MOHAMMED v. STATE (2020)

MOHAMMED v. STATE

(2020) LCN/4952(SC)

In The Supreme Court

On Friday, December 18, 2020

SC.293/2015

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun 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

ABU MOHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF OF CONSPIRACY IN CRIMINAL TRIALS

In a charge of conspiracy to commit armed robbery and armed robbery, under Section 97 of the Penal Code and Section 1(2) of the Robbery and FireArms (Special Provisions) Act, Cap R 11 Laws of the Federation of Nigeria 2004 as with all criminal offences, the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt by proving the three ingredients of the offence of armed robbery.
In Nwaturuocha v State (2011) 6 NWLR (Pt.1242) p.170, I explained proof beyond reasonable doubt. I said that: “Proof beyond reasonable doubt” does not mean proof beyond all doubts or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence; a degree of compulsion which is consistent with a high degree of probability.
See Section 135 (1) of the Evidence Act 2011.
Eke v State (2011) 1-2 SC (Pt. II) p.219.
Ochiba v State (2011) 12 SC (Pt. IV) p.79.
Chukwuma v F.R.N. 2011 5SC (Pt. II) p.84.
For the Prosecution to be said to have proved the case beyond reasonable doubt, it must prove all the essential elements of the offence in the charge, by producing vital material evidence and witnesses to testify during proceedings,
The prosecution must prove:
(a) that there was a robbery;
(b) that the Appellant participated in the robbery;
(c) that during the robbery the Appellant was armed with offensive weapon or was in company of a person who was so armed.
Armed Robbery is stealing with violence. PER RHODES-VIVOUR, J.S.C.

WHETHER OR NOT A RETRACTED CONFESSIONAL STATEMENT CAN BE ADMITTED IN EVIDENCE

A retracted confessional statement should be admitted in evidence and it is the duty of the trial judge to determine the weight to be attached to it. Great weight would be attached to the confessional statement if the trial judge is satisfied after testing the truth of the statement by determining:
(a) Is there anything outside it to show it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true so far as can be tested?
(d) Did the accused have an opportunity to commit the Offence?
(e) Is the accused’s confession possible?
(f) Is the confession consistent with other facts which have been ascertained and proved? See
Queen v Obiasi (1964) 2 NSCC p.412
Onochie & Ors v. The Republic (1966) NMLR p.307. PER RHODES-VIVOUR, J.S.C.

INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

To prove the offence of armed robbery against the appellant the prosecution must prove:
(i) That there was a robbery or series of robberies.
(ii) That the accused was the robber or one of the robbers.
(iii) That the accused was or one of the robbers was armed.
See OLAYINKA V. STATE (2007) LPELR – 2580 (SC), PEDRO V. STATE (2018) LPELR – 44460 (SC) and STATE V. GBAHABO & ORS (2019) LPELR
The three ingredients of the offence must be jointly established and proved beyond reasonable doubt. See AFOLALU V. THE STATE (2010) LPELR 197 (SC) and BOZIN V. STATE (1985) LPELR 799 (SC). It is equally settled that the prosecution may prove the guilt of an accused person by his confessional statement, circumstantial evidence or by the evidence of eye witnesses of the crime. See IGABELE V. STATE (2006) 6 NWLR (PT 975) 100 and SUNDAY UDOR V. STATE (2014) LPELR 23064 (SC). PER MOHAMMED, JS.C.

WHETHER OR NOT THE COURT CAN CONVICT ON THE EVIDENCE OF A SINGLE WITNESS

The Court can convict on a clear and credible evidence of a single witness. See AFOLALU V. THE STATE (2010) 16 NWLR (PT 1220) 584 at 613,ABDU MOHAMMED V. THE STATE (1991) LPELR 1901 (SC), OBIDIKE V. STATE (2014) LPELR – 2590 (SC) and ONAFOWOKAN V. THE STATE (1987) LPELR-2666 (SC). PER MOHAMMED, JS.C.

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ilorin Division of the Court of Appeal, delivered on 19th December, 2014 in which the death sentence on the Appellant by an Ilorin High Court was affirmed.

The facts are these:
On 28th December, 2011 the Appellant and one Legi Mohammed, while armed with cutlasses and Fulani sticks robbed PW3, his younger brother, Fatai and PW4. They were robbed while returning from Banni Market in Kaiama Local Government Area of Kwara State, where they had gone to sell yams. They rode a motorcycle.

The Appellant and Legi Mohammed emerged from the bush, knocked them off the motorcycle, inflicted fatal machette cuts on their victims. PW3’s younger brother, Fatai fought back but was killed. PW3 was seriously injured with matchette cuts on his head and his lower arm was cut off. PW4 had near fatal matchette cuts on his body. One of his fingers was almost cut off. It was left dangling.

PW3 and PW4 recognised the Appellant and Legi Mohammed before they ran into the bush and made their way to the village. On arriving in the

village, they reported the gruesome incident to PW7, the head of the vigilante team. The Appellant and Legi Mohammed were subsequently apprehended and taken to the Police Station where they confessed to having committed the crime. The arrest of the Appellant, who was the 1st accused person was easy. PW7 the head of the Vigilante team, after being told of the armed robbery, led other vigilantes to the scene to search for the armed robbers. He told the Mogaji of the town that if anyone saw anyone with matchette cuts, he should be informed, since one of the victims also claimed to have struck one of the armed robbers with a matchette. All hospitals, clinics, and chemists were duly informed. The brutal armed robbery occurred at about 6p.m. and at about 10p.m someone showed up at a chemist with matchette cuts. That someone was the first accused person, the Appellant, Abu Mohammed. The Appellant’s statement and his specimen thumbprint impression was admitted as exhibit P4.

At the trial, the prosecution (the Respondent) called seven witnesses and closed its case.
The Appellant gave evidence in his defence. He did not call any witness. His

co-accused also gave evidence. A total of seven documents and items, were admitted in evidence as exhibits. Interestingly, one of the exhibits was the severed arm of PW3, marked exhibit P7.

Convicting the Appellant and his co-accused to death for the offence of conspiracy and armed robbery, the learned trial judge had this to say:
“… PW3 and 4 saw it all and suffered seriously from it. Their evidence and that of PW7 is more than enough to ground a conviction.”

Concluding, his lordship said:
“The two accused persons are guilty of the offence of Conspiracy and armed robbery, contrary to Section 97 of the Penal Code and Section 1(2) of the Robbery and Fire Arms (Special Provisions) Act…
The prosecutions has thus discharged the burden of proving the case against the two accused persons beyond reasonable doubt as enjoined by Section 139 (1) of the Evidence Act.
The two accused persons namely Abu Mohammed and Legi Mohammed are hereby convicted as charged.”

Dissatisfied with the judgment, the Appellant filed an appeal. It was heard by the Court of Appeal, Ilorin Division. That Court affirmed the

judgment of the trial Court in these words.
“The conclusion of the learned trial Judge is unassailable. I am at one with same.

The two other judges that heard the appeal agreed with the leading judgment.

Still dissatisfied, the Appellant filed an appeal to the top Court. Briefs were filed and exchanged. Learned counsel for the Appellant Mr. A. Tunde-Olowu, filed an Appellant’s amended brief on 27 November 2017 which was deemed duly filed and served on 16 May 2018.

Learned counsel for the Respondent, Mr. J.A. Mumini the Kwara State Director of Public Prosecutions filed an amended Respondent’s brief on 21 October 2019 but deemed duly filed and served on 24 September 2020.

Both Counsel were of the view that only a sole issue would resolve this appeal. The issue reads:
Whether the Court of Appeal rightly held that the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt.

At the hearing of the appeal on 24 September 2020, learned counsel for the Appellant and Respondent adopted their briefs and urged this Court to pronounce as per their briefs.

Learned counsel for the Appellant observed that whilst it is clear on the fact that there was an attack on PW3 and PW4, it remains doubtful as to who the attackers were and on what occasion, whether it was in the course of a robbery incident or not. He observed that the evidence of PW4 is unworthy of belief because he stated that he had escaped from the scene of the attack into the bush as soon as the attackers made for his two other brothers, contending that it is difficult to rationalize how he knew that the victim that died was matcheted with cutlass on the head and all over his body and died.

He submitted that in the absence of an identification parade, it was wrong for the Court of Appeal to have affirmed the conviction of the Appellant. Reliance was placed on Ikemson v State (1989) NWLR (Pt.110) p.455.
Omotola v State 2009 ALL FWLR Pt.464 p.1490.

Learned counsel for the Appellant observed that the Appellant denied making any statement and did not thumb print it, contending that the procedure adopted by the Judge to resolve the issue as to whether the Appellant’s thumb print is actually the one on the statement was wrong.

He submitted that it is not possible for the trial Court to have verified the Appellant’s thumb print and ascertain its genuineness by physical comparison, contending that this can only be determined in a forensic laboratory by a finger print expert.

Concluding, he submitted that the Court of Appeal was wrong to uphold the conviction of the Appellant based on his retracted confessional statement, exhibit P3. He urged this Court to interfere with the concurrent findings of fact of the two Courts below and allow the Appellant’s appeal.

Learned counsel for the Respondent observed that the Court of Appeal in affirming the judgment of the trial Court found that the evidence of PW3, PW4 and exhibits P3, P5, established that the Appellant and his colleague Legi Mohammad conspired and did go to Banni/Lele Road to rob these witnesses and their deceased brother.

As regards exhibit P3, the Appellant’s retracted confessional statement which he denied making or thumb printing, he argued that the main function of an expert is to assist the Court, and that a Court is not bound to accept the evidence of an expert.

He further submitted that

comparing the thumb print of the Appellant on P3 with the thumb print made by the Appellant in exhibit P4 was very much in order, as the judge was only trying to find out if exhibit P3 was made by the Appellant. Reliance was placed on B. Iden v State (1994) 8 NWLR (Pt.365) p.719
COP v. Ogechukwu (1974) ESCLR p.147.

Concluding, he urged this Court not to disturb the concurrent findings of the two Courts below and not to depart from the earlier decision of this Court in Appeal No. SC/294/15 Legi Mohammed v State delivered on 11 January, 2019.
He urged this Court to resolve the sole issue in favour of the Respondent.

“Proof beyond reasonable doubt” does not mean proof beyond all doubts or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence; a degree of compulsion which is consistent with a high degree of probability.
See Section 135 (1) of the Evidence Act 2011.
Eke v State (2011) 1-2 SC (Pt. II) p.219.
Ochiba v State (2011) 12 SC (Pt. IV) p.79.
Chukwuma v F.R.N. 2011 5SC (Pt. II) p.84.
For the Prosecution to be said to have proved the case beyond reasonable doubt, it must prove all the essential elements of the offence in the charge, by producing vital material evidence and witnesses to testify during proceedings,
The prosecution must prove:
(a) that there was a robbery;
(b) that the Appellant participated in the robbery;
(c) that during the robbery the Appellant was armed with offensive weapon or was in company of a person who was so armed.
Armed Robbery is stealing with violence.

Now, what is the evidence for, and against the Appellant?
1. A retracted confessional Statement was

admitted in evidence as exhibit. The Appellant claimed that he did not thumb print the statement. He did not make the statement.
2. Eye witness evidence.

I take the 2nd first.
The Court of Appeal said (see page 131 of the Record of Appeal.)
“…The evidence of the PW3, PW4 and PW7 with or without exhibits P3 and P5 are sufficient to ground the conviction of the Appellant.”

Earlier, the trial Court examined evidence as it was expected to and found that armed robbery took place and the Appellant was one of the armed robbers when it said:
“..The matrix of evidence of the prosecution and even that of defence particularly the 1st accused showed that robbery took place and the accused persons were armed. This fact was specifically highlighted by the evidence of the victims PW3 and PW4.
PW3 said:
“These two accused persons standing before the Court suddenly appeared from the bush and started to matchet our body (sic) with cutlasses. They collected our sales proceeds.”
PW4 said:
“My brother who was driving the motorcycle was scared and we fell from the

motorcycle.”

PW3 and PW4 are eyewitnesses, while P3 is the Appellant’s retracted confessional statement.

The best evidence that an accused person committed an offence is his confessional statement which would state clearly that he committed the crime for which he is charged. This is conclusive evidence that the accused person committed the offence, provided that the evidence was not beaten out of him. That is to say the confessional statement must have been voluntary made. “I did it” concludes the case.
The next best evidence is the testimony of an eyewitness, provided it is true. “I saw you committing the offence.”
It is the duty of the trial judge to assess the credibility of the witnesses.
There is no rule of law or practice which says that a Court should hesitate in convicting upon the evidence of an eye witness in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given.

I agree with the findings of the Court of Appeal which affirmed the judgment of the trial Court when it said:
“… It is without doubt that the evidence of the PW3 and PW4

and exhibits P3 and P5 established that the Appellant and his colleague Legi Mohammed conspired and did go to Banni/Lele Road to rob these witnesses and their deceased brother Fatai.”

After examining evidence led I am satisfied with the judgment of the Court of Appeal which affirmed the judgment of the trial Court, that PW3 and PW4 are indeed eyewitness. They gave similar evidence of how the Appellant and his co-accused, Legi Mohammed attacked them, inflicted near fatal matchette cuts on them and killed their brother, Fatai, ending up stealing from them all the money from the sale of their Yams.

It is abundantly clear that the respondent (prosecution) proved to the satisfaction of both Courts below that there was a robbery on 26 December 2011, at about 6 p.m along Banni/Lele Road. The Appellant participated in the robbery.

During the robbery the Appellant was armed, and in the company of Legi Mohammed, his co-accused who was also armed. This is clear evidence that the Appellant participated in armed robbery on the day in question.

Learned counsel for the Appellant in his sole issue was only

concerned about whether the offence of armed robbery against the Appellant was proved beyond reasonable doubt. He said nothing about the charge of conspiracy. I say nothing also, but conspiracy is easily inferred.

I now turn to exhibit P3. The Appellant’s retracted confessional statement.
Exhibit P3 is the Appellant’s retracted confessional statement. The well laid down practice is that when a confessional statement is challenged on the ground that the accused person did not make it, whether he made it or not is a matter to be decided at the end of the trial by the trial judge. Objection by counsel does not affect the admissibility of the statement. The statement should be admitted in evidence. The issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See Queen v, Igwe (1960) 5 F.S.C. p.55, Ikpasa v Bendel State (1981) 12 NSCC p.300.
It is only when the accused person says the statement was not voluntary, that a trial within trial is conducted as the issue of voluntariness of the statement arises for consideration and must be resolved.

After examining the above carefully, it becomes clear that the evidence of PW3, PW4 and PW7 was very damaging against the Appellant. It is obvious that exhibit P3, the retracted confessional statement of the Appellant is indeed true. Both Courts below came to the correct conclusion that the evidence led by the prosecution established the guilt of the Appellant beyond reasonable doubt.

The conviction of the Appellant is justified by the evidence.
I must observe that the evidence of PW3, PW4 and PW7, even without exhibit P3 is more than enough to the Appellant beyond reasonable doubt.

Concurrent findings of the lower Courts will not be disturbed by the Supreme Court except there has been exceptional circumstances such as there has been miscarriage of justice or violation of some principle of law or procedure, or the findings are not perverse or unsupportable from the evidence before the Court. See
Ugwanyi v F.R.N (2012) 3 SC (Pt. III) p.169
R-Ben Kay Nig Ltd v Cadbury Nig PLC (2012) 3 SC (Pt. III) p. 169.

Learned counsel for the Appellant was unable to proffer any good reason why these concurrent findings should be disturbed. In the circumstances those findings represent what happened when PW3 and PW4 were robbed by the Appellant and Legi Mohammed.

I must explain for the benefit of trial Judges and lawyers the correct procedure, when an accused person says that he did not make any statement nor thumb print any statement. Learned counsel sought to tender the

retracted statements of both accused persons. This is what transpired:
“State Counsel – I seek to tender the two accused persons statements in evidence.
Accused Counsel – The accused said they did not make any statement not thumb printed any statement.
State Counsel – I pray the Court to admit the statement.
Court – The accused persons are not questioning the voluntariness of the statement but merely denying making any. The making of the statement is a matter of fact to be established. Each of the two accused will thumb print a sheet of paper each with a view to comparing same with their alleged thumb print impressions on the statement. The accused persons having thumb printed a plain sheet with their thumb printed impressions on the sheets are the same with the thumb prints on the statement said to be made by the accused. The statements and the thumb printed sheet will be admitted in evidence and they are admitted and marked as follows”.
The statements were admitted and marked accordingly.
As quite rightly pointed out by the learned trial Judge, that the making of

the statement is a matter of fact, but sadly the judge followed the wrong procedure and practice, by ordering the Appellant to thumb print on a plain sheet of paper. The trial judge ought to have admitted the statement as the issue of whether the Appellant made it or not is a matter to be decided at the conclusion of trial by the trial judge. Objection by counsel does not affect the admissibility of the statement, so the statement should be admitted in evidence, since the issue of voluntariness of the statement does not arise for consideration.
The trial judge decides whether the Appellant made the statement, or not, at the conclusion of trial by testing the truth of the confession. This is done by considering and answering the questions, (a) to (f) earlier listed in this judgment.
At the end of the exercise if the confession is found to be doubtful, no weight would be attached to it, but if, as in this case the confession is found to be true, the issue of making the statement by the Appellant and affixing his thumb impression on it is resolved as true, and the statement becomes cogent and compelling evidence that the Court can rely on.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Appeal No. SC/294/2015- Legi Mohammed v State.
This Appeal was decided by this Court on 11 January 2019. The Appellant, Legi Mohammed was the co-accused of the Appellant in this Appeal. The facts are identical. As with this Appeal there were no redeeming features.
In the end there is no merit in this Appeal.
The Appeal is dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: My lord OLABODE RHODES-VIVOUR JSC had obliged me a preview of his lead judgment delivered in this appeal. I agree entirely with him that this appeal lacks merit and it be dismissed.

I rely on the summary of the facts that brought about the appeal captured in the lead judgment to dwell on a few points raised by the appeal by way of emphasis.

The appellant’s conviction and sentence for conspiracy and armed robbery by the Kwara State High Court, the trial Court, was affirmed by the Court of Appeal sitting at Ilorin, the lower Court, in the latter’s judgment delivered on 19th December 2014. In appellant’s brief of argument the lone issue distilled as arising for the determination of the appeal reads:
“Whether the Court of Appeal rightly held that the

prosecution proved the offence of armed robbery against the appellant beyond reasonable doubt.”

It is equally settled that the prosecution may prove the guilt of an accused person by his confessional statement, circumstantial evidence or by the evidence of eye witnesses of the crime. See IGABELE V. STATE (2006) 6 NWLR (PT 975) 100 and SUNDAY UDOR V. STATE (2014) LPELR 23064 (SC).

The Court can convict on a clear and credible evidence of a single witness. See AFOLALU V. THE STATE (2010) 16 NWLR (PT 1220) 584 at 613,

ABDU MOHAMMED V. THE STATE (1991) LPELR 1901 (SC), OBIDIKE V. STATE (2014) LPELR – 2590 (SC) and ONAFOWOKAN V. THE STATE (1987) LPELR-2666 (SC).

Now, appellant’s contention is that having retracted his confessional statement the evidence of the witness the prosecution relied upon in proof of his guilt is not safe enough to sustain his conviction.
The respondent, rightly in my view, contends otherwise. The fact that the appellant has resiled from his confession neither makes the confession, if proved to be his direct and positive admission of the offence he is charged with and freely given, inadmissible nor unreliable. The two Courts, furthermore, need not resort to the confession if evidence, even of a single witness that is of high probative value is available.
In the case at hand, outside exhibit P3, appellant’s direct and positive confession, the evidence of at least PW3 and PW4 has been accepted by both Courts below as credible and establishing the fact that appellant had indeed conspired with others and while armed robbed his victims. The principle is that with their inference from the evidence outside Exhibit P3, wherein the appellant voluntarily

admitted conspiring with his co-accused in robbing PW3, PW4 and their late brother, learned respondent counsel’s reliance on B. IDEN V. STATE (1994) 8 NWLR (PT 365) 719 and COP V. OGECHUKWU (1974) ECSLR 147 in support of their contention that the two Courts have acted within the bounds of the precedents established by this Court in defining when to rely on appellant’s retracted confession is manifestly apposite.

The concurrent findings have not been shown to be perverse. The appeal must and does, therefore fail. For the foregoing and more so the further reasons contained in the lead judgment I hereby dismiss the appeal.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, OLABODE RHODES-VIVOUR, JSC, just delivered. The reasoning and conclusion therein reflect my views in this appeal.

Learned counsel for the appellant made heavy weather of the reliance by the learned trial Judge on Exhibit P3, his confessional statement, to convict him, as affirmed by the Court below. He was particularly aggrieved with the procedure adopted by His Lordship of comparing his thumb print taken in open

Court with the thumb print on Exhibit P3 and drawing conclusions therefrom. My learned brother, in the lead judgment has illuminating explained the correct procedure to be adopted by the Court where an accused person denies making a statement. It is simply admitted into evidence and the Court will consider it along with other evidence adduced at the trial to determine whether or not the accused person made it. See State Vs Salawu (2011) 18 NWLR (Pt. 1279) 883 @ 905 G-N; Dawa vs The State (1980) NSCC 334 @ 335; Ikpasa vs A.G. Bendel State (1981) 9 SC 7 @ 28; Sanmi vs The State (2019) LPELR- 47418 (SC) @ 18-19 B-D, 29-30 D-B.

Not being a fingerprint expert, the Court has no authority to undertake the comparison of thumb impressions. It must however be noted that no miscarriage of justice has been shown to have occurred that would warrant the setting aside of the decision on this ground because the learned trial Judge based his findings on the totality of the evidence before him, even outside of Exhibit P3.

It has been held by this Court on many occasions that a confessional statement, if found to be voluntarily made, positive and unequivocal, is

sufficient to ground a conviction. A confession that comes straight from the horse’s mouth, as it were, is the best evidence of what transpired and the accused person’s role in it. See: Timothy vs F.R.N. (2012) 6 Sc (Pt. 111) 159; Edamine vs The State (1996) 3 NWLR (Pt. 438) 530; Adio vs The State (1986) 2NWLR (Pt.24) 581 @ 593 – 594 H-A; Ogu vs C.O.P. (2018) 8 NWLR (Pt. 1620) 134.

Not only was the learned trial Judge satisfied that the appellant made Exhibit P3, he was also satisfied that PWs 3 and 4, who were eye witnesses, as well as victims of the offence, were credible witnesses. Their testimony withstood the rigours of cross-examination. The evidence of PW7 was also crucial to the findings, which were affirmed by the lower Court.

In this appeal, the appellant has not shown that the concurrent findings are perverse or that they have occasioned a miscarriage of justice. I am in full agreement with my learned brother, OLABODE RHODES-VIVOURS, JSC that this appeal is devoid of merit. The concurrent findings shall not be disturbed. The appeal fails and is hereby dismissed, The judgment of the Court of Appeal Ilorin Division

delivered on 19/12/2014, affirming the judgment of the High Court of Kwara State delivered on 13/11/2013 per H.A. Saleeman, J. convicting and sentencing the appellant to death, is affirmed.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Rhodes-Vivour, JSC, and I agree with his reasoning and conclusions therein, which represents my views. The long and short of it is that the Appellant failed to provide this Court with good reasons to interfere with findings of fact arrived at by the two lower Courts; the High Court of Kwara State and Court of Appeal. The end result is that this Appeal lacks merit and it is therefore dismissed.

EJEMBI EKO J.S.C.: This appeal, in substance, is a challenge to the concurrent findings of fact on which the conviction and sentence of the appellant predicated. The sole issue should be: whether the Court of Appeal rightly upheld the trial Court’s findings that prosecution proved the offence of armed robbery against the appellant beyond reasonable doubt?

The appeal was however argued on three sub-heeds of this sole issue; namely:

whether the lower Court was right in affirming the trial Court’s decision that it verified the appellant’s thumbprint on Exhibit P3 and ascertained its genuiness by its physical inspection.
ii. whether the appellant’s conviction could be based on Exhibit P5 (the confession of the co-accused) which he did not adopt?
iii. whether on the evidence of PW.3, PW.4 and PW.7 the guilt of the appellant was established beyond reasonable doubt to warrant his conviction?

I will and do hereby adopt the summary of the facts ably done in the judgment just delivered by my learned brother, OLABODE RHODES-VIVOUR, JSC.

I agree the learned trial Judge, not being an expert in thumbprint analysis, was not in any good stead to compare thumbprints and verify that they belong to the appellant. Not being also a witness the learned trial Judge whose Court shall be seen to be independent and impartial — on the principle of nemo judex in causa sua, was enjoined not to be a witness for either the defence or the prosecutor: Sections 17(2)(e) and 36(1) of the Constitution. In the course of the proceedings the learned trial Judge must, throughout, presume the

innocence of the accused person (Section 36(5) Constitution) and must only convict him of the alleged offence upon proof beyond reasonable doubt of his guilt or involvement in the alleged offence: Sections 131 & 135 of the Evidence Act, 2011. In the circumstance of these constitutional/statutory injunctions, the learned trial Judge in the instant case could not play Sherlock Holmes and engage himself to forensically analyse, examine and/or compare thumbprints on Exhibit P3, allegedly recorded by the PW.5, viz-a-viz the appellant’s thumbprint which he had, himself, caused the appellant to place on another piece of paper. The learned trial Judge, not being a detective himself, was wrong to have openly sided with the prosecution in order to have Exhibit P3, a confessional statement, implicate the appellant. He had abused his role, as an impartial judex, in this regard. In either the Code of Conduct for Judicial Officers, or the Code of Conduct for Public Officers (particularly paragraph 9 of Part III of the Third Schedule to the Constitution), an arbitrary act prejudicial to the rights of any other person is reprehensible. The lower Court should

not have condoned and/or ratified the capricious act of the learned trial Judge conducting his own forensic examination of the purported thumbprint on Exhibit P3 viz-a-viz the appellant’s thumbprint on a piece of paper.

From GWONTO v. THE STATE (1983) 1 SCNLR 142 at 152 153; ONAJOBI v. OLANIPEKUN (1985) 4 SC (pt. 2) 156 at 163; OSAFILE & ANOR. v. ODI & ANOR. (1990) LPELR – 2783 (SC); JUDE EZEOKE & ORS. v. MOSES NWAGO & ANOR (1988) 1 NWLR (pt. 72) 616 at 626; OJE & ANOR. v. BABALOLA & ORS (1991) LPELR – 2368 (SC); MOBIL PRODUCING (NIG.) UNLTD v. JOHNSON & ORS. (2018) LPELR – 44359 (SC); etc the fossilized principle is that: not every error/mistake in the decision appealed will result in the decision being set aside. An error that does not substantially occasion miscarriage of justice to the appellant will not ground the setting aside of the judgment appealed: MOBIL PRODUCING (NIG) UNLTD v. JOHNSON (supra).

At page 131 of the Record the learned trial Judge, in his judgment, was categorical that with the evidence of PW.3, PW.4 and PW. 7; with or without Exhibit P3 and P5, there are sufficient evidence to ground the conviction

of the appellant. In other words, Exhibits P3 and P5 are not too material for the proof of the guilt of the appellant beyond reasonable doubt. This statement of fact was not attacked in this appeal. It subsists between the parties, and particularly against the appellant.

The only dispute over or attending Exhibit P3 is purely non est factum. That is: whether it was in fact made by the appellant as recorded by the PW.5. It was not whether it was oppressively extracted from the appellant. The PW.5 through whom Exhibit P3 was recorded under caution and thereafter thumb printed by the appellant testified undiscredited that it was voluntarily made by the appellant. Upon the plea of non est factum Exhibit P3 is not inadmissible in law. It merely raises issue of the weight to be attached to it. PW.5 was not cross-examined, nor discredited. The credibility of the PW.5 and Exhibit P3 therefore remains inviolate. Exhibit P3, like Exhibit P5, is confessional. Both can sustain the conviction of the appellant.

The next question then is — whether the evidence of PW.3, PW.4 and PW.7 proved the guilt of the appellant beyond reasonable doubt? The primary duty of

ascribing probative value to the evidence at the trial, upon proper evaluation of the totality of the evidence, devolves exclusively on the trial Court that had the opportunity of hearing and watching the witnesses testify. The appellate Court, it is trite, will not usurp that function.

At pages 63 — 69 and 69 — 70 of the Record, the trial Court undertook proper evaluation of the evidence before it accredited the prosecution’s evidence and disbelieved the defence evidence. The lower Court had no difficulty affirming the findings of fact.

The belated alibi raised by the appellant was dismissed by the lower Court. That specific finding of fact has not been challenged. So also the finding that Exhibit P7 (the severed amputated arm) belonged to the PW.7.

The armed robbery the appellant was charged and convicted of is not an intricate offence. It is simply stealing while armed or in a company of any person armed with weapon. Robbery is an aggravated stealing or theft. To prove armed robbery, punishable under Section 1 of the Robbery and Firearms (Special Provisions) Act, the prosecution needs only to establish—

stealing or theft of chattel by the accused
b. the stealing or theft was done with violence or threat of violence to the victim
c. the accused participated in the violent theft and
d. at the material time he was himself armed with weapon, or he was in the company of some other person so armed.
Section 11 of the Act defines the words: offensive weapon, robbery and steal thus:
“offensive weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.
“Robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retain.
“steal” means to take or convert to one’s use or the use of any other person anything other than

immovable property, with any of the following intents —
(a) an intent permanently to deprive the owner of the thing of it;
(b) an intent permanent to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question. Whether by the person entitled to such right or by some other person for his benefit;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform.
(e) an intent to deal with thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion; (f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to owner.

The totality of the evidence produced in this case by the respondent, the prosecution, has proved the foregoing beyond reasonable

doubt. The appellant has not been able to establish the contrary satisfactorily.

Having no cause also to disturb the concurrent findings of fact by the two Courts below; I hereby endorse and adopt the judgment just delivered in this appeal by my learned brother, OLABODE RHODES-VIVOUR, JSC. The appeal lacking in substance is hereby dismissed.
Appeal dismissed.

Appearances:

A. Tunde-Olowu, Esq., with him, K. Mba, Esq. For Appellant(s)

A. S. Jawaando, Esq., A.G., Kwara State, with him, J. A. Mumini, Esq. DPP, Kwara State and B. L. Abdulsalam, Esq., SSC For Respondent(s)