidence showing that the prosecution established that the statement was made voluntarily. Once a confessional statement is admitted in evidence following a trial within trial, it is difficult for an appellate Court to intervene on an appeal against its admissibility in evidence as the evaluation of the evidence adduced at the trial within trial is based on the credibility of witnesses, which is the primary duty of the Court of trial where the judge has the unparalleled advantage of having, seen the witnesses testify and watching their demeanour. See LASISI vs. THE STATE (supra) and MUSA vs. THE STATE (2019) 4 NWLR (PT 1662) 335 at 345. Undoubtedly, there is no basis on which to fault the lower Court admitting the confessional statements of the Appellant in evidence. Doubtless, it is trite law that a confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. A confessional statement in criminal law is a statement which admits of the crime. The Appellant retracted and resiled from the confessional statements at the trial. In such circumstances, the law is that a Court cannot act on the confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189, ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20 and OSENI vs. THE STATE (Supra) at 387 to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts stated in the confession are true as far as can be tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with the other facts ascertained and proved. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CIRCUMSTANCE WHERE IDENTIFICATION PARADE IS UNNECESSARY

In THE STATE vs. OLASHEHU SALAWU (2011) LPELR (8252) 1 at 49-50, Adekeye, J.S.C. stated inter alia thus: “Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. …Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused a parade is not necessary. Recognition of an accused may be more reliable than identification.” See also ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190 at 225-226, OSUAGWU vs. THE STATE (2013) 1 SCM 170 at 182 and ADEBAYO vs. THE STATE (2014) ALL FWLR (PT. 743) 1994. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

MEANING AND NATURE OF THE OFFENCE OF CONSPIRACY

… conspiracy as an offence is the agreement by two or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA vs. THE STATE (1972) 8-9 SC 108 or (1972) LPELR (1356) 1 at 23-24, Fatayi-Williams, J.S.C. (as he then was) stated as follows: “Conspiracy as an offence is nowhere defined in the Criminal Code…It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.” See alsoIBRAHIM vs. THE STATE (1994) LPELR (14350) 1 at 7-10. The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR vs. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. F.R.N. (2001) 53 WRN 20 at 54 and THE STATE vs. OSOBA (2004) 21 WRN 113. Without a doubt, it is abecedarian law that a count of the offence of conspiracy must allege that the conspiracy involves more than one person since a person cannot conspire with himself. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER A SINGLE PERSON CAN PROPERLY BE CHARGED WITH, AND BE CONVICTED FOR THE OFFENCE OF CONSPIRACY

In MOHAMMED vs. THE STATE (2010) LPELR (9019) 1 at 22-23, this Court (per Oredola, J.C.A.) held: “it can be seen… that the conspiracy must be with ‘any person’ and it is obvious that this must be expressly stated in the charge laid against the accused person, even if the co-conspirator is not known, once he is/was in existence at the time the conspiracy plan was hatched. In the instant case, the conspiracy count in the charge as laid against the Appellant is ominously silent about the person or persons, known or unknown and with whom the Appellant must have conspired. This was not so stated or stated at all in the charge reproduced above. What sort of conspiracy was that? A one man conspiracy is unknown to criminal jurisprudence. No man is an island entirely unto himself. Thus, no man conspires alone with himself as the sole conspirator. In this case, the big question is ‘agreed’ or ‘conspired’ with who? The obvious answer is ‘no one’ has been mentioned, stated or referred to in the charge as the ‘one’.” Also inOSHO vs. THE STATE (2011) LPELR (4804) 1 at 37 Garba, J.C.A. [now J.S.C.] quipped: “Let me point out that by the definition of the offence of conspiracy, it is beyond viable argument that it takes two or more persons to agree for the offence to be committed. It is therefore a restatement of the requirements…. by Ogbuagu, J.S.C. in the case of SULE vs. STATE (supra) when he said:- ‘It takes two to conspire’. Since it takes two or more people to conspire, it follows therefore that a single person is in law incapable of agreeing alone and so cannot properly be charged with, let alone be convicted for the offence of conspiracy.” See also FAYEMI vs. A-G WESTERN NIGERIA (1966) LPELR (25317) 1 at 3, SULE vs. THE STATE (2009) 17 NWLR (PT 1169) 33 at 63 and FRN vs. EGBEFOH (2019) LPELR (47872) 1 at 26-27. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER THE FAILURE OF THE OFFENCE OF CONSPIRACY WILL AFFECT THE SUBSTANTIVE OFFENCE

In ADAMU vs. THE STATE (2017) LPELR (41436) 1 at 46, the apex Court held: “The appellant’s stand is that the two counts and the entire proceedings be declared a nullity. This would be taking technicality too far particularly where the offence of conspiracy is a separate distinct and independent offence from the substantive. Since either of the two counts can fall or succeed standing alone, only count 1 of conspiracy which being visited with the fundamental vice would fail without dragging down count 2 which had no non-compliance defect.” I kowtow. See also IBOJI vs. THE STATE (2016) LPELR (40009) 1 at 14, BALOGUN vs. A-G OGUN STATE (2002) 2 SC (Reprint) 89 at 96 or (2002) FWLR (PT 100) 1287 at 1306, AGUGUA vs. THE STATE (2017) LPELR (42021) 1 at 19 and ADAMU vs. THE STATE (supra) at 11-13. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH THE TRIAL COURT’S FINDINGS OF FACT

In MUSA VS STATE (2019) 4 NWLR (PT. 1663)335 AT 345-346 PARAGRAPHS H-A, the Supreme Court held, per M.D. Muhammad, J.S.C. as follows: “Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court that saw and assessed the credibility of the witnesses. The appellate Court that does not enjoy this much advantage cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse. A Court’s findings are perverse where they are speculative, not being based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious. Because of the miscarriage of justice they occasion, perverse findings do not sustain a judgment on appeal even if same had been upheld by the Court of Appeal. See Jolayemi & Ors. v. Alaoye & Anor. (2004) 12 and Akinlagun & ors. v. Oshoboja & Anor. (2006) LPELR-348; (2006) 12.” PER FOLASADE AYODEJI OJO, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The facts on which the Respondent founded this matter disclose that on 11th September, 2013, the PW1, the Complainant in the matter went to Ecobank Limited, Idi Ape Branch, Ibadan, where he withdrew the sum of N1,000,000.00. After he left the bank, and with the money in his car, some robbers operating on two motorcycles accosted him asking for the money. They shot at him and he threw the bag containing the money out of the window of the car. The money scattered on the road, while some fell back inside the car. The robbers started gathering the money and the Appellant who was shot in the leg in the course of the robbery was apprehended by a military officer who came to assist the PW1 after the robbery incident.

The PW1 was rushed to the hospital on the account of the gunshot injuries he sustained. Shortly after he had arrived at the hospital, the Police brought the Appellant who was apprehended at the scene of crime to the hospital and the PW1 identified the Appellant as one of the robbers because of the T-shirt the Appellant was wearing. The Appellant was thereafter arraigned before the

High Court of Oyo State in CHARGE NO. I/44C/2015: THE STATE vs. PHILIP IGWE on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6 (b) and punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.

The matter went to trial. The prosecution called three witnesses and tendered documentary and real evidence. The confessional statement volunteered by the Appellant was admitted in evidence after the conduct of a voir dire. The Appellant testified in his defence and did not call any other witness. At the end of the trial, the lower Court, Coram Judice: Esan, J., in its judgment delivered on 24th March, 2017, convicted the Appellant as charged and sentenced him to death. The scarified judgment of the lower Court is at pages 57-70 of the Records of Appeal.

The Appellant, dissatisfied with the decision of the lower Court, appealed against the same by Notice of Appeal filed on 16th June, 2017. The original Notice of Appeal is at pages 72-77 of the Records of Appeal. The extant notice of appeal is the Amended Notice of Appeal filed on 14th

November, 2017 but deemed as properly filed on 23rd June, 2020. In prosecution of the appeal, the Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. The briefs on which the appeal was argued are:
1. Appellant’s Brief filed on 14th November, 2017.
2. Respondent’s Brief filed on 23rd October, 2019.
3. Appellant’s Reply Brief filed on 19th June, 2020.
All the briefs were deemed as properly filed on 3rd March, 2021.

Let me at this outset state that the purpose of a Reply Brief as provided for in Order 19 Rule 5 (1) of the Court of Appeal Rules, 2016 is to reply to new points arising from the Respondent’s Brief. It is not proper to use a reply brief to extend the scope of argument and submission in the Appellant’s brief, in order, so to say, have a second bite at the cherry. See YANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and

ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The reiteration of a submission already made in the Appellant’s brief in the Reply Brief, will not improve the quality of the submission or make it acceptable, if it were ordinarily unacceptable. See FSB INTERNATIONAL BANK vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13. In the circumstances, bearing in mind the purpose of a Reply Brief, I will, in the course of this judgment, only make reference to the submissions in the Reply Brief where it is in the real sense a response to a new point or argument in the Respondent’s Brief. See VODACOM BUSINESS NIG LTD vs. FIRS (2019) LPELR (47865) 1 at 2-3 and REGD TRUSTEES OF AUTO SPARE PARTS AND MACHINERY DEALERS ASSOCIATION vs. JOHN (2020) LPELR (49541) 1.

The Appellant formulated three issues for determination, as follows:
1. Whether the learned trial judge was right in holding that the prosecution proved its case beyond reasonable doubt (GROUND 2).
2. Whether the learned trial judge was right in relying on the Appellant’s Confessional

Statement to convict him (Grounds 1 & 3)
3. Whether the learned trial judge has the jurisdiction to entertain Count 1 (GROUND 4)

The Respondent equally distilled three issues for determination, namely:
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT THE APPELLANT ACTUALLY PARTICIPATED IN THE ROBBERY ATTACK. THIS ISSUE ARISES FROM GROUNDS 2 & 3 OF THE GROUNDS OF APPEAL
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE RELIED ON THE CONFESSIONAL STATEMENT OF THE APPELLANT IN CONVICTING HIM. THIS ISSUE ARISES FROM GROUNDS 1 & 3 OF THE GROUNDS OF APPEAL.
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE CONVICTED THE APPELLANT ON COUNT 1 OF THE CHARGE BEFORE THE LOWER COURT. THIS ISSUE ARISES FROM GROUND 4 OF THE GROUNDS OF APPEAL.

At the core of the disceptation in criminal matters is the inquisition as to whether the offence(s) charged was proved beyond reasonable doubt. Accordingly, irrespective of the way the issues for determination are framed, the bottom line remains that it has to be ascertained whether the evidence adduced established the crime charged beyond reasonable. In the light of

this, I will review the submissions of learned counsel on their issues as distilled and then resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that for a Court to convict, the prosecution has to prove the offence charged beyond reasonable doubt, which cannot be achieved if any piece of evidence adduced is discredited or disparaged vide SHOFOLAHAN vs. THE STATE (2013) 17 NWLR (PT 1383) 281 at 310-311. Proof beyond reasonable doubt was submitted to mean proving every ingredient of the offence to the satisfaction of the Court. The cases of AJAYI vs. THE STATE (2013) 9 NWLR (PT 1360) 589 at 616, THE STATE vs. JOHN (2013) 12 NWLR (PT 1368) 337 at 36 [sic] and EYO vs. THE STATE (2013) 1 NWLR (PT 1335) 324 at 340 were referred to.

The elements of the offence of armed robbery were redacted and it was submitted that the elements were not proved beyond reasonable doubt as there was no evidence showing that the Appellant participated in the robbery, and that where there is any doubt as to the identification of the suspect by the victim, an identification parade should be conducted. The cases of BOZIN vs. THE STATE

(1985) 2 NWLR (PT 8) 465, AIGBADION vs. THE STATE (2000) 7 NWLR (PT 666) 686 at 704, ALUFOHAI vs. THE STATE (2015) 3 NWLR (PT 1445) 172 at 192, OKANLAWON vs. THE STATE (2015) 17 NWLR (PT 1489) 445 among other cases were relied upon.

It was opined that the purported identification of the Appellant by the PW1 on the basis of a T-shirt he was said to have worn during the robbery operation, did not meet the criteria of a proper identification which ought to involve the description and features of the accused person noted by the victim and which marks him out from other persons. It was stated that where the quality of the identification evidence is poor, the Court should not convict. The cases of IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 445 at 472, CHUKWU vs. THE STATE (1996) 7 NWLR (PT 463) 686 and AJIBADE vs. THE STATE (1987) 1 NWLR (PT 48) 205 were cited in support.

It was contended that the PW2 and PW3 were not at the scene of the crime and their testimony as to how the crime took place and the identity of the perpetrators was hearsay and inadmissible and cannot be taken as proof that the Appellant was one of the robbers. The case of

ZUBAIRU vs. THE STATE (2015) 16 NWLR (PT. 1486) 504 and Section 126 of the Evidence Act were called in aid. It was further stated that there were material contradictions and inconsistences in the testimony of the PW1 and his extra-judicial statement, Exhibit B, which impacted on his ability to identify the robbers. The said inconsistencies with other evidence adduced, it was maintained, was such that the evidence did not establish that the Appellant was the person identified as having been shot, demobilised and arrested at the scene of crime. It was asserted that the contradictions were material and the Court was in the circumstances duty bound to reject the entire evidence since it cannot pick and choose which of the conflicting evidence to follow vide MOGAJI vs. CADBURY (NIG) LTD (1985) 2 NWLR (PT 7) 393, KAYODE vs. YILBUK (2015) 7 NWLR (PT 1457) 26 and AHMED vs. THE STATE (1991) 7 NWLR [no part stated] 641. It was posited that material inconsistency triggers a doubt which must be resolved in favour of the accused person. The case of THE PEOPLE OF LAGOS STATE vs. UMARU (2014) 7 NWLR (PT 1407) 584 was relied upon.

It was further contended that the

confessional statement said to have been made by the Appellant is part of the prosecution case and therefore any contradiction between the said statement and the testimony of the PW1 is a contradiction in the evidence of the prosecution, which the prosecution had the duty to explain, failing which the doubt created must be resolved in favour of the Appellant. The cases of ONUBOGU vs. THE STATE (1974) 9 S. C. [no page stated], OKAGBUE vs. COP (1965) NMLR 232, R vs. LAWRENCE (1932) 11 NLR 6 and THE STATE vs. EMINE (1992) 7 NWLR (PT 256) 658 were referred to. It was conceded that the evidence disclosed that there was a robbery, that the robbery was an armed robbery, but it was asserted, that it was not established that the Appellant was the offender in order for him to be convicted.

On the count of conspiracy, it was stated that conspiracy involves the consensus ad idem of two or more persons to do an unlawful act by unlawful means vide AITUMA vs. THE STATE (2006) 10 NWLR (PT 989) 452 at 347 [sic] and YAKUBU vs. THE STATE (2012) 12 NWLR (PT 1313) 131. It was opined that apart from the confessional statement, there is no independent evidence showing that the

Appellant conspired with others to rob PW1; and that without independent evidence, a person cannot be convicted for conspiracy based on confession alone. The cases ofFAYEMI vs. A-G (1966) ALL NWLR 186 and THE STATE vs. NNAUMA (1981) 2 NCR 104 at 107 were called in aid. It was maintained that where there is no evidence to prove the elements of the substantive offence, then the charge of conspiracy to commit the substantive offence is also devoid of proof. The cases of AITUMA vs. THE STATE (supra) at 471-472 and ABIOYE vs. THE STATE (1990) 6 NWLR (PT 155) 158 at 162 were referred to.

The quiddity of the Appellant’s submission on the second issue he formulated is that he did not voluntarily or consciously sign the confessional statement or thumbprint the same and that he is therefore not responsible for it and the statement is not his. It was contended that the lower Court did not give a considered Ruling after the trial within trial but merely admitted the confessional statement in evidence without considering the facts before the Court. The lower Court, it was opined, did not arrive at a decision, whether upon the evidence before it, it found the

confessional statement to have been made voluntarily.

It was further contended that the Appellant having retracted the confessional statement, the lower Court was duty bound to evaluate the confessional statement by applying the established tests to ascertain the veracity of the confession. The cases of OGUDO vs. THE STATE (2011) LPELR 860 SC and AZABADA vs. THE STATE (2014) 12 NWLR (PT 1420) 40 at 52-53 were relied upon. It was stated that the attempt by the lower Court to find the necessary corroboration from the statement itself was of no moment, since corroboration is not mere repetition of the evidence to be corroborated. The corroboration, it was posited, had to be evidence which implicates the accused person or confirms in some material particulars that the crime was committed and that the accused person committed it. The cases of REX vs. BASKERVILLE (1916) 2 KB 658, THE STATE vs. GWANGWAN (2015) 13 NWLR (PT 1417) 600 among other cases were cited in support. The Appellant insisted that there is nothing outside the confessional statement showing that it is true or corroborating it.

It was further submitted that the failure by the prosecution

to call the military officer who was said to have assisted the PW1 after the incident, leads to the presumption that he either did not exist or that his evidence would have exculpated the Appellant if he had been called to testify vide OLUSANYA vs. OSINLEYE (2013) 7 NWLR (PT 1364) 148, AITUMA vs. THE STATE (supra) and THE STATE vs. EMINE (supra). While, it was conceded that the prosecution need not present all and every witness, it was asserted, that the testimony of the military officer was vital to resolving the issue of the identification of the Appellant as the person seen or arrested at the scene of crime, such that the failure to call him to testify was fatal. The cases of ZUBAIRU vs. THE STATE (2015) 16 NWLR (PT 1486) 504, MOGAJI vs. ODOFIN (1978) 3-4 SC [no page stated] and KOLAWOLE vs. THE STATE (2015) 8 NWLR (PT 1460) 134 were relied upon.

Arguing the third issue he crafted for determination, the Appellant submits that there must be at least two persons for there to be conspiracy since one person cannot be guilty of conspiracy. The case of FRN vs. SANI (2014) 16 NWLR (PT 1433) 229 at 331 was called in aid. It was stated that Count 1 of the

Charge simply stated that the Appellant conspired without stating that he conspired with any person; this, it was contended, was a failure to indicate a vital particular of the offence of conspiracy. It was asserted that any mistake in the particulars of the offence in a charge shall lead to a conviction being quashed on appeal. The elements or ingredients of an offence it was posited, must be explicitly stated and not left to speculation or inference as failure to set the same out will be in breach of the constitutional mandate under Section 36 (6) (a) of the 1999 Constitution. The cases of ABIDOYE vs. FRN (2014) 5 NWLR (PT 1399) 30 at 59, OKEKE vs. IGP (1965) 2 ALL NLR 81, IBRAHIM vs. THE STATE (2015) 11 NWLR (PT 1469) 164 at 87 [sic],EZEZE vs THE STATE,(2004) 14 NWLR (PT 894) 491, MADU vs THE STATE (2012) 15 NWLR (PT 1324) 405 among other cases were referred to.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent referred to the cases ofNWATURUOCHA vs. THE STATE (2011) 6 NWLR (PT 1242) 170 at 183, ADEKOYA vs. THE STATE (2012) 9 NWLR (PT 1306) 539 at 566; MARTINS vs. THE STATE (1992) 1 NWLR (PT 481) 355 at 366 among other cases on the

ingredients to be proved in a charge of armed robbery. It was submitted that Appellant conceded that it had been established that there was a robbery and that the robbery was an armed robbery, but only contended that it was not established that the Appellant was one of the robbers. It was stated that the PW1 positively identified the Appellant, who was still wearing the T-Shirt he wore when they attacked the PW1, which PW1 had mentioned in his extra-judicial statement that he may not recognize the culprits except if they are in the same dress.

It was posited that where evidence fixed an accused person at the scene of crime, his alibi is naturally and effectively demolished vide ADELE vs. THE STATE (1995) 2 NWLR (PT 377) [no page stated]. It was contended that the military officer was not available to testify, consequent upon which his extra-judicial statement was admitted in evidence as Exhibit D pursuant to Section 39 of the Evidence Act. It was maintained that the combined effect of Exhibit D and the testimony of PW1 put the Appellant at the scene of crime and that his identity was therefore no longer in doubt. It was asserted that the statement of the

Appellant, having been admitted in evidence after the trial within trial, and other evidence on record, the identity of the Appellant was clearly established and the issue of identification parade become irrelevant. The case of OSUAGWU vs. THE STATE (2012) 1 SCM 170 at 185 was relied upon. The Appellant it was further contended ought to have appealed against the Ruling in the trial within trial and that it was too late in the day for him to contend after judgment that the confessional statements were wrongly admitted in evidence at the trial within trial.

On its second issue, the Respondent submits that a confessional statement puts an end to all speculations as to whether an accused was involved in the crime or not. The cases of OKEKE vs. THE STATE (2003) 15 NWLR (PT 842) 25 at 112, ONYENYE vs. THE STATE (2012) 15 NWLR (PT 1324) 586 at 616 were called in aid, and it was opined that the Court can convict solely on the basis of the confessional statement.

The conspectus of the Respondent’s submission on its third issue is that Count 2 of the Charge had taken care of the Appellant’s complaint on the conspiracy charge in Count 1, since the

said Count 2 stated that Appellant “with others now at large” committed the offence. It was posited that the testimonial evidence and exhibits established the conspiracy charge. The cases of KAZA vs. THE STATE (2008) 5 SCM [no page stated] and ABDULAHI vs. THE STATE (2008) 5 SCM [no page stated] were cited in support. It was conclusively submitted that conspiracy is seldom proved by direct evidence, but established by circumstantial evidence and inference from proved acts. The case of OMOTOLA vs. THE STATE (2009) 3 SCM [no page stated] was referred to.

APPELLANT’S REPLY ON LAW
The Appellant doubled down on his submission that the lower Court did not deliver a Ruling in the trial within trial, but lumped the Ruling and delivered it with the main judgment and as such erred in law vide THE STATE vs. SANI (2018) LPELR-43598 (SC). It was stated that the appeal against the outcome of a trial within trial is not an interlocutory appeal and can be included in an appeal against the judgment. The case of ASIMI vs. THE STATE (2016) 12 NWLR (PT 1527) 414 at 437 was relied upon. It was further opined that a decision which amounts to wrongful

admission of evidence is part of the main trial and not an interlocutory decision. The case of ONWE vs. NWAOGBUINYA (2001) 3 NWLR (PT 700) 418 was referred to. It was conclusively submitted that Section 39 of the Evidence Act was inapplicable since the conditions for its applicability were not met and that a statement admissible under Section 39 of the Evidence Act must fall within the provisions of Sections 40-50 of the Evidence Act.

RESOLUTION
The Appellant was charged and convicted on two counts of conspiracy to commit armed robbery and armed robbery. It is settled law that the proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the substantive charge and then proceed to see how far the conspiracy count had been made out by inference from the substantive charge. See OSETOLA vs. THE STATE (2012) 17 NWLR (PT 1329) 251, JIMOH vs. THE STATE (2014) 10 NWLR (PT 1414) 105 at 135 and AGUGUA vs. THE STATE (2017) 10 NWLR (PT 1573) 254 at 274. Therefore, in resolving the issues raised in this appeal, the starting point will be to consider the findings made by the lower Court on the

substantive offence of armed robbery and from there consider whether the charge of conspiracy was properly sustained by the lower Court.

It is hornbook law that in criminal trials, the onus is on the prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1874) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no Tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to

support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the paramount question is not ordinarily whether or not the offence was committed. More often than not, the question is the identification of the person or persons alleged to be the actual perpetrators of the offence charged. See NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. This case is not an exception, as the Appellant has made a ruckus that the evidence adduced did not establish beyond reasonable doubt that he was one of the robbers.

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional statement of an

accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2001) 8 NWLR (PT 1234) 209 at 236, ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16 and OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 11, which also seemed to have added a fourth way or method, id est, “admission by conduct of the accused person/appellant.” (per Odili, JSC).

The Respondent relies on all three methods of proof – the confessional statement of the Appellant, the eyewitness testimony of the victim of the crime, the PW1, and the circumstantial evidence of the fact of the Appellant having been arrested at the locus criminis with part of the money, proceeds of the robbery and a gunshot injury said to have been inflicted on him by a member of the robbery gang, be it accidental or otherwise. The Appellant has however argued forcefully against the probative value of the evidence of identification and the confessional statement.

The law is well settled on the conjunctive ingredients which the prosecution has to establish beyond reasonable

doubt in order to secure a conviction for armed robbery. They are:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the accused person was one of the armed robbers.

It is agreed on all sides that the first two ingredients are present and were established by the evidence. It is only the third ingredient of the Appellant being one of the robbers that is in contention in this appeal. This has narrowed down the quodlibet in this matter. As earlier stated, the prosecution relied on the confessional statement of the Appellant in proof of its case. The Appellant has challenged the said statement contending, inter alia, that the lower Court did not write a considered Ruling after the trial within trial when it admitted the confessional statement in evidence and furthermore, that the lower Court failed to find evidence corroborating the statement before it proceeded to convict on the same, when the Appellant had retracted the statement at the trial.

I have painstakingly gone through the Records of Appeal. In the course of the testimony of the PW3, the prosecution sought to tender the extra-judicial statement of

the Appellant, whereupon an objection was taken that the statement was not made voluntarily. A trial within trial was consequently conducted (See pages 25-28 of the Records). At the end of the trial within trial, the lower Court adjourned for Ruling and further hearing (page 28 of the Records). For reasons best known to the Appellant, he failed to compile the Ruling of the lower Court in the trial within trial. What the Appellant has latched on to at page 29 of the Records for his submission that the lower Court did not write a considered Ruling but merely admitted the confessional statements in evidence cannot be correct. At the end of the trial within trial, the lower Court adjourned for Ruling in the trial within trial and further hearing in the main trial. What is compiled at page 29 of the Records is the proceedings at the continuation of the main trial, showing the continuation of the testimony of the PW3 who was testifying before it became necessary to conduct the trial within trial. The statement by the lower Court admitting and marking the confessional statement as exhibits is not the Ruling in the trial within trial, but rather the continuation of

proceedings in the main trial. The Appellant’s contention that the lower Court did not write a considered Ruling in the trial within trial is specious and disingenuous.

With due deference to the Appellant’s Counsel, it cannot be confuted that the lower Court wrote a considered Ruling in the trial within trial, but for whatever reasons, the Appellant did not compile and incorporate the said Ruling in the Records of Appeal. In its judgment at page 62 of the Records, the lower Court stated thus:
“In a well-considered ruling, delivered on the 14th day of February, 2017, the Court held that the accused person made the statements voluntarily and therefore admitted the said statements in evidence and marked them as Exhibit C1 and C2 respectively.”

The above pericope is lucent that a “well considered” Ruling was written in determination of the trial within trial. I am therefore unable to accede to the Appellant’s contention that the confessional statement was wrongly admitted in evidence as the lower Court failed to write a considered Ruling on the trial within trial.

Be that as it may, the evidence adduced

at the trial within trial was such that it need not have continued up to the stage of the lower Court writing a Ruling, since it is clear that the Appellant’s case at the trial within trial was not that he made a statement involuntarily, but rather, that he did not make any statement at all and that he did not know “when they pressed my thumb on the statement.” (Page 27 of the Records.) Furthermore, at page 28 of the Records, the Appellant testifying under cross examination in the trial within trial stated: “I don’t know if I am the one that thumbprint the statement.” This goes to non est factum as it raises, not the question of voluntariness of the statement, but an outright denial of the statement. In IBEME vs. THE STATE (2013) LPELR (20138) 1 at 5, Chukwuma Eneh, J.S.C. stated:
“…where the challenge of voluntariness of an accused confessional statement vis-à-vis his testimony in a trial within trial is hinged on an outright denial of the statement sought to be tendered by the prosecution as here that it amounts to a retraction of the statement and that such a statement is otherwise admissible and

reliable without the necessity of conducting a trial within trial (i.e. a mini trial) as its voluntariness is not in issue.”
Furthermore, in LASISI vs. THE STATE (2013) LPELR (20183) 1 at 28-29, Onnoghen, J.S.C. (later CJN) stated:
“…where an accused person denies making the statement sought to be tendered, the issue of trial within trial is not relevant as it is settled law that the said statement is admissible in evidence, subject however to the weight to be attached thereto.”
See also ODEH vs. FRN (2008) ALL FWLR (PT 424) 1590 at 1618.
What is more, even though the lower Court ought to have aborted the trial within trial at the stage when it became obvious that the Appellant was denying making the statement, not that it was not made voluntarily; the lower Court at the end of the trial within trial admitted the statement in evidence showing that the prosecution established that the statement was made voluntarily. Once a confessional statement is admitted in evidence following a trial within trial, it is difficult for an appellate Court to intervene on an appeal against its admissibility in evidence as the

evaluation of the evidence adduced at the trial within trial is based on the credibility of witnesses, which is the primary duty of the Court of trial where the judge has the unparalleled advantage of having, seen the witnesses testify and watching their demeanour. See LASISI vs. THE STATE (supra) and MUSA vs. THE STATE (2019) 4 NWLR (PT 1662) 335 at 345. Undoubtedly, there is no basis on which to fault the lower Court admitting the confessional statements of the Appellant in evidence.

Doubtless, it is trite law that a confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. A confessional statement in criminal law is a statement which admits of the crime. The Appellant retracted and resiled from the confessional statements at the trial. In such circumstances, the law is that a Court cannot act on the confessional statement without first applying the test for

determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189, ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20 and OSENI vs. THE STATE (Supra) at 387 to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is

consistent with the other facts ascertained and proved.

The Appellant argued that the lower Court did not apply the requisite test before convicting on the confessional statements. This cannot be correct. At pages 67-68 of the Records, the lower Court stated thus:
“The position of the law is that an accused person may be convicted solely on his confession. However the law requires some evidence no matter how slight, of circumstances which make it probable that the confession was true.
In other words, there should be corroboration of the confessional statement. See Ikemson V. The State (1989) 3 NWLR (pt. 110) 455 Adekoya V. The State (2013) ALL FWLR (pt. 662) 1632.
In the instant case, the testimony of the victim PW1 is to the effect that on 11/3/2013 at about 12 noon, he withdrew the sum of N1 Million from Eco Bank and as he was driving his Honda car along Bashorun road, shortly after the market, two motorcycles [sic] with two men on each motorcycle armed with guns shot and robbed him of most of the money.
Furthermore, PW3 told the Court that a Honda Salon car along with money were recovered from the scene of the armed robbery.

These pieces of evidence corroborates the statement of the accused who stated inter alia that himself and his cohorts rode on two motorcycles with two men on each motorcycle and pursued a Honda vehicle until they caught up with it. Then they shot PW1 who was behind the wheels and robbed him.
The accused person in his statement to the police stated that he was mistakenly shot by Ola (one of his partners in crime). PW3 testified on oath that when the accused person was arrested he had a gunshot wound.
It is clear that the confession of the accused person is corroborated by independent pieces of evidence which I have highlighted above. As a result the confession of the accused person is voluntary, positive and unequivocal.”

By all odds, the lower Court applied the requisite tests and found other evidence outside the confession on the basis of which it found that it was probable that the confession was true and accordingly convicted on it.

The Appellant tried to fault his identification as one of the robbers. In holding that the prosecution established that the Appellant was one of the robbers, the lower Court at page 67 of the

Records quoted from the Appellant’s confessional statement and opined:
“In a portion of the said statement, the accused person stated inter alia as follows:
‘when it was about 10a.m. Ola said that we should all prepare and we all left the hotel on the motorcycles. I rode on one, conveying Ola while Sylvester rode the other carrying Jeremiah. Ola directed my way as I am not familiar with the route. At a point Ola asked me to stop while he made some calls then within a short time he ordered that we move ahead.
Later we sighted one Honda car and Ola directed me to pursue the vehicle. I moved after the vehicle while the other guys on the second motorcycle followed. When approaching Ola pulled out a shot gun. He fired the man in the Honda car and ordered for the money … Ola shot me by mistake on our way to escape after we had succeeded in attacking and robbing the victim. The money found in my pocket is my own share from the loot given to me by Ola. He put the money in my pocket when he noticed that he had shot me. I don’t (sic) know the exact amount of the money until we got to the police station and the police counted

the money…’
It is clear from the above portion of the statement of the accused that he took part in the armed robbery attack of PW1 and also had on him part of the money snatched from the victim.”

The lower Court thereafter applied the requisite tests to ascertain the veracity of the confession and then conclusively held at page 68-69 the Records thus:
“That being the case, the prosecution has succeeded in establishing that the accused person took part in robbing PW1.
I am mindful of the contention of the learned counsel to the accused person to the effect that the failure of the prosecution to conduct an identification parade is fatal to the prosecution case.
It is settled law that it is not in every instance that identification parade is necessary. In a situation where the accused person in his statement to the police admits the crime and identifies himself as in the instant case, identification is unnecessary.
In the case of Samuel Attah V. The State (2010) 10 NWLR (pt. 1201) 190 at 225-226 the Supreme Court held per Adekeye J.S.C. that an identification parade is not a sine qua non where the accused

person admitted the crime. See also Adisa V. The State (1991) NWLR (pt. 168) 1168.
That being the case, the contention of the counsel that identification parade ought to have been conducted is misplaced.
The prosecution has therefore established the three essential ingredients of armed robbery against the accused person.
The accused person is found guilty as charged in count 2.”
It is no doubt trite law as held in NDIDI vs. STATE (supra) at 651-652 per Aderemi J.S.C. that:
“whenever the case of an accused person depends wholly or substantially on the correctness of the identification of the accused or defendant which defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification.”
It is however imperative to state that the case against the Appellant was not dependent wholly or substantially on the correctness of the identification of the Appellant by the PW1. Howbeit, I iterate that not only did the PW1 give a graphic account

of the incident and how he was able to identify the Appellant by the T-shirt he was wearing, the Appellant in his confessional statement confessed to the commission of the offences charged. In THE STATE vs. OLASHEHU SALAWU (2011) LPELR (8252) 1 at 49-50, Adekeye, J.S.C. stated inter alia thus:
“Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. …Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused a parade is not necessary. Recognition of an accused may be more reliable than identification.”
See also ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190 at 225-226, OSUAGWU vs. THE STATE (2013) 1 SCM 170 at 182 and ADEBAYO vs. THE STATE (2014) ALL FWLR (PT. 743) 1994.

The lower Court therefore arrived at the correct decision that the evidence established all the ingredients of the offence of armed robbery, especially that the Appellant was one of the armed robbers.

The Appellant faulted his conviction on Count I of the Charge for conspiracy contending, inter alia, that the offence charged did not allege that he conspired with anyone. Now, conspiracy as an offence is the agreement by two or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA vs. THE STATE (1972) 8-9 SC 108 or (1972) LPELR (1356) 1 at 23-24, Fatayi-Williams, J.S.C. (as he then was) stated as follows:
“Conspiracy as an offence is nowhere defined in the Criminal Code…It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051).

In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”
See alsoIBRAHIM vs. THE STATE (1994) LPELR (14350) 1 at 7-10. The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR vs. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. F.R.N. (2001) 53 WRN 20 at 54 and THE STATE vs. OSOBA (2004) 21 WRN 113.
Without a doubt, it is abecedarian law that a count of the offence of conspiracy must allege that the conspiracy involves more than one person since a person cannot conspire with himself. Count I of the Charge on the conspiracy charged reads:
“COUNT I
That you, PHILIP IGWE, ‘M’ on or about the 11th day of September, 2013, at Basorun Area, in Ibadan judicial Division, did conspire to commit a felony to wit: Armed Robbery contrary to Section 6 (b) and punishable under

Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.”

It is effulgent that the above Court charges the Appellant alone as having conspired.

answer is ‘no one’ has been mentioned, stated or referred to in the charge as the ‘one’.”
Also inOSHO vs. THE STATE (2011) LPELR (4804) 1 at 37 Garba, J.C.A. [now J.S.C.] quipped:
“Let me point out that by the definition of the offence of conspiracy, it is beyond viable argument that it takes two or more persons to agree for the offence to be committed. It is therefore a restatement of the requirements…. by Ogbuagu, J.S.C. in the case of SULE vs. STATE (supra) when he said:-
‘It takes two to conspire’.
Since it takes two or more people to conspire, it follows therefore that a single person is in law incapable of agreeing alone and so cannot properly be charged with, let alone be convicted for the offence of conspiracy.”
See also FAYEMI vs. A-G WESTERN NIGERIA (1966) LPELR (25317) 1 at 3, SULE vs. THE STATE (2009) 17 NWLR (PT 1169) 33 at 63 and FRN vs. EGBEFOH (2019) LPELR (47872) 1 at 26-27.
It consequently follows that on the settled state of the law, the Appellant having been charged alone in Count I for conspiracy could not have been so convicted as he

could not have conspired with himself and the count of the Charge was silent on who he conspired with, even if “persons unknown”. The conviction of the Appellant on the count of conspiracy is consequently set aside.

However, this does not affect the substantive offence which I have agreed with the decision of the lower Court that the prosecution established all the ingredients of the offence. In ADAMU vs. THE STATE (2017) LPELR (41436) 1 at 46, the apex Court held:
“The appellant’s stand is that the two counts and the entire proceedings be declared a nullity. This would be taking technicality too far particularly where the offence of conspiracy is a separate distinct and independent offence from the substantive. Since either of the two counts can fall or succeed standing alone, only count 1 of conspiracy which being visited with the fundamental vice would fail without dragging down count 2 which had no non-compliance defect.”
I kowtow.
See also IBOJI vs. THE STATE (2016) LPELR (40009) 1 at 14, BALOGUN vs. A-G OGUN STATE (2002) 2 SC (Reprint) 89 at 96 or (2002) FWLR (PT 100) 1287 at 1306, AGUGUA vs. THE STATE

(2017) LPELR (42021) 1 at 19 and ADAMU vs. THE STATE (supra) at 11-13.

The concomitance is that the epitome of the foregoing is that the lower Court was wrong when it convicted the Appellant for conspiracy as charged in Count I. The Appellant’s appeal accordingly succeeds in respect of the said count and his conviction and sentence on Count I is hereby set aside. However, the lower Court rightly returned a verdict of guilty in respect of Count II since the evidence adduced by the prosecution established and proved the ingredients of the offence of armed robbery charged in the said Count beyond reasonable doubt. The decision of the lower Court on the said Count II, embodying the conviction and sentence of death imposed on the Appellant is hereby affirmed. Even though the appeal has succeeded in part, it affords cold comfort for the Appellant as the affirmation of the conviction and sentence imposed on him on Count II of the Charge still leaves the Appellant between the rock and a hard place.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the lead judgment of my Lord, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered.

My Lord has dealt with all the issues in this appeal in a meticulous manner, I have nothing to add.

I am also of the view that the ingredients of the offence of Armed Robbery were proved beyond reasonable doubt against the Appellant i.e., that:
(a) That there was a robbery.
(b) That the robbery was an Armed Robbery and
(c) That the accused/Appellant was one of the armed robbers.

Having also read the record of appeal and the briefs of argument filed by the parties I agree that the appeal succeeds in part. I abide by the consequential Orders made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I read in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. I agree with the reasoning and conclusion reached therein.

In this appeal, the Appellant made a confessional statement to the Police which was tendered and admitted in evidence during trial. In the said statement, he narrated how he and his accomplices rode on two Motorcycles, how they attacked the victim and robbed him. He however retracted the statement. As required by law, the learned trial Judge conducted the veracity

test and found that the Appellant’s confessional statement was sufficiently corroborated by the testimony of PW1 and PW2.

In MUSA VS STATE (2019) 4 NWLR (PT. 1663)335 AT 345-346 PARAGRAPHS H-A, the Supreme Court held, per M.D. Muhammad, J.S.C. as follows:
“Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court that saw and assessed the credibility of the witnesses. The appellate Court that does not enjoy this much advantage cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse. A Court’s findings are perverse where they are speculative, not being based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious. Because of the miscarriage of justice they occasion, perverse findings do not sustain a judgment on appeal even if same had been upheld by the Court of Appeal. See Jolayemi & Ors. v. Alaoye & Anor. (2004) 12 and Akinlagun & ors. v. Oshoboja & Anor. (2006) LPELR-348; (2006) 12.”
The Appellant has not been able to fault the

evaluation of evidence done by the learned trial Judge and I also have no reason to do so. Submissions of the Appellant’s Counsel that the finding of the trial Judge on the Appellant’s Confessional Statement is perverse is not supported by the evidence on record. I find no reason to disturb the findings of the trial Judge and I hold that the evaluation of evidence and conclusion reached by him are not perverse in any way.

For this and the fuller reasons contained in the lead judgment, I too hold that the appeal succeeds in part. I also set aside the Appellant’s conviction on Count 1 of the charge and affirm his conviction on count 2 of the charge for the offence of armed robbery.

Appearances:

I. Okolo, Esq. For Appellant(s)

A. Osuolale, Esq., Senior State Counsel, Ministry of Justice Oyo State with him, B. A. Afolabi, Esq., State Counsel
For Respondent(s)