MINDI v. STATE (2020)

MINDI v. STATE

(2020) LCN/4937(SC)

In The Supreme Court

On Friday, May 08, 2020

SC.597/2018

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Between

BEMDOO MINDI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A CONFESSIONAL STATEMENT, ONCE PROVED, IS SUFFICIENT TO SUSTAIN A CONVICTION

It is now well settled that once a confessional statement is proved to have been made voluntarily, as in the instant case, such as being direct, positive, unequivocal and very suggestive of an admission of guilt by the accused person, it is sufficient to ground a conviction where the maker resiled therefrom or retracted the same completely at the trial. It has always been the position of this Court that a confessional statement, once properly proved, is sufficient to sustain a conviction despite the retraction by the maker as it is in the instant case. See Galadima v The State (2012) 18 NWLR (pt 1333) 610, Egboghonome v The State (1993) 7 NWLR (pt 307) 383, Okoh v The State (2014) 8 NWLR (pt 1410) 502, Ikpo & Anor v State (1995) 9 NWLR (pt 421) 540, Silas Sule Mohammed v The State (2014) 12 NWLR (pt 1421) 387.

THE MEANING OF THE CONCEPT “BEYOND REASONABLE DOUBT”

Fortunately, this Court has severally defined the concept. “proof beyond reasonable doubt” in quite a number of cases. Thus in Jua v The State (2010) LPELR-1637(SC), this Court per Niki Tobi, JSC (of blessed memory) explained the concept as follows:-
“Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not fanciful doubt, it is not an imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”
(at page 20 paragraphs C – E) see also Nwaturuocha v The State (2011) 6 NWLR (pt 1242) 170, Friday Smart v The State (2016) LPELR – 40827 (SC), Akindipe v The State (2012) 16 NWLR (pt 1325) 94, The State v Onyeukwu (2004) 14 NWLR (pt 813) 340, Ajayi v The State (2013) 9 NWLR (pt 1360) 589, Umoh Ekpo v The State (2018) LPELR – 43843(SC). PER OKORO, J.S.C.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

Now, the essential ingredients of the offence of armed robbery are as follows:-
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery. See Afolalu v The State (2010) 16 NWLR (pt 1220) 584, Emeka v The State (2014) 13 NWLR (pt 1425) 614, Bozin v The State (1985) 2 NWLR (pt 8) 465, Idemudia v The State (1999) 7 NWLR (pt 610) 202. Thus, before a Court can convict an accused person on the offence of armed robbery, the three ingredients must be present. PER OKORO, J.S.C.

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal sitting at Makurdi, delivered on 25th April, 2018 wherein the appeal against the appellant’s conviction by the Benue State High Court for conspiracy and armed robbery was dismissed. The appellant and his co- accused Agber Hueza were initially charged along with others, to wit: Terzingwe alias Love Fela and another person at large for the offences of criminal conspiracy and armed robbery punishable with death under Sections 1(2) (b) and 6(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria. 2010. However,the prosecution proceeded against the Appellant and his co-accused, Agber Hueza when the other accused persons could not be found in respect of the 1st, 2nd and 3rd of heads of Charge for the offences of criminal conspiracy and armed robbery punishable with death.

The Appellant and Agber Hueza who were tried together, were discharged and acquitted on the 2nd head of charge for want of proof, but were found guilty of the 1st and 3rd heads of charge, and were consequently convicted and sentenced to death.

Dissatisfied with the said conviction and sentence, the appellant appealed to the lower Court which dismissed his appeal and affirmed the judgment of the learned trial judge.

Again, the Appellant is dissatisfied with the judgment of the Court of Appeal. He has accordingly appealed to this Court.

The meat of the case against the appellant and his co-travelers is that on or about 24/9/2012, they conspired with some other persons who are still at large, at various times while armed with offensive weapons, along Vandeikya – Adikpo and Jato – Aka – Katsina – Ala roads, robbed Alhaji Sejir Mohammed Labaran and lieh Basil of their possessions including various sums of money, phones etc. The defence put up by the appellant and his co-accused was a total denial of the respective allegations. After investigation, the matter went for trial.

Notice of appeal in this matter was filed on 15th May, 2018 which contains six grounds of appeal out of which the appellant has distilled three issues for the determination of this appeal.

In the appellant’s brief settled by Edwin O. Okoro, Esq., and filed on 5th July, 2018, the three issues formulated by the

appellant are listed on page 3 of the said brief as follows:
1. Whether the Court below was right to have affirmed that the trial Court was right to have admitted in evidence Exhibits A1 and B1 the extra judicial statements of the respective Appellant and co-accused at the trial-within-trial on the main ground that they did not raise the voluntariness of their statements with their counsel or any other person while in police custody.
2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court that the prosecution had proved the 1st and 3rd heads of charge beyond reasonable doubt against the appellant and co-accused in the circumstances of the case and that there were no contradictions in the evidence of the prosecution witnesses.
3. Whether the Court of Appeal was right to have affirmed that the trial Court was right to have used and relied on the alleged confessional statements (exhibits A1 and B1) while convicting the Appellant and co-accused of conspiracy and armed robbery on the 1st and 3rd heads of charge when the said Exhibits do not have any link at all with 1st and 3rd heads of the charge.

The learned counsel for the Respondent, Eko Ejembi Eko, Esq., distilled two issues for determination. The two issues are as hereunder stated:-
1. Whether the learned Justices of the Court of Appeal, Makurdi Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s extra judicial statements – Exhibits A1 as evidence and treated same as confessional Statement inspite of the fact that same were (sic) retracted by the Appellant.
2. Whether the learned Justices of the Court of Appeal Makurdi Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the Appellant’s conviction for the offences charged having to the totality of evidence the Court.

Bearing in mind the facts of this case, the judgment of the Court below and the grounds of appeal raised in this appeal, I am of the view that the two issues distilled by the learned counsel for the respondent are more apt and illuminating capable of resolving the issues in controversy between the parties. Moreso, the appellant’s issues one and two are related to

the admission and reliance on Exhibits A1, the confessional statement of the appellant. So, basically, the appellant has two issues. Accordingly, I shall determine this appeal based on the two issues as distilled by the respondent.

ISSUE ONE
This issue has to do with the admissibility and reliance on Exhibit A1 – the extra judicial statement, being confession of the appellant by the learned trial Judge as affirmed by the Court below.

It is the submission of the learned counsel for the Appellant that the concurrent findings of the two Courts below on the admissibility of the extra judicial statement of the appellant is grossly and totally perverse in that the main reason why the statement was admitted by the learned trial judge is because there is no evidence that the accused person was denied access to his counsel or relatives to whom he would have complained that his statement was obtained by duress. Secondly, that the prosecution failed to prove that the statement was voluntarily made, relying on Abiodun v The State (2013) 9 NWLR (pt 1358) 150 paragraph F and Section 29(2) (a) and (b) of the Evidence Act, 2011. Again, he submitted that the

prosecution failed to call members of the youth to substantiate beyond reasonable doubt the assertion that the appellant was arrested and beaten by them before handing him to the police.

Furthermore, learned counsel submitted that the Court below failed to appreciate that in their examination in chief and under cross examination PW1A and PW2A did not show to the Court any credible evidence of medical report or treatment of the Appellant and co-accused at the time they were arrested notwithstanding their claim that the injuries were sustained before they were brought to the police.

Learned counsel further submitted that the right time for an accused person to challenge the voluntariness of his statement in law, is at the point where such statement is to be presented for admissibility by the prosecution, relying on Mbang v State (2013) 7 NWLR (pt 1352) at 72 paragraph H.

On the reliance on the confessional statement by trial Court, he submitted that the 3rd head of charge made it clear that the Appellant and co – accused used a snatched Golf car from Alhaji Sajir Mohammed Labaran to knock one Ijeh Basil down before robbing him at gun point.

That the trial Court having dismissed the charge relating to the said Alhaji Sajir Mohammed Labaran for want of proof, will be seen to be approbating and reprobating at the same time by holding that the alleged armed robbery against Alhaji Labaran did not take place and at the same time hold that the appellant and co – accused used the Golf car snatched from Alhaji Labaran to rob Ijeh Basil. He urged Court to resolve both his issues 1 and 3 in favour of the appellant.

In response, the learned counsel the respondent submitted in the main that a Court of law can convict an accused person for the commission of an offence even upon a retracted confessional statement if there exists other independent corroborative evidence to give credence to the retracted confessional statement as was in this case, citing in support the cases of Ejinima v The State (1991) LPELR-1067 (SC) and Bouwor v The State (2016) LPELR – 26054 (SC). He contended that a confessional statement such as Exhibit A1 does not become inadmissible because the accused person retracted it or denied making it voluntarily.

Learned counsel submitted further that Exhibit A1, the confessional

statement of the appellant was admitted after going through a trial-within-trial and that the testimonies of PW1A and PW2A for the purposes of the trial within trial were unshaken, uncontroverted and unchallenged regarding how the extra judicial statement was obtained. Having not been challenged, he submitted that the two Courts below were right to rely on same, relying on the cases of Lanre v State (2018) LPELR – 45156 (SC), Obineche & Ors v Akusobi & Ors (2010) LPELR – 2178 (SC).

Finally, learned counsel submitted that the Court below was very much within the boundaries of the law when it affirmed the decision of the learned trial Judge admitting the extra judicial statement of the appellant in evidence as Exhibit A1 and placing reliance on same as a confessional statement. He urged the Court to resolve this issue against the appellant.

RESOLUTION OF ISSUE ONE
The grouse of the appellant in this issue relates to the reason offered by the learned trial Judge, as affirmed by the Court below at the point of admitting the extra judicial statement of the appellant during a trial within trial. At page 121 of the record or appeal, the

learned trial judge said as follows:-
“The opportunity availed the accused persons as there is no evidence that any of them was ever denied access to counsel or any relative while in custody up to the moment that the respective statements were tendered in Court. There is no evidence that any of them raised any issues either with counsel or any other person on what he claimed to have experienced while in custody, especially on the circumstances in which they may have made the respective written statements… The evidence of the PW1A, who said that he witnessed the process by which the statements were recorded and that they were voluntarily made has not been discredited; I have no reason therefore to disbelieve him on the point. Consequently, the respective objections are each overruled and the written extra-judicial statements of the respective accused persons tendered are hereby admitted and shall be marked as Exhibits A1 (for that of the 1st accused) and Exhibit B1 (for that of the 2nd accused).”

In its judgment, in respect of the above position of the learned trial judge, the Court below expressed the following views in support of same.

On page 203 of the record, the lower Court said:-
“I find it difficult to fault the reasoning of the learned trial judge on this. While it is perfectly correct to say that it is only at the trial that an accused person can properly challenge the police/prosecutor as to the voluntariness vel non of his confessional Statement, such a challenge must not be merely superficial and casual. In the face of credible evidence adduced by the police that the statement was voluntarily given, the accused person must also adduce evidence capable of belief to show that there were circumstances which made the statement not voluntary.”

From a calm reading of the two findings of the two Courts below, it is revealed that the learned trial judge did not admit the statement of the Appellant (Exhibit A1) merely because he failed to raise same with his counsel before coming to Court, but because the evidence led by the prosecution on the voluntariness of the said statement was never discredited. The Court below even went ahead to state clearly that it is only at the trial that an accused person can properly challenge the voluntariness or otherwise of his extra

judicial statement at the police station and I agree entirely with this view.

The issue here is that at the point of tendering the confessional statement of the appellant, he alleged that he signed the said statement after he was tortured. The learned trial judge, in my opinion did the correct thing by holding a trial within trial in order to test the veracity of the said objection. The prosecution called PW1A and PW2A to prove that the statements were voluntarily made. The Appellant testified and denied making the statement voluntarily. The learned trial judge preferred the evidence adduced by the prosecution and held the statement to be a voluntary confessional statement of the appellant. This was affirmed by the Court below.

After a careful consideration of the evidence led by the prosecution at the trial within trial, I am satisfied to hold that the appellant has not shown to this Court why the concurrent findings of the two Courts below on the issue should be disturbed. Exhibit A1 was admitted after going through the rigors of a trial within trial and it must be noted that the testimonies of PW1A and PW2A for the purpose of showing how the

extra judicial statement of the appellant was obtained was unshaken, uncontroverted and unchallenged. The mere ipsi dixit denial by the appellant has not mustered enough strength to shake the concrete evidence adduced by the Respondent. I accept the concurrent findings of the Courts below that Exhibit A1, the confessional statement of the appellant, was voluntarily made.

My Lords, I made this point in Aribigbola Awosika v The State (2018) LPELR- 44351 (SC) pages 63 – 64 paragraphs C – A that an accused person can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. Be that as it my, it is desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession is true. See Uluebeka v State (2000) 7 NWLR (pt 665) 404, Adamu Saliu v The State (2014) 12 NWLR (pt 1420) 65. Let me state clearly that although corroboration is desirable as I have stated above, there is no law which makes it mandatory as an accused person can be convicted solely on his conviction alone where it is found to be direct, positive and unequivocal. See Ubierho v The State (2005) 5 NWLR (pt 919) 644. I conclude this aspect by stating that the concurrent findings of the two Courts below on the admissibility and reliance on

Exhibit A1 to convict the appellant is impeachable. The issue relating to the use of the Golf car to rob Ijeh Basil shall be discussed in the next issue. Thus, issue one is resolved against the Appellant.

ISSUE TWO
The second issue is whether the Court below rightly affirmed the decision of the learned trial judge that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the Appellant’s conviction for the offences charged having regard to the totality of before the Court.

After stating the ingredients of the offences of conspiracy and armed robbery, the learned counsel for the appellant submitted that each offence must be proved beyond reasonable doubt. But after viewing the evidence led at the trial including Exhibit A1, learned counsel submitted that the two Courts below were wrong to rely on Exhibit A1 because it did not relate to the 1st and 3rd heads of charge but the 2nd only which had been dismissed for want of evidence. That Exhibits A1 and B1 never mentioned any incident of robbing PW1. He stressed that the Courts below committed a big blunder when they made reference to the said exhibits to the

effect that the appellant and co – accused admitted plying the road where PW1 was robbed that day.

Learned counsel submitted further that since the learned trial Judge had found the evidence of the prosecution witnesses, except that of PW1 to be hearsay, the evidence of PW1 alone was inadequate to prove the charge against the appellant beyond reasonable doubt. Learned counsel also submitted that failure to call a member of the vigilante group who arrested the Appellant and who handed him to the police is fatal to the prosecution’s case. He urged the Court to resolve this issue in favour of the Appellant.

Responding, the learned counsel for the respondent agreed that the prosecution has the task of proving the case beyond doubt and as to what constitutes reasonable doubt, he referred to the case of Jua v The State (2010) LPELR – 1637 (SC). Learned counsel drew the attention of this Court to the fact that when the appellant and accomplices were apprehended, the items recovered and displayed on the ground included PW1’s blackberry phone, his calculator and record book. Secondly, that the failure of the appellant to cross examine PW1 on his oral testimony

in respect of the recovered items means they had admitted same, relying on Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC), Ighalo v State (2016) LPELR-40840(SC).

Learned counsel also submitted that the testimony of the PW1 corroborated the contents of Exhibit A1 in respect of the use of a Golf car for the robbery on the date in question. He opined that the extra judicial statement of the appellant stated clearly that the appellant participated in all the ingredients of the offence of armed robbery and conspiracy to commit armed robbery which occurred on the 24/09/2012 along Jato – Ala to Katsina – Ala highway. On how to establish conspiracy, learned counsel referred to the case of Bouwor v The State (2016) LPELR – 26054(SC).

In response to the argument that PW1’s evidence alone was not enough to prove the charge against the Appellant and that failure to call one or the youths who apprehended the appellant was fatal to the prosecution’s case, learned counsel submitted that the evidence of a single witness that is direct, cogent and uncontroverted can be relied upon to ground conviction, relying on Chidozie v COP (2018) LPELR-43602(SC).

Finally, learned counsel submitted that the unchallenged and uncontroverted evidence of PW1 corroborates the confessional statement of the Appellant contained in Exhibit A1 and that the trial Court was right to place reliance on same as affirmed by the Court below. He relies on the case of Esseyin v State (2018) LPELR – 44476 (SC). He urged the Court to resolve this issue against the Appellant.

RESOLUTION
The appellants in this issue are contending that the prosecution failed to prove the charge beyond reasonable doubt and as such, the Court below was wrong to agree with the learned trial Judge that the respondent proved this charge beyond reasonable doubt. Fortunately, this Court has severally defined the concept. “proof beyond reasonable doubt” in quite a number of cases. Thus in Jua v The State (2010) LPELR-1637(SC), this Court per Niki Tobi, JSC (of blessed memory) explained the concept as follows:-
“Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not fanciful doubt, it is not an

imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”
(at page 20 paragraphs C – E) see also Nwaturuocha v The State (2011) 6 NWLR (pt 1242) 170, Friday Smart v The State (2016) LPELR – 40827 (SC), Akindipe v The State (2012) 16 NWLR (pt 1325) 94, The State v Onyeukwu (2004) 14 NWLR (pt 813) 340, Ajayi v The State (2013) 9 NWLR (pt 1360) 589, Umoh Ekpo v The State (2018) LPELR – 43843(SC).
The resultant effect of the above postulation is that before a Court can convict for capital offences such as the one at hand, and indeed every other offence, it must ensure that the evidence presented before it is credible, coherent and leaves no one in doubt that the accused person committed the offence. Anything short of this, the prosecution would have failed in its duties.

See Afolalu v The State (2010) 16 NWLR (pt 1220) 584, Emeka v The State (2014) 13 NWLR (pt 1425) 614, Bozin v The State (1985) 2 NWLR (pt 8) 465, Idemudia v The State (1999) 7 NWLR (pt 610) 202. Thus, before a Court can convict an accused person on the offence of armed robbery, the three ingredients must be present. From the records before this Court, it is clear that the learned trial Judge convicted the appellant based on Exhibits A1 and B1 – confessional statements of the appellant and his co- accused respectively and the evidence of PW1. The Court below accepted the conviction in the following words and findings on pages 210 – 211 of the record:-
“There is no doubt that PW1 was attacked on the morning of 24-09-2012 on the Jato – Aka/Katsina-Ala highway and dispossessed at gun point of his properties consisting of large amounts of money, a Black-berry Telephone Handset, a calculator and other items enumerated by him. There is also no doubt that since the robbery took place in broad daylight and the robbers were not masked, PW1 readily and unhesitatingly identified the appellant and 2nd accused as being amongst the persons who attacked and robbed

him on the date in question. In particular, the appellant was identified as the person issuing commands to PW1 at gunpoint while the 2nd accused was the person who drove the Golf car that was used to knock him off the road before the robbery took place. PW1 also described in graphic detail how, after the robbery, the accused persons drove off in the same vehicle towards the direction of Jato-Aka and he followed suit on his motorcycle. Upon arriving the village, he promptly informed the youth of what had just transpired. The youth immediately and proactively gave chase and embarked on a search of the robbers. Eventually, they apprehended the appellant and 2nd accused and the PW1 identified them on the spot as the persons who had robbed him of his possessions at gunpoint that morning … A bag was recovered from them and when it was emptied in presence of the PW1, he saw some of his money, his Blackberry Handset and two of the pistols used by the robbers… In addition, the evidence of the PW1 (the victim and sole eye witness) was both lucid and credible, and he was unshaken during cross-examination. The learned trial Judge was therefore right when he accepted and

acted on it. Also, in Exhibit A1 and B1, the Appellant and 2nd accused gave detailed accounts of their roles in the armed robbery. ”

A major issue raised by the learned counsel for the appellant in this appeal is that Exhibit A1, was not a confessional statement in respect of the 1st and 3rd heads of charge against the appellant. Rather, that it was in respect of the 2nd head of charge which was dismissed against the appellant. He submitted that it was therefore wrong for the two Courts below to agree on the conviction of the appellant based on the said Exhibit A1. On page 135 of the record, the learned trial Judge made the following conclusion in respect of the above complaint that:-
“Exhibits A1 and B1 may not have confessed to the crimes charged but they each admit the fact that the accused persons had all driven in a Golf car while heading towards Jato-Ata on the day that the PW1 mentioned in his account. That admission lends credence to the evidence of the PW1 that he had an encounter with the accused persons who drove in the car at the material time.”

The above findings by the learned trial Judge was further strengthened by the

Court below at page 214 of the record as follows:-
“This finding is in accord with the evidence adduced before the Court. Thus, the fact that count 2 of the charge was dismissed because the victim and owner of the Black Golf 3 Car did not testify in proof of the fact that he was robbed of the car (on the date in question) does not in any way detract from the fact that it a Black Golf car that was used in the robbery against PW1 on the date in question. Whether or not the car was stolen is a different kettle of fish and immaterial to count 3 of the charge in respect of the robbery against the PW1. In other words, the allegation of armed robbery committed against Alhaji Sajiri Mohammed Labaran as alleged in count two of the charge (which was dismissed), was not the issue. The trial Court rightly dismissed count two of the charge because insufficient evidence was adduced in proof of same, the victim having failed to come forward and testify. This, however without more, cannot be used to exclude the fact that a Black Golf car was used by the Appellant and his co-travelers in crime to commit the offence of armed robbery as charged in count three on the date in question.”

It is not in doubt that the two Courts below have explained the matter comprehensively and does not require further elucidation. For the avoidance of doubt, let me state clearly that although the appellant did not state in Exhibit A1 that he robbed PW1, he however stated in the said confessional statement that he used a Black Golf Car to rob along Jato-Aka road on the same date to which the PW1 testified. The PW1 testified that he reported the robbery incident to the youths of the town who mobilized and got the appellant and his co- accused arrested. The appellant, in Exhibit A1 also agree that he was “arrested by the militia of the area.” The PW1 testified that the appellant and his co- accused were handed over to the police by the youths who arrested them. The appellant in Exhibit A1 agree that it was the militia of the area who handed them to the police.

It is not in doubt that the learned trial Judge relied on the evidence of PW1 and Exhibit A1 to convict the Appellant. The lower Court had described the evidence of PW1 as both lucid and credible and that he was not unshaken during cross-examination. The law is trite that the

Court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances of the case. Also that one single credible witness can establish a case beyond reasonable doubt. See Akalezi v The State (1993) 2 NWLR (pt 273) 1, Victor v The State (2013) 12 NWLR (pt 1369) 465, Shina Oketaolegun v The State (2015) LPELR – 24836 (SC), Adelumola v State (1988) 1 NWLR (pt 73) 683.
In the instant case, at the point the appellant and his co- accused were arrested, a bag was recovered from them and when it was emptied in the presence of PW1 he saw some of his money, his Blackberry Handset and two pistols used by the robbers. This damaging evidence was never controverted during the trial. It is so strong against the appellant. It is credible and positive. Without any evidence from Exhibit A1, it is my view that the evidence PW1 was cogent enough to have convicted the appellant. That notwithstanding, the pieces of evidence in Exhibit A1 clearly strengthened the evidence of PW1 and made it more probable. The recovery of the Blackberry Handset belonging to the PW1 from the appellant was in my opinion a master stroke in the evidence against the appellant.

All the arguments as to time, punctured tyre of the golf car, and other minor discrepancies in the evidence of prosecution witnesses are irrelevant, the appellant having been fixed to the scene of crime with the recovery of the stolen items and gun i.e. weapon of the crime from him. I agree with the Court below that the learned trial Judge rightly convicted the Appellant based on the evidence adduced before him. I have no reason to disturb the concurrent findings of the two Courts below on the matter.

In conclusion, I hold that this appeal lacks merit and is accordingly dismissed. The judgment of the Court of Appeal in Suit No CA/MK/125C/2016, is hereby affirmed.
Appeal Dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, John Inyang Okoro, JSC and to underscore the support, I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal by the appellant against the judgment of the Court of Appeal, Makurdi Division or Court below or Lower Court, Coram: Jummai Hannatu Sankey, Onyekachi Aja Otisi and Joseph

Eyo Ekanem JJCA who on the 25th April, 2018 delivered the decision affirming the trial Court’s judgment per Adam O. Onum of the Benue State High Court, Makurdi Division, of 17th October, 2014 convicting the appellant for conspiracy to commit armed robbery, kidnap contrary to Sections 1 (2)(b) and 6 (b) of the Robbery and Firearms (Special Provisions) Act,Cap.515, LFN.

It is in dissatisfaction with the decision of the Court below for which the appellant has approached the Supreme Court in ventilation of his grievance.

The facts leading to this appeal are well set out in the lead judgment and I shall not repeat them save for when the occasion warrants a reference to any part thereof.

On the 13th day of February, 2020 date of hearing, learned counsel for the appellant, Edwin O. Okoro Esq., adopted the brief of argument filed on 5/7/18 in which were distilled three issues for determination which are thus:-
1. Whether the Court below was right to have affirmed that the trial Court was right to have admitted in evidence Exhibits A1 and B1 the extra judicial statements of the respective appellant and co-accused at the trial-within-trial on the main

ground that they did not raise the voluntariness of their statements with their counsel or any other person while in police custody. (Grounds 1 and 5).
2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court that the prosecution had proved the 1st and 3rd heads of charge beyond reasonable doubt against the appellant and co-accused in the circumstances of the case and that there were no contradictions in the evidence of the prosecution witnesses. (Grounds 4 and 6).
3. Whether the Court of Appeal was right to have affirmed that the trial Court was right to have used and relied on the alleged confessional statements (Exhibits A1 and B1) while convicting the appellant and co-accused of conspiracy and armed robbery and the 1st and 3rd heads of charge when the said Exhibits do not have any link at all with 1st and 3rd heads of the charge. (Grounds 2 and 3).

For the respondent, Eko Ejembi Eko, Esq., of counsel adopted the brief of argument filed on 29/3/19 and in it formulated two issues for determination which are as follows:-
1) Whether the learned Justices of the Court of Appeal, Makurdi Division were right to

have affirmed the decision of the learned trial Judge admitting the appellant’s extra judicial statements – Exhibit A1 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the appellant. (Ground 1).
2) Whether the learned Justices of the Court of Appeal, Makurdi Division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the appellant’s conviction for the offences charged having regard to the totality of evidence before the Court. (Grounds 2, 3, 4 and 5).

The second issue of the respondent captures the full question relevant in the determination of the appeal and so I shall utilise it for our purpose in this appeal as a sole issue.
SINGLE ISSUE:
Whether the learned Justices of the Court of Appeal Makurdi Division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the appellant’s conviction for the offences charged having regard to the totality of evidence before the Court.

Learned counsel for the appellant contended that the concurrent findings of the two Lower Courts on the admissibility of the extra-judicial statements of the appellant and co-accused are grossly and totally perverse and can be faulted. He cited the following: Abiodun v State (2013) 9 NWLR (Pt.1358) 138 at 150; Mbang v State (2013) 7 NWLR (Pt.1352) 48 at72.

That the extra-judicial statements were not voluntarily proffered and the police failed to comply with the Judges Rules in our Criminal Justice System. He referred to Oladipupo v State (2013) 1 NWLR (Pt.1334) 79 at 100 – 101.

For the appellant, it was submitted that both Courts below wrongly accepted the evidence of PW1 to sustain the conviction apart from the failure of the prosecution to call evidence of a material and vital witnesses that is the youths who allegedly arrested the appellant and co-accused. He cited Zubairu v State (2015) 16 NWLR (Pt.1486) 504 at 535 etc.

Learned counsel for the respondent stated that the mere denial by the appellant that he did not make the confessional statements voluntarily is not enough to make the said statements inadmissible nor reduce

the weight the trial Court can attach to such evidence. That in this instance, the said extra-judicial statement was admitted as Exhibit A1 after going through a trial-within-trial. He cited Bouwor v State (2016) LPELR – 26054 (SC); Lanre v State (2018) LPELR – 45156 (SC).

That the unchallenged and uncontroverted evidence of PW1 corroborates the confessional statement of the appellant as contained in Exhibit A1 and the trial Court was right in placing reliance on Exhibit A1 in convicting the appellant for the offences charged. He cited Esseyin v State (2018) LPELR – 44476 (SC).

He stated further that the surrounding, inferential and circumstantial evidence available to the trial Court was enough to ground the conviction of the appellant for the offences charged. He cited Esseyin v State (supra).

Having set out in summary the submissions of counsel on either side which are in effect, the appellant seeking a setting aside the decision of the Court below which affirmed the conviction and sentence of the trial Court. The respondent on the other hand insisting that appellant has not set the stage for an interference of the concurrent findings

of fact and conclusion of the two Courts below.
It is to be reiterated that it is not sufficient or enough for an appellant seeking to have concurrent findings of fact of the trial Court and the intermediate Court to allege that the judgments were wrong or faulty. Appellant in such a circumstance has to establish in what way the decision of the appellate intermediate Court that affirmed the decision of the Court of first instance was wrong, perverse or unreasonable and unwarranted regard being had to the available evidence. See Esseyin v State (2018) LPELR – 44476 (SC) per Ejembi Eko JSC.

Going back to the principles guiding the Court particularly the trial Court which is the first port of call at which the testimonies of witnesses are proffered or adduced and the evaluation thereof done by that trial judge who is in the exclusive position of assessing the demeanour of those witnesses. It is thereat firstly that the three elements of the offence of armed robbery as herein charge would be either established or not for the Court to say the offence was committed as charged. Those essential ingredients of the offence are:
(a) There was a robbery or

series of robbery;
(b) That each robbery was an armed robbery; and
(c) That the person accused of the robbery was one of those who took part in the robbery or series of robberies.
It follows that for the prosecution to succeed all those three elements must be established with credible evidence and the proof beyond reasonable doubt. See Oloruntosin Bello v The State (2007) 6 NWLR (Pt.1043) 563 at 588 – 589.

It is trite law and well settled that the guilt of an accused person can be proved by any or more of the following ways:-
(a) The confessional statement of the accused persons;
(b) Circumstantial evidence; or
(c) Evidence of eye-witness of the crime.
I refer to Igabele v State (2006) 6 NWLR (Pt.975) 100 at 130.

Deploying those guides above, the learned trial judge in tackling the evidence of PW1 had stated as follows:-
“I have critically considered the submissions of counsel against the back drop of the evidence, the substance of which I have also recalled in the earlier part of this judgment. I do not need to repeat the details here. Suffice it just for me to say that the PW1 gave a graphic account of

his encounter with those who robbed him and the circumstances of the robbery. It was all in broad day light at about 11:30am. Those who robbed him had first driven a black Golf car to knock him down from the motorcycle that that he was riding on at the time. That after knocking him down they alighted from the vehicle and held something like a locally made pistol at him to demand for his money and other items of property, including his blackberry telephone handset. He succumbed to the threat, apparently in fear of bodily harm to his person and surrendered all that they demanded of him. According to him further, when the accused person left in the same car, he gave chase on his motorcycle. He later made a report to some persons who then chased and arrested the accused persons with the items of property that has just been stolen from him. The items include the blackberry telephone handset that is a part of Exhibit B. There is also the locally made contraption in the form of a pistol that is a part of Exhibit B. Exhibits A1 and B1 may not have confessed to the crimes charged but they each admit the fact that the accused persons had ail driven in Gold car while

heading towards Jato-Aka on the day that the PW1 mentioned in his account. The admission lends credence to the evidence of PW1 that he had an encounter with the accused persons who drove in the car at the material time. The process of cross-examination of the PW1 did not suggest that the accused persons were arrested otherwise than as stated in his evidence. It is therefore not open to them to later set up a different account of how they were arrested as they have tried to do in their respective oral testimonies in Court.”

To get back into the beginning, the Charges framed upon which the appellant and co-accused were arraigned and tried are state hereunder, viz:-
1ST HEAD OF CHARGE:
That you, Bemdoo Mindi, Agber Hueze and Terzungwe Alias Love Fela and one other now at large on or about the 24/9/2012 at Tsemker Village along the Vandeikya-Adikpo high way in Vandeikya Local Government Area within the jurisdiction of this Honourable Court did agree to do illegal acts to wit: rob persons plying the two routes of cash and valuable properties and the said acts were done in pursuance of the same agreement and you thereby committed an offence

punishable under Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap 515 Laws of the Federation of Nigeria, 2010.
2ND HEAD OF CHARGE:
That you, Bemdoo Mindi, Agber Hueze and Terzungwe Atias Love Fela and one other now at large on or about 24/9/2012 at Tsemker Village along the Vandeikya-Adikpo high way in Vabndeikya Local Government Area within the jurisdiction of this Honourable Court did commit Armed Robbery on one Alhaji Sajiri Mohammed Labaran by attacking and injuring him and snatching his black Golf Car 3 valued N550,000.00 only at a case sum of N589,000.00 only, Baban Riga, shoes, sim cards worth N277,000.00 only at gun point and you hereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 515 Laws of the Federation of Nigeria 2010.
3RD HEAD CHARGE:
That you, Bemdoo Mindi, Agber Hueze and Terzungwe Alias Love Feta and one other now at large on or about 24/9/2012 at Jato-Aka, Katsina Ala high way in Kwande Local Government Area within the jurisdiction of this Honourable Court committed armed robbery on Ijeh Basil by knocking him off his motorcycle with a

snatched Golf 3 Car from Alhaji Sajiri Mohammed Labaran and forcefully removed the sum of N510,000 only from him at gun point and you thereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 515 Laws of the Federation of Nigeria, 2010.
The learned trial judge held thus:-
“The PW1 further said that he also reported the incident to Bata who owned the company for which he had made sales. The witness was cross-examined in the course of which he substantially repeated what he had said in his evidence in chief. Bata Irozaan gave evidence as PW2. He was not an eye witness to the commission of the crimes but was only told of the incident by PW1. He confirmed the arrest of the accused persons by the youth of Jato-Aka. He too was cross-examined. The PWs 3 and 4 were not eye witnesses but were the police officers who investigated the case at various stages of it. The PW3 told of what had been relayed to him by the members of the youth group who had arrested the accused persons. He was attached to Adikpo Police Station at the material time.”
See pages 132, lines 27 -34 and 133, lines 1-3 of the record.

In relation to PW5, the trial Court stated thus:-
“The PW5 did not say anything material to either head of the charge. He did not know any of the accused persons. The person he had helped to arrest on suspicion of being connected with the crimes had allegedly escaped from the custody of the chairman of the vigilante group to whom he had handed him.”

Concluding, the learned trial judge dismissed the 2nd Head of Charge thus:-
“I have critically examined the evidence led in the case and I do not see any admissible evidence outside of Exhibits A1 and B1 to show that any robbery was indeed committed against Alhaji Sajir Mohammed Labaran to enable me believe in the truth of what appears to be the confessions. This is more so since the said Alhaji Sajir Labaran has not been called to give evidence. All that the prosecution witnesses have said regarding the commission of that particular offence are mere hearsay and certainly not admissible to establish the truth of the occurrence of the robbery. On this simple note, the second head of the charge fails and it is hereby dismissed.”
The trial Court had found thus:-
“Exhibits A1 and B1 may

not have confessed to crimes charged but they each admit the fact that the accused persons had all driven in a Golf car while heading towards Jato-Aka on the day that the PW1 mentioned in his account. That admission leads credence to the evidence of the PW1 that he had an encounter with the accused persons who drive in the car at the material time.”

The trial Court had no difficulty in convicting the appellant and co-accused of the offences of conspiracy and armed robbery under 1st and 3rd Heads of the charge as follows:-
“From the conclusion that I have reached while considering third head of the charge, I have no doubt in my mind that the accused persons did criminally conspire to rob the PW1, Mr. Ijeh Basil, while armed with a certain hard object in the form of a pistol that was capable of being used as an offensive weapon. I accordingly also find each accused person guilty of the offence of criminal conspiracy to commit armed robbery as charged under the first head of the charge.”

The Court of Appeal on its own part, affirming what the trial Court did stated thus:-
“There is no doubt that PW1 was attacked on the morning of 24/09/2012 on

the Jato-Aka/Katsina Ala highway and dispossessed at gun point of his properties consisting of large amounts of money, a Blackberry Telephone Handset, a calculator and other items enumerated by him. There is no doubt that the robbery took place in the broad daylight and the robbers were not masked, PW1 readily and unhesitatingly identified the appellant and the 2nd accused as being amongst the persons who attacked and robbed him on the date in question. In particular, the appellant was identified as the person issuing commands to the PW1 at gunpoint while the 2nd accused was the person who drove the Gold Car that was used to knock him off the road before the robbery took place. PW1 also described in graphic detail how, after the robbery the accused persons drove off in the same vehicle towards the direction of Jato-Aka and he followed suit on his motorcycle. Upon arriving the village, he promptly informed the youth of what just happened. They youth immediately and proactively gave chase and embarked on a search of the robbers. Eventually, they apprehended the appellant and the 2nd accused, and PW1 identified them on the spot as the persons who had robbed him

of his possessions at gunpoint that morning.”
Going on further, the Court below stated as follows:-
“This findings is in accord with the evidence adduced before the Court. Thus, the fact that count 2 of the charge was dismissed because the victim and owner of the Black Golf 3 Car did not testify in proof of the fact that he was robbed of the Car (on the date in question) does not in any way detract from the fact that it was a Black Golf Car that was used in the robbery against the PW1 on the date in question. Whether or not the car was stolen is a different kettle of fish and immaterial to count 3 of the charge in respect of the robbery against the PW1. In other words, the allegation in count two of the charge (which was dismissed), was not the issue. The trial Court rightly dismissed count two of charge because insufficient evidence was adduced in proof of same, the victim having failed to come forward and testify. This, however without more, cannot be used to exclude the fact that a Black Golf Car was used by the appellant and his co-travelers in crime to commit the offence of armed robbery as charged in count three on the date in question.

In the instant case, the confession of the appellant in Exhibit A1 to the offence of robbery of the Black Golf Car on the Jato-Aka road with the use of pistols on 24/09/2012 was positive and direct. It is this same car which was used in attacking and robbing the PW1 on the date in question. In addition, there are other material pieces of evidence outside this confession which makes Exhibit A1 probable that it is true. In testing the veracity of the Exhibit A1, it is evident that the portion of the statement relating to the fact of armed robbery is true because it is consistent with the evidence of PW1 on the vicious attack on him by knocking him off his motorcycle using the Black Golf 3 Car, threatening him with guns and robbing him of his money and other valuables, facts which have been ascertained.”

The Court below with regard to the confessional statements of the appellant stated thus:-
“The appellant had also contended that the failure of the police officers (PW2A and PW3) to comply with the Judges Rules which provides for taking of the appellant and 2nd accused to a superior officer to confirm the voluntariness or otherwise of the confessional

statements, Exhibits A1 and B1, rendered the statements inadmissible in evidence. This is surprising however in view of the position of the appellant that Exhibits A1 and B1 do not amount to confessions in relation to the robbery against the PW1, but were instead confessional statements in respect of the robbery of Alhaji Sagir Mohammed Labaran. He is therefore approbating and reprobating.”

The attempt by the appellant to impugn the voluntariness of the confessional statement Exhibit A1, saw that document go through the crucible of a trial within trial at which the learned trial judge found that the allegation that the statement was procured involuntarily was not supported by evidence. Apart from contesting the voluntariness of the statement of the appellant had retracted or denied making it. This point of a resiled statement by an accused person is well settled in law as it does not affect the admissibility of the document though the need for some corroborative evidence would be desirable in the use of it to secure a conviction. I place reliance on Ejinima v State (1991) LPELR – 1067 (SC); Bouwor v State (2016) LPELR – 26054 (SC): Lanre v State (2018)

LPELR – 45156 (SC); Obineche & Ors. V Akusobi & Ors. (2010) LPELR – 2178 (SC); Kamila v State (2018) LPELR – 43603 (SC).
Clearly in line with the principles guiding a statement albeit confessional retracted by an accused person as in the instant case, the two Courts below were in the right path in admitting the statement confessional as it was of the appellant as Exhibit 1 and that after it had gone through a mini trial to ascertain that it had been voluntarily made, again with the protest in that regard from the appellant. Nothing was left to chance by the learned trial judge, hence his findings and their affirmation by the Court of Appeal.

In the said Exhibit A1, the appellant had stated that he was in the company of some people who committed alleged robberies on the day in question within the same vicinity and using a black golf 3 car that had been snatched during a robbery on the same day. To quote him precisely is thus:-
“On the 24/09/2012 at about 05:00 hours, me and three others namely (1) Agber Hueza (m) of Mbagwaza, Oshongo Local Government, (2) Terzungwe Surname not known (m) of Jato-Aka, Kwande L.G.A. (3) the third one, his name

is not known but he followed the boy from Jato-Aka, there is a place where the pot hole have spoilt the road between Vandeikya and Kwande so all of us were on the road and then as we saw the head light of one motor vehicle, then we stopped him and he stopped and Terzungwe now collected the key of the motor from him and gave the key to our driver whose name is Agber Hueza, an engineer, then Terzungwe now shot the man on his leg, then Agber Hueza started to drive the motor vehicle with four of us inside heading to Jato-Aka road, thereafter the tyre of the car got flat so we can no longer go with the motor vehicle again so we abandoned the gulf 3…”

The appellant had put up a defence to the effect that the prosecution had not proved the offences of conspiracy to commit armed robbery and armed robbery against him beyond reasonable doubt. The said offences of conspiracy to commit armed robbery and armed robbery are contrary to Sections 6 (b) and 1 (2) (b) of the Robbery and Firearms (special Provisions) Act, Cap 515 LFN.
For the offence of conspiracy to commit armed robbery in order to secure a conviction, the prosecution must prove the following:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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a. That there was an agreement between the accused and others to commit armed robbery;
b. That in furtherance of that agreement, the accused took part in the commission of the armed robbery or series of robberies;
c. That the robbery or each of the robberies was an armed robbery.
In respect of the offence of armed robbery, I had stated earlier that the prosecution has a burden duty to prove beyond reasonable doubt that:
a. That there was a robbery;
b. That the robbers were armed with offensive weapons as at the time of the robbery; and
c. That the accused person participated in the robbery.
SeeThomas v State (2017) LPELR-41735 per Peter-Odili JSC at page 25; Yusuf v State (2008) All FWLR (Pt.405) 1731.

As to what is meant by proof beyond reasonable doubt in criminal trials, this Court through Tobi JSC has given an apt definition in Jua v State (2010) LPELR – 1637 thus:-
“Reasonable doubt which will justify an acquittal is a doubt based on reason rising from evidence or lack of it. It is not fanciful doubt, it is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”

Situating those principles in context to the case in hand where PW1 gave direct, credible and uncontradicted evidence that the appellant was in company of other persons armed with offensive weapons when they robbed him on the 24/09/2014 along the Jato-Aka to Katsina-Ala high way and its immediate envious, when PW1 was knocked off his motorcycle with a black golf vehicle. PW1 had gone on to say he was able to recognize the faces of his assailants as the incident happened around 11:30am and the robbers did not wear masks as they robbed him of some items including money.

In fact, it is best to quote directly the testimony of PW1 thus:-
“On the 24/09/2014, I was loading my trading stocks on my motorcycle from L/aka to go and sell in Jato-Aka. On reaching Jato-Aka, I sold some of my stock at Jato-Aka. I then took my motorcycle return to K/aka. On my way, I saw a car, golf 3 that was black in color. It was parked by the side of the road, it had no registration number. After passing where the car was parked, it started following me. When it came by my side, the driver swerved the steering and the car hit me down. This was about 11:35 am.

Two men came out of the car, each of them had a pistol pointed at me. I was able to see the faces of the men. They requested for the keys of the box in which I had carried my trading stock. I saw the two men because none of them wore anything on his face. The two accused persons in the Court room were the same persons who attacked me. The one by the left, i.e. 1st accused was the one issuing the commands to me while the 2nd accused person was the one that drove the car. They removed all the money in my pocket and also removed the money I had kept in the box. The money in my pocket was N147,750.00. The money in the box was N510,000.00. The money in the box belonged to one of my customers, Mr. Bata whose money I also had. The youth eventually arrested the accused persons on the same day. When the accused persons were arrested, I easily identified the 1st accused person. When the accused persons were arrested and the contents of the bag they had on them poured out on the ground. I saw the money, my phone set, my calculator and the two pistols that the accused persons had used when the contents of the bag were poured out. I made a report to the police after the youth

had arrested the accused person. To the best of my knowledge, the police only recovered one locally made pistol, my phone handset and my sales book in the course of their investigation.”

Indeed, the confessional statement of the appellant, Exhibit 1A fully corroborated the testimonies of the prosecution witnesses particularly that the PW1. Thus the corroboration desired in a statement retracted by the appellant is in place, solidly so.

With respect to the offence of conspiracy to commit an offence and in this instance, the offence of armed robbery is known that the establishment of the offence is by inference deducible from criminal acts of the accused person done in conjunction with others. The conspiracy is inferred from the common commission of the offence by the accused in company of others as done by the appellant in this case. The special nature of the proof of conspiracy is that the elements or ingredients of the offences are embedded in the agreement or plot among the parties usually done in secret hence it is rare of having that agreement for the common purpose established by direct proof and so the route for the proof has remained by

deduction or inference from channels of action of the parties towards the realization of a common purpose or mutual criminal purpose. In this case in hand, the confessional statement of the appellant, Exhibit A1, the pieces of evidence unchallenged including the stolen items that were recovered almost immediately made it easy for the deduction or the inference of the agreement to commit armed robbery and the fall out is that the offence of conspiracy to commit armed robbery beyond reasonable doubt made out. See Bouwor v State (2016) LPELR – 26054 (SC); Njovens & Ors. V The State (1973) 5 SC 17; Haruna & Ors. v The State (1972) All NLR 738 at754.

Indeed, there is no point belabouring when the essential ingredients of the offences charged have been so well established beyond reasonable doubt and it becomes a waste of time to urge the Court to disturb concurrent findings that were made by the two Courts below on very solid ground of law borne out by the record.

In all, the appeal lacks merit and in line with the well articulated lead judgment, I too dismiss the appeal.
I abide by the consequential orders made.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Okoro, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is no merit in the appeal and should be dismissed. I too will dismiss it.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment lust delivered by my learned brother, Okoro, JSC, and I agree with him that this Appeal completely lacks merit.

He dealt squarely and extensively with the two Issues for determination and with nothing useful to add that would make any difference to the outcome, I will simply adopt his reasoning as mine. Thus, I dismiss this Appeal and affirm the Judgment of the Court below, which upheld his conviction by the trial Court.

EJEMBI EKO, J.S.C.: The Appellant and one other were tried and convicted for conspiracy and armed robbery. The Appellant’s appeal to the lower Court was dismissed, and his conviction and sentence were duly affirmed. He has further appealed to this Court. The Appellant has argued this further appeal on three (3) issues which are ipssima verba with the very 3 issues on

which he had unsuccessfully argued his appeal at the lower Court.
Issues for the determination of appeal derive from the grounds of appeal. A good and competent ground of appeal must constitute a complaint against the decision. It is a complaint the Appellant has against the reasoning of the Court below on any issue that forms the basis of the decision. ln the words of Tobi, JSC: by the ground of appeal, the appellant tells the appellate Court that he is not satisfied with the judgment of the trial or lower Court and he spells out clearly the specific area he is not satisfied with: DAGACI OF DERE & ORS. v. DAGACI OF EBWA & ORS. (2006) 7 NWLR (pt. 979) 382. In other words, a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing or the Appellant: EHINLANWO v. OKE & ORS (2008) 16 NWLR (pt. 1113) 357; UGBOAJA v. AKITOYE-SOWEMIMO & ORS. (2008) 16 NWLR (pt. 1113) 278. Without a competent ground of appeal there would be no issue for the determination of any appeal. Technically, there is, in the circumstance, no complaint against the decision.
In this appeal, the Appellant’s

Counsel, without demonstrating succinctly by his grounds of appeal how the lower Court erred in dismissing his appeal argued on the 3 issues, merely re-presented verbatim or substantially verbatim the grounds of appeal and the 3 issues canvassed unsuccessfully at the lower Court. The practice cannot be right. A re-presentation of the same grounds of appeal and the issues for determination on which the lower Court dismissed the appeal thereat does not, in my view, constitute a complaint against the decision of the intermediate Court.

The Appellant’s Counsel, Mr. Okoro, seems, in his bloated ego that he possesses omniscience, to have a rude and unethical alibi for this novelty. In paragraph 4.08 of the Appellant’s Brief, Counsel contumaciously argued that the reasoning of the trial Court was ridiculously affirmed by the Court of Appeal. He further argued that the “the lower Courts failed to appreciate the law that the burden of proving the voluntariness of extra judicial statement of a suspect lies on the prosecution squarely which must be proved beyond reasonable doubt.”
Mr. Okoro of counsel for the Appellant has crossed the line.

31(1) of the Rules of Professional Conduct for Legal Practitioners, 2007 provides: A lawyer shall always treat the Court with respect, dignity and honour. It is unethical, professionally, for a lawyer or Counsel to use the occasion or an opportunity of an appeal to insult, denigrate or deride the integrity or intellectual ability or capacity of the Judges/Justices of the Courts below.

ln any case, the words of the judex on any issue are final subject to review, if the decision is one by law, appealable. The judex may be right or wrong. His decision nonetheless binds the advocate and his client. In the words of King Henry VIII: the teacher’s knowledge is measured by the pupil’s lack of it. By Section 168(1) of the Evidence Act presumption of regularity attends every decision or judicial act shown to have been substantially done in a regular manner. Accordingly, until set aside, such decisions remain valid.

The law is settled that the apex Court, on concurrent findings of fact, will not lightly intervene and interfere or disturb such concurrent findings of fact: OMETA v. NUMA (1934) 11 NLR 18; SERBEH v. KARIKARI (1939) 5 WA34; CA ALLI v. ALHADI (1952) 13

WACA 320. It is only upon the appellant showing some special circumstances that the apex Court interferes with concurrent findings of fact.
Exhibit A1, the extra judicial statement of the Appellant, was admitted in evidence after the rigours of trial-within-trial. It was found by the trial Court to have been made voluntarily. The statement also corroborates some salient aspects of the PW1’s evidence.
In Paragraph 5.06 of the Appellant’s Brief, the Appellant, through his Counsel, invites this Court to re-evaluate the third time, the evidence at the trial Court and then come to the conclusion that the lower Court was wrong in affirming the conviction of the Appellant. The contention of the Appellant’s Counsel in paragraphs 5.08-5.09 of the Appellant’s Brief is at best the contention the Appellant should have made at the trial Court.

There is a presumption that the decision of the trial Court on facts is right. That presumption must be displaced by the appellant seeking to upset the decision on facts. See WILLIAMS v. JOHNSON (1937) 2 WACA 253; Section 168(1) Evidence Act. Displacing this presumption of regularity is not by attacking and

ridiculing the Judges of the two Courts below. In advocacy, the appellant’s Counsel speaks only on one side of the case. He is like King James I who (admitting to Lord Coke, his Attorney-General, that he was not adequately equipped to be a Judge) stated that he –
– could get on very well hearing one side only, but when both sides have been heard, upon my word, I know not which side is right.

In the instant case, the two Courts below, upon hearing both sides, knew that the prosecution was right. They appreciated correctly the facts and law as they related to the case and gave lucid reasons for their decisions. Like my learned brother, JOHN INYANG OKORO, JSC, whose decision in this appeal I hereby endorse and adopt, I find no substance in this appeal.

The appeal is hereby dismissed in its entirety. The decision of the lower Court, affirming the conviction of, and the sentence imposed on the Appellant by the trial Court is hereby affirmed.
Appeal dismissed.

Appearances: