MICHAEL v. STATE (2022)

MICHAEL v. STATE

(2022)LCN/17093(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, December 15, 2022

CA/AK/406CA/2019

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

ABBAH MICHAEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON PROVING THE OFFENCE OF CONSPIRACY

Whenever a person is charged for conspiracy to commit an offence along with the commission of the substantive offence the proper approach by the Court in resolving the charges is to first deal with the substantive offence or charge and then proceed to determine whether conspiracy has been proved or can be inferred from the circumstance. Osetola V. State (2012) 17 NWLR (Pt 1329)251, Jimoh V. State (2014) 10 NWLR (Pt 1414) 105.

Starting with the offence of armed robbery, the law is settled as to what constitute armed robbery; it simply means stealing plus violence in the words of Nnaemeka Agu JSC, in Aruna VS. State (1990) NWLR (Pt. 155) 125, “Armed robbery means simply stealing plus violence used or threatened” Mohammed V. State (2022) LPELR 57830 (SC), Okobi V. State (1984) LPELR 2453 (SC). PER BASIR, J.C.A.

THE ESSENTIAL ELEMENTS OF THE OFFENCE OF ARMED ROBBERY

What we are faced with in this appeal in addition to conviction for armed robbery there is also a conviction for murder, at the base of it all is the notorious fact that in a trial for murder, the prosecution must prove its case beyond reasonable doubt and in so doing the essential ingredients must be made out. These essential elements are:
(1) That the death of a human being has actually taken place.
(2) That the death was caused by the accused.
(3) That the act was done with the intention to cause death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.
In proof of those elements, the prosecution could rely on direct eye witness account of the incident, voluntary confessional statement or circumstantial evidence. See Kaza V. State (2008) 7 NWLR (Pt. 1085) 125 163, Oludamilola V. State (2010) 181 LRCN 1 at 16, Mustafa Mohammed & Anor V. State (2007) CRCN 110 at 125 and Adio V. State (1986) 2 NWLR (Pt. 24) 581. See also Ugochukwu Okereke V. State (2016) LPELR 40012 (SC). PER BASIR, J.C.A.

WHETHER OR NOT THE PROSECUTION HAS TO CALL A HOST OF WITNESSES IN ORDER TO PROVE ITS CASE

Secondly, the law does not impose on the prosecution to call a host of witnesses in order to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Olayinka V. State (2007) 9 NWLR (Pt. 1040) page 561 and Odili V. The State (1977) LPELR-2221 (SC).
Moreover, only evidence duly adduced and received in the course of hearing a matter in Court that will make or mar the prosecution’s case, not statement of any other person merely attached to the proof of evidence. PER BASIR, J.C.A.

WHETHER OR NOT THE DEFENCE MUST CHALLANGE ALL EVIDENCE IT WISHES TO DISPUTE BY CROSS-EXAMINATION

The evidence given against the Appellant was never challenged or controverted during cross-examination, appellant did not ask one single question to challenge or controvert the evidence that he participated in the crime or that he voluntarily made a confession, having not led any cogent and compelling evidence in his defence, the law is trite that the Court is entitled to belief and rely on such evidence in coming to its verdict. State V. Oray (2020) 7 NWLR (Pt 1722) 130, Igwe V. People of Lagos State, just like my noble brother Habeeb Adewale Abiru JCA wondered in the unreported sister case of Olowodagba Tosin V. The State, Appeal No. CA/AK/406C/2019, Akure Division delivered on 20th June, 2022 to which I fully concurred, my Lord observed thus:
“All the queries raised by Counsel to the Appellant in his brief of argument against the evidence of the first prosecution witness were present and available to Counsel at the time of cross-examining the witness, but not one of the queries was asked the witness. Counsel obviously forgot that the proper state for discrediting the case of the Respondent and the prosecution witness is not in the address of Counsel or the brief of argument on appeal but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever prosecution witness had placed in evidence but certainly not on appeal as counsel sought to do. Balogun V. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro V. State (2012) 1 SC.”
In criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination. Where the evidence of a witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal, per Supreme Court in Igwe V. People of Lagos State (supra) pages 451-452.
Exhibit 9 is the confessional statement of the Appellant like I observed earlier it was admitted without any objection and the Appellant Counsel did not cross-examine the PW1 through whom the Exhibit 9 was tendered. Meaning that the appellant has accepted the truth of the evidence of the witness on the fact that the confessional statement was indeed made voluntarily by the appellant. See Esene V. State (2017) 8 NWLR (Pt. 1568) 337, Isah V. State (2018) 8 NWLR (Pt. 1621) 346, Egba V. State (2019) 15 NWLR (1695) 201. PER BASIR, J.C.A.

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of the appeal filed by the Appellant Abbah Micheal against the decision of the Ondo State High Court of Justice Akure Division delivered on the 17th day of January, 2018.

The Appellant was the 2nd Defendant charged along with 3 others before Justice W. R. Olamide by way of an information for the following offences:
(1) Conspiracy to commit armed robbery contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation.
(2) Conspiracy to commit murder contrary to and punishable under Section 324 of the Criminal Code Cap 37 Laws of Ondo State 2004.
(3) Armed robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation.
(4) Murder contrary to Section 316 and punishable under Section 219 of the Criminal Code, Cap 37, Vol. 1 Laws of Ondo State of Nigeria, 2006.

The fifth count which deals with receiving stolen property concerns only the 4th defendant Mr. Adeniyi Friday who was discharged and acquitted at the trial while the Appellant and two others; 1st and 3rd Accused Persons were found guilty convicted and sentenced to death by hanging.

The facts upon which the case was founded leading to the trial and conviction of the Appellant is that on the 31st day of August, 2013, the Appellant along with 2 others namely: (1) Olowodagba Tosin (2) Ameh John, that the 3 of them conspired together while being armed with a gun and other dangerous weapons along Bolorunduro-Ogbese road robbed one Pc. Edema Omoniyi of an unregistered Honda motorcycle who was shot and killed in the process of the robbery.

At the end of a full scale trial where two witnesses testified for the prosecution and 7 for the defence, the Learned Trial Judge in a considered judgment found the Appellant guilty as charged convicted and sentenced him thus:
“You Abbah Michael, the sentence of the count on you is that you be hanged by the neck until you be dead may the Lord have mercy on your soul.”

This appeal is therefore against the above verdict. The Notice of Appeal containing 6 Grounds of Appeal was filed on 12th July, 2021 after obtaining leave for extension of time within which to appeal from this Court.

Consequently, the appeal was eventually entered on the 13th day of September, 2021.

The Appellant’s Brief of Argument filed on 12th October, 2021 settled by Oladele Ojogbede, Esq., the learned Counsel formulated three issues for determination, thus:
ISSUES FOR DETERMINATION
(i) Whether the learned trial judge was not in error to have convicted the Appellant for the offence of criminal conspiracy to commit armed robbery and murder, despite the apparent failure of the prosecution to establish the meeting of minds as between the Appellant and other Defendants to commit such crimes? (Distilled from Ground 2 of the Grounds of Appeal)
(ii) Whether the learned trial judge was not in error when he relied heavily on Exhibit 6 (the confessional statement of a co-accused person) which the Appellant did not adopt to convict him for the offences of armed robbery and murder despite the absence of an eye witness account and the material contradictions apparent in the evidence of the prosecution witnesses? (Distilled from Grounds 1, 3 and 4 of the Grounds of Appeal)
(iii) Whether in the overall circumstances of this case, the prosecution can be said to have proved its case against the Appellant beyond all reasonable doubt in the light of the weak unsubstantiated and unproven evidence adduced at the trial? (Distilled from Grounds 5 and 6 of the Grounds of Appeal).

ARGUMENT OF APPELLANT COUNSEL
Learned Counsel to the Appellant submitted that there was no sufficient evidence of conspiracy between the Appellant and the other persons alleged to be involved in the crime, in this regard the holding by the trial Judge was in the realm of speculation; submits that a Court of Law is not expected to speculate but must decide issues on the strength of evidence presented before it. See Okoro V. State (1964) 1 All NLR 423.

Counsel submits that there are doubts as to identification of the Appellant from the evidence of PW1 who the Appellant said he does not know. Peter Ogwuche who was not called as a witness during the trial but whose statement is contained in the proof of evidence would have been the ideal witness but his statement according to counsel contradicted the evidence of PW1 received in Court.

On issue two (ii), the learned Appellant Counsel submits that the statement of DW1, Exhibit 6 is not binding on the Appellant not having adopted same. See Titilayo V. State (1998) 2 NWLR (Pt. 537) 235, Tanko V. State (2008) 16 NWLR (Pt. 1114) 628.

Submits further that by virtue of Section 29(4) of the Evidence Act 2011, where an accused person makes a confessional statement in the presence of a co-accused person which incriminates the co-accused person, such a statement cannot be taken into consideration by the Court as against such a co-accused unless he adopted the statement either by words or conduct. In this case, according to Counsel, the Appellant has not adopted Exhibit 6 so it should be discountenanced against him.

The learned Appellant’s Counsel argued that the only thing linking the Appellant to the offences charged is his retracted confessional statement. And it is trite law that a Court does not convict on a retracted confession. Unless it passed the test set up in Gabriel V. State (1989) NWLR (Pt. 122) 457.

Submits that the offence of murder has not been proved beyond any reasonable doubt because, whereas the medical report, Exhibit 1 suggested that the deceased died of gunshot injuries, this was contradicted by the evidence of PW2 who contended that he went to the hospital to see the corpse of the deceased, “there were matchet cuts round his body”.

Counsel submits further that having regards to the contradictory nature of this evidence the real cause of death remain mysterious and has not been conclusively established: whether he was killed by gunshot or by matchet cuts. So the trial Judge could not have safely convicted the Appellant without causing damage to the cause of justice.

In the light of which the Appellant’s Counsel submits that the finding of the trial Court that the Appellant and others murdered the deceased is perverse.

Submitting on the third and last issue, the Appellant’s Counsel submits that the failure to call one Dr. Osason the person who prepared the medical report tendered and admitted as Exhibit 1 has denied the Appellant the opportunity to cross-examine the Doctor, by implication amounts to denial of fair hearing Counsel cited Section 36(6) (d) of the 1999 Constitution and urged this Court to nullify the entire proceedings on that account and strike out Exhibit 1. See Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 295, Esen V. The People of Lagos State (2014) 2 NWLR (Pt. 1390) 114 and Al-Mustafa V. State (2013) 17 NWLR (1383) 365.

Submit further that the evidence adduced at the trial is so weak and unsubstantiated that no reasonable Tribunal would feel safe to convict on them.

That there are contradiction in the case to the extent that it is not certain whether the offence was committed in the morning or in the evening even the circumstance leading to the recovery of the gun and the precise location where it was recovered was in the realm of speculation; and conjectures.

This contradictions should not be ignored.

On the whole, learned Appellant’s Counsel urged this Court to resolve all the three issues in favour of the Appellant.

RESPONDENT’S BRIEF OF ARGUMENT
Shehu Wada Abdullahi, Esq., on behalf of the Respondent prepared the Brief of Argument filed on 2nd November, 2021 where he donated a sole issue for determination to wit:
“Having regard to the facts of the case and the evidence led by the prosecution, whether the trial Court was not right in convicting the Appellant.”

Learned Respondent’s Counsel submitted that this sole issue encompasses all matters in this appeal.

Counsel submits that the facts of this case revealed that there was robbery on 1st September, 2013 as can be gathered from Exhibit 9 which is the Appellant’s confessional statement though retracted but the Court according to the Respondent’s Counsel was right in relying on it to convict the Appellant being a free and voluntary confession which has met all the requirements of law stipulated in Sale V. State (2020) 1 NWLR (Pt. 1705) 205.

Counsel submits that at the trial the offence of conspiracy to commit armed robbery and murder has been successfully proved. After all to prove conspiracy, it is not necessary that there should be direct communication between each and every other conspirator, provided that the criminal design alleged is common to all. Okoh V. State (2014) 8 NWLR (Pt 1410) 502.

Submit that from the contents of Exhibit 9 it is clear that there is a common intention to commit robbery as the Appellant and his cohorts perfectly planned and executed their motive and intention.

On the offence of armed robbery, learned Counsel submits that by the evidence adduced at the trial Court particularly Exhibits 2, 3 and 17 proves that armed robbery actually took place for which the Appellant had confessed by virtue of Exhibit 9.

PW1 testified that the persons who perpetrated the act were armed, more especially when regard is had to the fact that the victim of the robbery evidence have shown died of gunshot as per Exhibit 1 (Autopsy report) admitted without any objection. The Court is bound to rely on such document. It has also been proved that the intentional act of the Appellant caused the death of the deceased.

In short, Counsel to the Respondent submit that conspiracy was proved by circumstantial evidence and the Appellant’s confessional statement.

Learned Counsel also stated the ingredients for the offence of armed robbery and related them to the evidence on record either in the Exhibits tendered or the oral evidence of witnesses and the Appellant’s confessional statement just in the same vein, Learned Respondent’s Counsel submit that the prosecution has succeeded in establishing all the ingredients needed to convict for armed robbery as well as murder. Quoting copiously excerpt of the evidence adduced at the trial as well as the contents of the confessional statement of the Appellant, counsel also submitted that a Court of law is entitled to convict even on retracted confession as long as it is properly done. Moreover retraction of confession affects only the weight to be attached to the document. Supporting this stand with some judicial authorities among which are Kanu & Anor V. King (1952) 14 WACA p. 30, Mbenu V. State (1988) 3 NWLR (Pt. 84) and Egbogbome V. State (1993) 7 NWLR (Pt. 306)383.

On whether the trial Court relied on Exhibit 6 statement of a co-accused to convict the Appellant, Respondent’s Counsel submits that the current position of the law is that the Court will look at the incriminating statement of the co-accused and see whether there is a link between it and other evidence in the case. This much was enunciated in Adeleke V. State (2013) LPELR 20971 (SC) 35 and Ajaegbo V. State (2018) 11 NWLR (1631) 484.

On the basis of the foregoing, the Respondent urged this Court to dismiss the appeal for being unmeritorious and frivolous and then uphold the conviction of the Appellant.

RESOLUTION OF ISSUES
Upon the review of the arguments and submission of the learned Counsel for the Appellant and Respondent in their respective briefs; I find the sole issue for determination formulated by the Respondent’s Counsel more comprehensive and sufficient enough to resolve the entire appeal one way or the other. The issue goes thus:
“Having regard to the facts of the case and the evidence led by the prosecution, whether the Trial Court was not right in convicting the Appellant.”

It is indeed the law that where the commission of an offence is in issue in any criminal proceedings the only thing that will suffice and ground a valid conviction is that the allegation must be proved beyond reasonable doubt.

The Appellant was proceeded against 4 (four) distinct heads of charges name:
(1) Conspiracy to commit armed robbery
(2) Conspiracy to commit murder
(3) Armed robbery and
(4) Murder.

Whenever a person is charged for conspiracy to commit an offence along with the commission of the substantive offence the proper approach by the Court in resolving the charges is to first deal with the substantive offence or charge and then proceed to determine whether conspiracy has been proved or can be inferred from the circumstance. Osetola V. State (2012) 17 NWLR (Pt 1329)251, Jimoh V. State (2014) 10 NWLR (Pt 1414) 105.

Starting with the offence of armed robbery, the law is settled as to what constitute armed robbery; it simply means stealing plus violence in the words of Nnaemeka Agu JSC, in Aruna VS. State (1990) NWLR (Pt. 155) 125, “Armed robbery means simply stealing plus violence used or threatened” Mohammed V. State (2022) LPELR 57830 (SC), Okobi V. State (1984) LPELR 2453 (SC).

For there to be a conviction on a charge of armed robbery, the following three ingredients must be established. Namely:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery
(3) That the accused while with arms participated in the robbery. See Bozin V. State (1985) 799 SC and Barnabas V. State (2022) LPELR – 58244.

The fact that robbery had taken place is simply not in doubt here as per the evidence of PW1 Sgt. Nurudeen Adegboyega, he testified as one of the police officers who investigated the offence and that their investigation established “that the 1st, 2nd and 3rd Defendants (2nd defendant is the Appellant here) jointly carried out the operation which led to the death of the deceased Mr. Edema Omoniyi, a police officer attached to Bolorunduro police station, the crime was committed on the 31st August, 2013 between 8:00pm and 9:00pm when the deceased was going home after work.

This piece of evidence and the recovery of the weapon of offence from one of the suspects coupled with the contents of the Appellant’s confessional statement clearly suggest and conclusively establish armed robbery from which a human being was killed occurred on 31/8/2013 along Ogbese/Bolonduro road, Akure.

What we are faced with in this appeal in addition to conviction for armed robbery there is also a conviction for murder, at the base of it all is the notorious fact that in a trial for murder, the prosecution must prove its case beyond reasonable doubt and in so doing the essential ingredients must be made out. These essential elements are:
(1) That the death of a human being has actually taken place.
(2) That the death was caused by the accused.
(3) That the act was done with the intention to cause death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.
In proof of those elements, the prosecution could rely on direct eye witness account of the incident, voluntary confessional statement or circumstantial evidence. See Kaza V. State (2008) 7 NWLR (Pt. 1085) 125 163, Oludamilola V. State (2010) 181 LRCN 1 at 16, Mustafa Mohammed & Anor V. State (2007) CRCN 110 at 125 and Adio V. State (1986) 2 NWLR (Pt. 24) 581. See also Ugochukwu Okereke V. State (2016) LPELR 40012 (SC).

From the records of this appeal, it is obvious that the State relied in proof of the case against the Appellant on both circumstantial evidence and confessional statement on the basis of which the trial Court convicted the Appellant who was the 2nd accused at the trial Exhibit “9”.

The Appellant’s Counsel complained that the Appellant had retracted his confessional statement and did not adopt the statement of the first defendant as would have entitled the learned trial Judge to rely upon and find the Appellant guilty of the offences charged. The learned trial Judge stated in his judgment that notwithstanding the retraction the Court could still rely on the confessional statement to convict the Appellant where the confession is cogent and unequivocal and where it passes the credibility test enunciated in Madjemu V. State (2001) 9 NWLR (Pt. 718) 349 and several other cases including Taye Ikujuni V. State (2016) LPELR 41343 (CA).

It is also clearly on record that the lower Court in its judgment actually subjected the Appellant’s retracted statement to the credibility test in addition to credible corroboration found in the testimony of PW1 and evidence of other defence witnesses which convinced the trial lower Court that the retraction was merely an afterthought.

The lower Court found that one Edema Omoniyi actually died from gunshot injuries which was obviously inflicted from behind by a third party and evidence have shown only the Appellant and the other suspect perpetrated the act.

Let me even add that there is evidence that apart from the gun held by one of the conspirators during the robbery others including the Appellant had some matchet/wood therefore, the evidence that the corpse of the deceased contained matchet cut in addition to gunshot wounds is consistent and credibly worthy of belief. After all, PW2 only said he saw matchet cut on the body of the deceased but did not say as much as those cuts actually cause his death. There is therefore no contradiction between the evidence of PW2 and the Doctor report, Exhibit I on the cause of death.

The lower Court has done pretty well in the process of the evaluation of the evidence adduced before it which in any case is the primary responsibility of the trial Court in this regard. There is no reason for this Court to interfere with the evaluation and ascription of probative value done by the trial Court as there is nothing perverse in the exercise carried out by the lower Court. See Oke V. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332.

The Appellant Counsel condemned the evidence of PW1 and challenged its efficacy based on the argument that it has contradicted the statement of one Peter Ogwuche attached to the proof of evidence who infact did not come forward to testify. Counsel contended that the contradiction was material just as much as the failure to call Mr. Ogwuche.
This submission is absurd because contradiction can only be said to exist in a party’s case where evidence of two witnesses go against one another head to head not when the evidence of a witness goes against the statement of somebody who did not testify as a witness. See Zakirai V. Mohammed & Ors (2017) LPELR – 42349 (SC).

Secondly, the law does not impose on the prosecution to call a host of witnesses in order to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Olayinka V. State (2007) 9 NWLR (Pt. 1040) page 561 and Odili V. The State (1977) LPELR-2221 (SC).
Moreover, only evidence duly adduced and received in the course of hearing a matter in Court that will make or mar the prosecution’s case, not statement of any other person merely attached to the proof of evidence.

But what is it that the PW1 told the Court in his evidence which the Appellant is saying is not sufficient to convict or that the trial Judge relied on confessional statement of the 1st defendant to convict the Appellant as there was no evidence against him.

The PW1 Sgt. Nurudeen Adegboyega, a police Sergeant attached to the homicide section of the State C.I.D, his evidence as per the records is that on the 1st day of September, 2013, he was at home when the O. C. homicide DSP John Amubieya called him and asked him to report to the office, at the office he was informed that somebody was robbed and killed, his motorcycle taken away. The A.C.P ordered them to move to the crime scene at Ogbese/Bolonduro, which they did, based on the information at their disposal they arrested the Appellant and the accused person both of whom denied the allegation initially he went on to add that they recovered the motorcycle snatched from the deceased victim of the robbery.

The 3rd accused person was arrested later, all the three suspects including the Appellant confessed to the crime, their various statements were read over to them they agreed it was correct and signed same while the recorders counter-signed, PW1 said their investigation further confirmed that the Appellant and the 1st and 3rd accused persons jointly committed the robbery and the murder.

The weapon of offence was recovered from one of the suspects who operated together with the Appellant, a locally made gun, medical report on the cause of death were all tendered and admitted without any objection while PW2 confirmed that he was the person who as relative to the deceased identified his corpse. These pieces of evidence no doubt satisfied the requirement of establishing that a human being had died which invariably provided the additional pieces of evidence with which the veracity of the Appellant’s confessional statement can be judicially tested.

The Appellant has challenged the reliance by the Court below on Exhibit I, the medical report on cause of death on grounds of the absence of the maker and that there were inconsistencies on whether the deceased died of gunshot or matchet cuts. It is important to note that though desirable, a medical report is not sine qua non in determining the cause of death in a case of murder where there are other pieces of evidence upon which the cause of death can be inferred to the satisfaction of the Court. See Joseph Bille V. The State (2016) LPELR 40832 (SC), Alarape & Ors V. The State (2001) 5 NWLR (Pt 705) 79, Adekunle V. State (1989) 5 NWLR (Pt. 123) 505. See also Onitilo V. The State (2017) LPELR 42576 (SC).

What is most remarkable is that the medical report, locally made shotgun with the empty shell casing, the confessional statement of the Appellant were tendered and admitted without any objection even with respect to voluntariness of the confessional statement because Appellant’s Counsel withdrew his objection to the admissibility of the Appellant’s confessional statement, just about when a trial within trial to determine its voluntariness was about to commence. See page 35 of the records of appeal therefore the Appellant’s two extra-judicial statements were then admitted and marked Exhibits 8, 9 while the confessional statement/attestation form Exhibit 10 with this Exhibit in place, the trial Judge does not need Exhibit 6, statement co-accused, to determine the culpability of the Appellant.

The evidence given against the Appellant was never challenged or controverted during cross-examination, appellant did not ask one single question to challenge or controvert the evidence that he participated in the crime or that he voluntarily made a confession, having not led any cogent and compelling evidence in his defence, the law is trite that the Court is entitled to belief and rely on such evidence in coming to its verdict. State V. Oray (2020) 7 NWLR (Pt 1722) 130, Igwe V. People of Lagos State, just like my noble brother Habeeb Adewale Abiru JCA wondered in the unreported sister case of Olowodagba Tosin V. The State, Appeal No. CA/AK/406C/2019, Akure Division delivered on 20th June, 2022 to which I fully concurred, my Lord observed thus:
“All the queries raised by Counsel to the Appellant in his brief of argument against the evidence of the first prosecution witness were present and available to Counsel at the time of cross-examining the witness, but not one of the queries was asked the witness. Counsel obviously forgot that the proper state for discrediting the case of the Respondent and the prosecution witness is not in the address of Counsel or the brief of argument on appeal but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever prosecution witness had placed in evidence but certainly not on appeal as counsel sought to do. Balogun V. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro V. State (2012) 1 SC.”
In criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination. Where the evidence of a witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal, per Supreme Court in Igwe V. People of Lagos State (supra) pages 451-452.
Exhibit 9 is the confessional statement of the Appellant like I observed earlier it was admitted without any objection and the Appellant Counsel did not cross-examine the PW1 through whom the Exhibit 9 was tendered. Meaning that the appellant has accepted the truth of the evidence of the witness on the fact that the confessional statement was indeed made voluntarily by the appellant. See Esene V. State (2017) 8 NWLR (Pt. 1568) 337, Isah V. State (2018) 8 NWLR (Pt. 1621) 346, Egba V. State (2019) 15 NWLR (1695) 201.

Now, this is what the appellant said in the confessional statement:
“I of the above name and address voluntarily elect to state as follows: that I am a native of Owukoa in Ogbadibo local government area of Benue State. My father’s name is Ichuk Micheal while my mother’s name is Victoria Micheal both living at Owukpa village in Benue State. I attended Ejah Primary School Owukpa and stopped at primary 5. I did not further my education. It was Mr. Godwin Itudo that brought me to Bolonduro and I have served him for three years before he signed me with one Sunday ‘m’ living at Bolonduro to learn operator. I know Ameh John for the past two years and both of us live in the same house, I also know Tosin Olowodagba since 2010 at Ogbese, he always visited me at Bolondure but he has been sleeping with us since April of this year. It was Tosin that informed me that his boss living at Ikare said he should go and stole the motorcycle, that he alone could not do the job alone that myself and Ameh John should followed him to the operation. On Saturday 31/8/2013 at 9:00pm, three of us moved to Bolonduro/Express road and hide in the bush waiting for empty okada operator, we did not attack any okada operator that carried passenger. Tosin carried gun, Ameh John carried cutlass and wood while myself also carried wood. Immediately decease was coming and saw him alone not carried passenger, Tosin rushed out from the bush and shot the deceased with the gun, he quickly rushed back to the bushed and hide the gun then myself and Ameh returned to bolonduro while Tosin ride the motocycle to Ikare-Akoko to meet his boss name Adeniyi Friday ‘m’. We all agreed that Tosin should sell the motocycle at rate of N60,000 but he gave us condition that he would take N30,000 and give Ameh John and myself N15,000 each. The gun belong to Tosin and says that it was given to him by his boss Adeniyi Friday ’m’ living at Ikare-Akoko, this is my first operation with Tosin and I have never killed anybody in my life. I don’t know where Tosin use to get bullet but he told us that he always get it from his boss at Ikare.
Signed & Thumb printed
4/9/13.”

The evidence contained in this statement is consistent with the contents of Exhibit 1, the medical report, agrees substantially with the evidence of PW1 and from it are found all the elements constituting the offences of armed robbery, murder and criminal conspiracy.

I am of the firm opinion that the Appellant has not given any cogent or compelling reason why we should temper with the findings of the lower Court suggesting that the Respondent has made out a good case proving the allegation against the Appellant.

The overall circumstance of this case where 3 people including the Appellant came together to do some illegal acts to commit armed robbery and murder on 31/8/2013 along Bolnduro/Ogbese way Akure, necessarily imply conspiracy, the Trial Court was therefore right in arriving at the conclusion and drawing inference from the established facts that the Appellant is guilty of conspiracy.

The law is well settled that proof of the offence of conspiracy is a matter of inference drawn from circumstances under which the principal offence was committed; the Court is entitled to draw inference from facts and evidence adduced before it. See Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421 and Adebayo V. PDP (2013) 17 NWLR (Pt 1382) 1.

I find the inference drawn and relied upon by the trial Court in this case, very reasonable and in accordance with the evidence led by the parties in that the action of the Appellant with his cohorts which led to the death of the deceased in the cause of committing armed robbery was in furtherance of an agreement between them especially when regard is had to the evidence that after shooting the deceased, the culprits stole and sold his motorcycle to the 3rd accused person Mr. Adeniyi Friday who testified as DW4. By his own admission, the Appellant confessed that he was given N15,000.00 from the proceeds of the sale of the motorcycle. See Exhibit 9.

There is therefore no doubt whatsoever that the Appellant conspired with the other suspects, and committed the offences of armed robbery and murder for which they were tried and rightly convicted.

On the whole, I find no merit in this appeal. It is hereby dismissed. The judgment of the Ondo State High Court Akure delivered on 17th January, 2018 by Hon. Justice W. R. Olamide in Suit No AK/8C/2015 is hereby affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have the opportunity of reading in draft the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA in this appeal.

While the law is settled to the effect that the onus of proof is on the prosecution to prove its case beyond reasonable doubt, it is expected of the defendant to introduce reasonable doubt as it were to the case of the prosecution. This the accused person or defendant can do by controverting the case of the prosecution and adducing evidence to challenge the same and or by establishing his (accused person or defendant) own defence. Where as in the instant appeal, the Appellant offers no credible explanation to the allegation(s) against him or makes no effort as it were to controvert and successfully challenge the case of the prosecution, any attempt by such accused person or defendant to do what he ought to have done at the trial Court, on appeal would definitely be of no moment. See the case of BAKARE V. STATE (1987) LPELR-714(SC).

I am in agreement with the position of his Lordship in the leading judgment that the Appellant has failed to show why this Court should interfere with the judgment of the lower Court convicting and sentencing him (Appellant) of/for the offences preferred against him in the information on which he was tried.

I too therefore find this appeal to be without merit and accordingly dismiss the same.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusion reached therein. I have nothing more to add.