OBIOMA v. STATE (2020)

OBIOMA v. STATE

(2020)LCN/15410(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 05, 2020

CA/AK/254C/2013

RATIO

CONFESSIONAL STATEMENT: WHETHER A RETRACTION OF A CONFESSIONAL STATEMENT BY AN ACCUSED PERSON WILL NOT RENDER IT INADMISSIBLE.

The law is well settled beyond any equivocation that, the mere retraction of a confessional statement by an accused person will not render it inadmissible. The retraction may only affect the weight to be attached to the confession, that is, where the accused denies making it at the earliest opportunity. The law is further trite that confession alone is sufficient to support conviction even without corroboration, so long as the Court is satisfied of the truth of the confession.
Very recently in the case of: Agu v. State (2017) LPELR – 41664 (SC) the Apex Court per Mohammad, J.S.C (as he then was, now CJN) restated the trite legal position as follows:

WORDS AND PHRASES: PROOF BEYOND REASONABLE DOUBT

As stated hereinbefore, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Rather, as long settled by the Apex Court and followed by this Court, 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 the cases of: (1) Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) p. 170; (2) Agu v. State (2017) LPELR – 41664 (SC) and (3) Galadima v. State (2017) LPELR – 43469 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CRIMINAL LAW: EVIDENCE: WHETHER THE PROSECUTION MUST TENDER THE WEAPON USED IN A ROBBERY IN ORDER TO ESTABLISH THE GUILT OF THE ACCUSED PERSON

The law is also settled that, it is not a legal requirement for the prosecution to tender in evidence the weapon used in a robbery in order to establish the guilt of the accused person. See the cases of: (1) Olayinka v. The State (2007) All FWLR (Pt. 373) p. 163 at pgs. 173-174, (2) Okudo v. State (2011) 3 NWLR (Pt. 1234) p. 209; (3) People of Lagos State v. Umaru (2014) LPELR-22466 (SC); (4) Eze v. State (2018) LPELR-43715 (SC) and (5) Ajayi v. State (2011) LPELR-4682 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

The law is trite that it is the primary duty of the trial Court, not that of the Court of Appeal, to evaluate evidence and indeed the assessment of credibility of a witness is the prerogative of the trial Court. For it is the trial Court who had the opportunity of hearing the witness tell his story by way of narration or in answer to questions put to him by counsel, and of observing his demeanour and the manner in which he gives his evidence.
See the cases of: (1) William v. State (1975) 9-11 SC p. 87; (2) Garba v. State (1997) 3 NWLR (Pt. 492) p. 144; (3) Kwajaffa & Ors. v. B. O. N. Ltd. (2004) 13 NWLR (Pt. 889) p. 146 and (4) Sani v. State (2017) LPELR-43475 (SC). In sum and from the above elucidations, it is my firm view and I hold that the offence of conspiracy was established beyond reasonable doubt by the Respondent at the trial of the Appellant. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CRIMINAL LAW: FACTS TO BE PROVEN TO GROUND A CONVICTION FOR THE OFFENCES OF BOTH CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY

Hence, in order to ground a conviction for the offences of both conspiracy to commit armed robbery and armed robbery, the prosecution must prove, beyond reasonable doubt, the following ingredients:
(i) That there was a robbery or series of robberies;
(ii) That the robberies were armed robberies or each robbery was an armed robbery and
(iii) That the accused was the robber or one of those who took part in the armed robbery or series of robberies.
See amongst an army of judicial authorities, the cases of: (1) Bozin v. The State (1985) 2 NWLR (Pt. 8) p. 465; (2) Bakare v. The State (1987) 1 NWLR (Pt. 52) p. 579; (3) Bello v. The State (2007) 10 NWLR (Pt. 1043) p. 564; (4) The State v. Salawu (2011) 8 NWLR (Pt. 1279) p. 580; (5) Shofolahan v. The State (2013) 49 WRN p. 172 and (6) Kekong v. State (2017) LPELR-42343 (SC).

The pieces of evidence which need to be before the Court in order to establish the offences of conspiracy and armed robbery just like any criminal offence can be classified into three viz: (i) direct evidence of an eye witness; (ii) circumstantial evidence and (iii) confessional statement of an accused person. See the cases of: (1) Onyenye v. State (2012) 15 NWLR (Pt. 1324) p. 586; (2) Okiemute v. State (2016) LPELR-40639 (SC); (3) Essien v. State (2017) LPELR-42762 (SC) and (4) Ekpo v. State (2018) LPELR-43843 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CRIMINAL LAW: FACTS TO BE PROVEN TO SUSTAIN A CHARGE OF ARMED ROBBERY

To sustain a charge of armed robbery, the prosecution must establish the following three ingredients:

(a) That there was a robbery or series of robberies;
(b) That the robberies were armed robberies and
(c) That the accused persons were or some of the people who committed the armed robbery.
Reliance was placed on the cases of: (1) Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 and (2) Aruna v. The State (1990) 9-10 SC 87.

The duty of the prosecution in criminal cases is to prove the guilt of an accused beyond reasonable doubt, and the law is clear that the guilt of an accused may be proved by:
i. Confessional Statement, or
ii. Circumstantial evidence, or
iii. Direct evidence, that is, evidence of an eye witness. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

VALENTINE OBIOMA APPELANT(S)

And

THE STATE RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ondo State holden at Akure Judicial Division (hereinafter referred to as “the trial Court”) delivered on the 6th day of August, 2013 per D. I. Kolawole, J. in Charge No. AK/8C/2012.

At the trial Court, the Appellant, as the accused person, was arraigned on a two – count charge of conspiracy with some persons at large to commit armed robbery and armed robbery contrary to and punishable under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004, respectively. Sequel to the Appellant’s plea of not guilty, the case proceeded to trial. During the trial, the Respondent, (as the prosecution), in its bid to prove the charge against the Appellant called three witnesses and tendered two documents in evidence. On his part and in defence of the charge against him, the Appellant gave evidence but he did not either tender any document in evidence or call any additional witness.

At the close of trial, the trial Court was persuaded by the Respondent’s case, it therefore convicted the Appellant as charged and per the enrolment of its judgment sentenced him to death by hanging. The Appellant being dissatisfied with the decision of the trial Court, lodged this appeal against it to the Court vide the Amended Notice of Appeal dated and filed on the 3rd of July, 2017 but deemed properly filed on the 16th of January, 2018 and solicited for:
“1. An order quashing the conviction of the Appellant by the lower Court.
2. An order of this Court discharging and acquitting the Appellant for the offences charged.
3. In the alternative, an order reducing the sentence against the Appellant from death.”

For ease of reference and good understanding, the five grounds of appeal contained in the notice of appeal are hereunder set out, minus their particulars, as follows:
“GROUND ONE
The learned trial Judge erred in law when he convicted the Appellant for armed robbery when there is no credible evidence of arm used in the robbery and which error has occasioned a miscarriage of justice.
GROUND TWO
The trial Court erred when it convicted the Appellant for the offence of conspiracy when he was charged alone and there is no credible evidence against him with any other conspirator and which error is perverse and has occasioned a miscarriage of justice.
GROUND THREE
The lower Court erred in law when it convicted the Appellant for the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(a) and 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria 2004 respectively based on his confessional statement when the credibility of the purported confessional statement relied upon is in doubt.
GROUND FOUR
The learned trial Judge erred in law when he did not resolve the doubt in the prosecution’s case created by the uncontroverted evidence of the Appellant in his favour.
GROUND FIVE
The decision of the trial Court is unreasonable and cannot be supported having regards to the weight of evidence.”

In due obedience to the relevant provisions of the Rules of this Court, learned counsel for the respective parties filed and exchanged the respective parties’ briefs of argument in substantiation of their opposing stances in the appeal. The Appellant’s counsel, Mr. Akin Akintoye II of the law firm of D. Akin Akintoye & Co., settled the Appellant’s Brief of Argument dated the 26th of February, 2018 and filed on the 2nd of March, 2018. The four issues crafted for determination in the brief read thus:
“i. Whether the learned trial Judge was right in convicting the Appellant based mainly on his retracted confessional statement. (Ground 3).
ii. Whether there is sufficient evidence of the use of arm necessary to justify the Appellant’s conviction and sentence of armed robbery and conspiracy to commit armed robbery. (Ground 1).
iii. Whether the offence of conspiracy to commit armed robbery was established against the Appellant. (Ground 2).
iv. Consequent upon the Appellant’s uncontroverted oral testimony vis a viz the lacunae in the Prosecution’s case, can it be said that the learned trial Judge rightly evaluated the evidence before him when he convicted the Appellant for the offence of armed robbery and conspiracy. (Grounds 4 and 5).”

Mrs. G. A. Olowoporoku, Director of Public Prosecutions of Ondo State represented the Respondent and settled the Respondent’s Brief of Argument dated and filed on the 21st of May, 2018 but deemed properly filed on the 7th of November, 2018. The sole issue donated for the determination of the appeal in the said brief reads as follows:
“Whether or not from the totality of evidence before it, the trial Court rightly held that the Prosecution proved the case of Conspiracy and Armed Robbery against the Appellant beyond reasonable doubt?”

In response to the Respondent’s brief, the Appellant’s counsel further submitted an Appellant’s Reply Brief, dated and filed on the 14th of November, 2018.

At the hearing of this appeal on the 13th of July, 2020, the Appellant’s counsel, Mr. Akin Akintoye II identified and adopted the two briefs of the Appellant and relied on the submissions contained therein in urging upon this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

The Respondent’s counsel was absent from this Court at the said hearing of the appeal despite service of hearing notice on him, but since the Respondent’s brief of argument had been properly filed, same was therefore deemed duly adopted pursuant to the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

I have examined the two sets of issues redacted by the parties’ counsel for the determination of the appeal. I consider the sole issue framed by the Respondent’s counsel concise and apposite for the resolution of the Appellant’s grouse about the judgment of the trial Court under review. I will therefore adopt the sole issue in the determination of the appeal.

SOLE ISSUE
“Whether or not from the totality of evidence before it, the trial Court rightly held that the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt?”

THE SUMMARY OF THE SUBMISSIONS OF APPELLANT’S COUNSEL
The learned counsel opined that the trial Court did not exercise due caution in convicting the Appellant for the offences charged based mainly on his extra judicial statement. For it is trite that though the Court can convict only on the extrajudicial confessional statement of an accused person, credible evidence outside the confessional statement is necessary to ground a conviction on a denied or retracted confessional statement.

Hence, in the case at hand, when the Appellant retracted his confessional statement, the trial Court was under an obligation to look for evidence which in particular material corroborates the confessional statement before convicting on it. Reference was made to the cases of: (1) Ogudo v. The State (2011) 12 S.C.N.J. 1 at 16; (2) Galadima v. State (2012) 52 NSCQR 543; (3) NSOFOR v. State (2004) 20 NSCQR 89 and (4) Okabichi v. The State (1975) 3 S.C. 96. According to Counsel, the corroborative evidence relied upon by the Court to convict the Appellant was not credible but merely a fabrication to nail down the Appellant to the commission of the offences for which he stood trial. There was nothing outside the Appellant’s confessional statement to show that it was true. In fact, all the adduced evidence show that the Appellant was merely linked with the commission of the offences on mere suspicion. The Respondent called three witnesses in an attempt to prove the guilt of the Appellant. PW1 and PW2 were present at the scene of the alleged robbery and claimed that they were robbed of valuables. The witnesses of the Respondent gave contradictory evidence in the narration of what transpired on the day the alleged crime was perpetrated. PW1 suggested that the robbers were more than two, while PW2 stated that they were just two. PW1 gave evidence-in chief that a double barrel shot gun was used in the robbery, while PW3 claimed in his evidence-in-chief that the gun transferred to him alongside the case file was a ‘locally made short pistol’. The trial Court ought to have resolved the contradiction in the prosecution’s case in favour of the Appellant. Although the Appellant denied committing the offences, the reasonable inference to be drawn is that the gun referred to was not in existence and if indeed the Appellant committed the offence, it was robbery simpliciter and not armed robbery. On this stance, reliance was placed on the case of: Ononuju v. State (2013) 6 S.C.N.J. 458 at 484. The charge against the Appellant therefore ought to be reduced by this Court from armed robbery to robbery simpliciter, what is more, the prosecution did not tender the arm that was alleged to have been used in the robbery. The trial Court failed to believe the uncontroverted evidence of the Appellant and wrongly shifted the burden of proof on the Appellant. In this wise, reference was made to the cases of: (1) Chukwu v. The State (2012) 12 S.C.N.J. 208 at 223; (2) Ikaria v. The State (2012) 12 S.C.N.J. 325 at 341 and (3) The State v. Isiaka (2013) 5 S.C.N.J. 586.

Further on the quality of the investigation of the case, the Appellant’s counsel argued that the mere recording of the purported confessional statement of the Appellant by PW3 cannot be said to be proper investigation. PW3 did not give evidence of what led to the arrest of the Appellant and the findings of the Police when the scene of crime was visited. It can not therefore be said that the PW3 conducted proper investigation, he could not have known how the Appellant was arrested and his evidence before the trial Court was basically hearsay. It is trite law that hearsay evidence is inadmissible. He referred to the provisions of Sections 37 and 38 of the Evidence Act, 2011, as amended and also the case of: Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280 at 323.

It was also contended for the Appellant that, the alleged confessional statement of the Appellant was not corroborated as wrongly held by the trial Court. The evidence of PW1 and PW2 is not sufficient corroboration to link the Appellant with the commission of the offences when juxtaposed with the unchallenged evidence of the Appellant that he was elsewhere at the time the crime was allegedly committed. The Appellant cannot be said to have had the opportunity to commit the offences. Hence, the trial Judge erred in law when he held that the Appellant is not a credible witness, as his evidence was not challenged under cross-examination. The trial Court merely relied on the purported character of the Appellant as stated in Exhibit A to discredit the Appellant. It is instructive to note that the Appellant neither gave evidence of his good character nor was his bad character in issue. He relied on this legal position on the provisions of Section 82 of the Evidence Act.

In the opinion of Counsel, the prosecution equally failed to establish beyond reasonable doubt the alleged offences of conspiracy to commit armed robbery and armed robbery against the Appellant. For the prosecution to establish the offence of armed robbery, the following essential elements are required to be proved:
(a) That there was in fact a robbery;
(b) That the robbery was an armed robbery and
(c) That the accused person was one of the armed robbers.
Reference was made to the cases of: (1) Agboola v. The State (2013) 5 S.C.N. J. 683, (2) Ikaria v. The State (Supra) and (3) Chukwuma v. FRN (2011) 5 S. C. N. J. 40 at 55. The law is trite that all the said elements must be proved to such a degree that there would be no question or stone left untouched. In the present case, the gun and two live cartridges purportedly recovered from the Appellant were not tendered in evidence. By Section 167(d) of the Evidence Act, this is tantamount to withholding of evidence. Although it may be unnecessary to tender the arm used to secure a conviction for armed robbery, the same cannot be apposite in this case because issues were joined on the use of arms. There are also material contradictions on the make and type of the alleged arm used which suggests that the whole story on the arm used was made up. It is trite that the decision of a Court of law must flow from the evidence presented before the Court alongside relevant laws. On this stance, reference was made to the case of: AGIP v. AGIP (2010) 1 S.C.N.J. 1 at 49. Thus in the circumstances of the present case, the prosecution cannot be said to have discharged the onus on it of proof beyond reasonable doubt that the robbery was an armed robbery.

It was also contended that the prosecution failed to prove the charge of conspiracy to commit armed robbery against the Appellant. To prove conspiracy, the prosecution must prove the following:
i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
iii. Specifically that each of the accused persons individually participated in the conspiracy.
Reference was made to Section 6(b) of Robbery and Firearms (Special Provisions) Act, Black’s Law Dictionary, 8th edition, 2004 at page 933 and the case of:

Yakubu v. State (2014) 8 N.W.L.R. (Pt. 1408) 111 at 123, Paras. F-H.

The major ingredient of the offence of conspiracy is the agreement to commit an unlawful act or to do a lawful act by unlawful means. The prosecution did not establish that there was an agreement between the Appellant and another or more persons to commit the offence of armed robbery. The Appellant gave uncontroverted evidence that it was private security men operating in the area where PW1 and PW2 were living who brought the Appellant to them based on mere suspicion and speculation. The Appellant was charged to Court alone, with no other person. The charge against the Appellant did not refer to or mention the name of any conspirator. The Appellant could not have conspired with himself. It is trite that where one person was alleged to have committed an offence with another or others at large, the charge must specifically state the details of the alleged other person(s) and that they are at large, particularly in an offence of conspiracy.

Conclusively, Counsel proposed that aside from the purported extrajudicial confessional statement of the Appellant, there is nothing more in the evidence placed before the trial Court by the Respondent to establish the ingredients of conspiracy between the Appellant and any other person whatsoever. The purported extrajudicial confessional statement of the Appellant which lacks any material corroboration whatsoever, is not enough to nail down the Appellant for the offence of conspiracy. The totality of the evidence of PW1 and PW2 is unbelievable and the trial Judge was in error to have placed reliance on same in convicting the Appellant. For in the absence of the evidence of PW1 and PW2, the prosecution’s case was bound to crumble. Counsel urged this Court to allow the appeal, set aside the judgment of the trial Court, quash the Appellant’s conviction and sentence; and order the discharge and acquittal of the Appellant accordingly.

In the alternative, counsel impliedly urged this Court to find the Appellant guilty of the offence of robbery simpliciter, thereby reducing his sentence of death accordingly.

THE SUMMARY OF THE SUBMISSIONS OF RESPONDENT’S COUNSEL
The trite law was reiterated by the counsel that, conspiracy may not always be proved by direct evidence, as it is generally a matter of inference deduced from certain criminal acts and conduct of the parties accused, carried out in pursuance of an apparent criminal purpose common between them. The essence of the offence of conspiracy is the consensus “ad idem” of the co-conspirators to commit a crime even though, they had not assembled at a particular time to hatch the intention to execute the unlawful purpose. Reference was made on this position to the cases of: (1) Shodiya v. State (1994) 3 NWLR (Pt. 230) 457 and (2) Erim v. The State (1994) 6 S.C.J 104 at 116-117. That further to the foregoing, a person is equally guilty of conspiracy if he joined the original conspirators at any stage after the formation of the conspiracy. Reference was also made to the cases of: (1) Bayo & Ors. v. I.G.P (1971) N.M.L.R 184 (2) Patrick Njovens & Ors v. The State (1973) NNLR 76 at 95 and (3) The Queen v. Anthony Enahoro (1965) NMLR 265. Thus, Evidence admissible against one conspirator is also admissible against the others.

In the present case according to Counsel, the prosecution adduced cogent evidence to prove beyond reasonable doubt and the trial Court rightly held that the charge of conspiracy was made out against the Appellant. The unchallenged evidence adduced before the trial Court and which is that the, PW1 Femi Abiola testified that sometime on 15th of June, 2011 at about 2:00 am, some people forced his house door open, entered his room and the Appellant and another at gun point robbed him and his wife of the sum of Fifteen Thousand Naira. The Appellant’s partner was alleged to have fondled with his wife’s sister who protested and then his wife became enraged, raised an alarm which alerted their neighbours thus making the Appellant’s partner to run away while the Appellant was grabbed and apprehended along with his gun and two live bullets.

PW2 Akinleye Aarinola PW1’s wife also testified that the Appellant was the person who, on the night in question with his partner, stood at the door of her room, robbed her of the sum of Ten Thousand Naira and a wrist watch.

The said wrist watch was later recovered from the Appellant by the Police and released to her. That the Appellant’s partner was troubling her little sister and that she then charged him to leave the girl alone. She and her younger siblings raised an alarm which made the Appellant’s partner to run away. The Appellant was about running away also when her husband grabbed him and held on to him until other people in her neighbourhood came to their aid and subdued the Appellant.

PW3 Sergeant Micheal Isichei also testified that the Appellant was arrested at the crime scene. During the investigation, the Appellant volunteered a confessional statement to him under caution. The Appellant signed while he counter-signed as the recorder of the statement. The statement was tendered and admitted in evidence at trial as Exhibit A after a trial-within trial. That he and his colleagues Police Investigators tried in vain to apprehend Kabiru whom the Appellant claimed was his partner in the crime for which the Appellant was eventually charged.

On the offence of armed robbery, counsel proposed that, from the evidence before the trial Court, the only conclusion deducible is that the trial Court rightly convicted the Appellant for the offence of armed robbery. To sustain a charge of armed robbery, the prosecution must establish the following three ingredients:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant matter, there abound both direct and circumstantial evidence in addition to a confessional statement showing that the Appellant committed the offence of armed robbery. To prove the first ingredient of armed robbery, that is, that there was a robbery, all the witnesses of the prosecution confirmed and it is not in doubt that there was a robbery incident perpetrated on PW1 and PW2 at Odopetu Street, Akure on the 15th day of June 2011.

PW3 in his evidence further confirmed that during the investigation, the Appellant made a confessional statement, Exhibit A to him. The Appellant in his confessional statement clearly stated that on the 15th June, 2011, he and another person robbed one man at Odopetu at about 2:00 am. That they forced the house kitchen door open with an iron rod, entered PW1’s room, demanded for and robbed both PW1 and PW2 of that money and other possessions at gun point. He handed the money over to his said partner named simply as Kabiru. The confession confirms and corroborates the evidence of PW1 and PW2 that they were robbed on the said date at Odopetu area of Akure.

Faulting the contention of the Appellant that the evidence of PW1 and PW2 were fraught with contradictions and at best a concoction, sufficient to create doubt which ought to have been resolved in favour of the Appellant by the trial Court, Counsel argued that such contention is based on an erroneous premise that is baseless in law and manifestly unsustainable. That although contradiction in its ordinary sense connotes absence of agreement between statements of facts in a given situation, in law, a contradiction is regarded material when a piece of evidence affirms the opposite of what the other evidence states and not when there is just a minor discrepancy which is attributable to the astuteness and capacity of a witness for observing meticulous details. In this regard, reference was made to the cases of: (1) Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455 and (2) Okere v. The State (2001) 2 NWLR (Pt. 697) 397. In the present case, there is no material contradiction between the evidence of PW1 and PW2 as to the number of the robbers that invaded their house.
PW1 and PW2 narrated that two persons were involved in the robbery operation.

On the second and third ingredients of the offence, that is, that the robbery was armed robbery and Appellant was among those who committed the robbery, the evidence of the prosecution witnesses are united and firm in this regard. The evidence of PW1, PW2 and PW3 are united in proving beyond reasonable doubt that the Appellant and his partner were armed with a short gun during the robbery operation. Under Section 11 of the Robbery and Firearms (Special Provisions) Act (supra) a short gun is a firearm. Although PW1 gave evidence that a double barrel shot gun was used in the robbery attack, PW3 on his part stated that a locally made short pistol and two live cartridges were recovered from the Appellant. There is no material contradiction between the said evidence of PW1 and PW3. It is obvious that PW1 is a novice who may not be aware of the actual type of gun he saw with the Appellant. Whereas PW3 is a professional Police Officer who will know and give the appropriate description of the gun recovered by him from the Appellant.

The alleged contradiction is therefore peripheral and does not affect the substance of the case, so as to exculpate the Appellant from criminal responsibility.

On the contention of the Appellant that the prosecution failed to tender in evidence at the trial Court the weapon recovered from the Appellant, the extant position of the law is that, mere failure to tender a weapon of crime is not fatal to the case of the prosecution. Reference was made to the cases of: (1) Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561; (2) Victor v. The State (2013) 12 NWLR (Pt. 1369) 465; (3) Fatai Olayinka v. The State (2007) ALL FWLR (Pt. 373) 163 at 174-179 and (4) Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182.

Hence, failure to tender the weapon does not undermine the potency of the Respondent’s case which is hinged on both the direct evidence of the victims and eye witnesses of the crime as well as Exhibit A, the confession of the Appellant. It was therefore a misconception that the trial Court convicted the Appellant mainly on his retracted confessional statement, as the trial Court considered the confessional statement of the Appellant along with the evidence of PW1, PW2 and PW3 in establishing the guilt of the Appellant.

However, the law is equally trite that an accused person can be convicted on his confessional statement alone, so long, as in the instant case, there is evidence outside the confession to show that it was true. Exhibit A was corroborated and tested by the evidence of PW1, PW2 and PW3. It was evident that the Appellant had the opportunity of committing the armed robbery as available evidence showed that he was armed and in the company of another man during the operation.

What is more, the law is settled that where an extra-judicial statement has been shown to have been made voluntarily and same is positive, unequivocal and amounts to an admission of guilt, regardless of the fact that the maker resiled therefrom altogether, an appellate Court will affirm a conviction of an Appellant based on it. He relied on the cases of: (1) Nwachukwu v. The State (2007) All NWLR (Pt. 390) 1380 at 1409- 1410 paras. H-P and (2) Eghoghonome v. State (1993) SCNJ 1. He further referred to Section 251(1) of the Evidence Act, 2011 that there was other evidence to sustain the charge outside Exhibit A. He relied further on the cases of: (1) Abadom v. The State (1997) 9 NWLR (Pt. 479) 1 at 19, paras. F-G and (2) Emeka v. The State (2001) 14 NWLR (Pt. 734) 666 at 680.

It was further projected for the Respondent that, although the duty of the prosecution is to prove the guilt of the accused person beyond reasonable doubt, in cases where the accused proffers fact(s) why some evidence pertinent to the prosecution’s case should not be admitted due to some irregularity known to him, such fact(s) being within the knowledge of the accused, the burden shifts to him to prove those fact(s). This is because whosoever asserts a fact must prove the existence or non-existence of the fact.

Counsel further argued that, the law is trite that when an offence has been committed and the offender is being hotly pursued and in full view of the victim, the issue of his identification can be conclusively settled by the victim who engaged in the pursuit as in the instant case. In this wise reference was made to the cases of: (1) Ugwumba v. The State (1993) 5 NWLR (Pt. 296) 660 at 671 and (2) Patrick Njovens & Ors. v. The State (1973) 5 SC 17 at 65. PW1 and PW2 had the opportunity to see the Appellant very well as he was even arrested right in their house. Indeed in the present case, the defence of alibi or mistaken identity was only raised at the trial by the Appellant. The prosecution would not have had time to investigate the alleged alibi, as the defence of alibi was deemed not properly raised by the Appellant. It is settled law that where a defence of alibi is properly raised with detailed particulars, it is the duty of the prosecution to disprove the alibi by calling evidence. It follows therefore that the defence of alibi must be raised early by an accused person to enable the prosecution investigate it and call evidence, if necessary, in rebuttal. On this legal position, reference was made to the cases of: (1) Adio v. The State (1986) 2 NSCC 815 and (2) Adedeji v. The State (1971) 1 All NLR 75.

The Respondent’s counsel was positive that the conclusion of the trial Court is neither perverse nor has it occasioned any miscarriage of justice. Findings of facts resulting from ascription of probative value to evidence presented by parties are squarely within the exclusive competence of trial Courts who saw and heard the witnesses who testified. Hence, this Court will not interfere with the trial Court’s findings of facts except the decision is perverse and lead to miscarriage of justice. On this stance, reference was made to the cases of: (1) Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 22; (2) Igago v. The State (1999) 6 NWLR (Pt. 608) 568 and (3) Bashaya v. The State (1998) 5 NWLR (Pt. 550) 351. In the instant case, although the Appellant has alleged that the trial Court failed to properly evaluate evidence, the Appellant has failed to show which admissible pieces of evidence the trial Court rejected or inadmissible evidence it relied upon and the extent, if at all, to which such misdirection in law has resulted in a miscarriage of justice to him. In this wise reliance was placed on the case of: Akinfe v. U.B.A. Plc. (2007) 10 NWLR (Pt. 1041) 185.
The Respondent’s counsel conclusively urged upon this Court to dismiss the appeal of the Appellant and affirm the decision of the trial Court.

RESOLUTION OF THE SOLE ISSUE
Although slenderly adverted to at the start of this judgment, the brief background facts of this matter, from the perspective of the Respondent who was the prosecution at the trial Court are that, in the early hours of the 15th of June, 2011, the Appellant, in company with another still at large, while armed with a gun and other dangerous weapons broke into the family home of Mr. Femi Abiola and Mrs. Aarinola Akinleye at No. 38, Odopetu Street, Akure, Ondo State. That during the home invasion, the sum of fifteen thousand naira, a telephone hand set and wrist watch belonging to the couple were stolen from them at gun-point. In the process of fondling with another lady in the house, Mrs. Akinleye raised an alarm which attracted some neighbours to their house. With the help of the neighbours, the Appellant was arrested and handed over to the Police, although the Appellant’s partner escaped. The stolen cash was said to have been passed on to the Appellant’s partner by the Appellant. At the time of the arrest, Mrs. Akinleye’s wrist watch and her husband’s telephone hand set were recovered from the Appellant’s trouser pocket and later released to her by the Police. A locally made short pistol gun was also recovered from the Appellant when he was arrested. During the investigation of the case, the Appellant volunteered a confessional statement of his role in the crime. The Appellant was charged, to the trial Court at the conclusion of Police investigation into the case, for the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004.

At the trial of the case, the Appellant retracted his alleged confessional statement on the ground that he did not make it voluntarily. The statement was nonetheless admitted in evidence as an exhibit after the conduct of a trial-within-trial.

Further at the trial, in the bid to establish the offences the Appellant was charged with, the Respondent fielded three witnesses and tendered two documentary evidence, one of which is the Appellant’s said confessional statement as an exhibits. In his own defence, the Appellant gave evidence but did not call any other witness and did not tender any document in evidence.

Under the adversorial criminal legal system of the country Nigeria, an accused person, in the shoes of the Appellant herein, is presumed innocent until proved guilty by a Court of competent jurisdiction. The presumption of innocence therefore places a burden on the prosecution to prove an offence charged beyond reasonable doubt in accordance with the provision of Section 138 of the Evidence Act, 2011. In the process, the prosecution has to prove all the ingredients of the offence charged, by providing vital evidence of materials and witnesses at the proceedings.

Although the standard of proof required to ground a conviction for the offences of conspiracy and armed robbery is proof beyond reasonable doubt, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, it simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. On the other hand, where on the totality of the evidence adduced, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof with which the law clothed it, thereby entitling the accused person to the benefit of the doubt and resulting in his discharge and acquittal.

The first of the contentions of the Appellant’s counsel in the instant appeal is that the offence of conspiracy was not established by the Respondent against the Appellant at the trial Court and that the trial Court therefore erred in convicting the Appellant for the offence of conspiracy. In order to prove a charge of conspiracy, the prosecution must establish the element of an agreement, express or implied, to do something which is unlawful or to do something which is lawful by unlawful means.

However, as conspiracy is usually hatched in secrecy, the offence is difficult to prove. Conspiracy is therefore more often inferred from the facts and evidence led by the prosecution, there must thence be an overt act from which to infer conspiracy. Circumstantial evidence is thus often used to point to the fact that the conspirators or confederates had agreed on the plan to commit the crime. The gist of the offence of conspiracy is thus the meeting of the mind of the conspirators. The Supreme Court, per Coker, JSC, in the case of: Njovens & Ors v. The State (1973) 1 NMLR p. 331 elucidated most succinctly on this legal point as follows:
“The overt act or omission which evidences conspiracy is the ‘actus reus’ and the ‘actus reus’ of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. V. Meyrick and Ribuffi (1929) 21 C. App. R. 94.

They need not all have started the conspiracy at the same time for a conspiracy started by same persons may be joined at a later stage or later stages by others.”
See also the cases of: (1) Erim v. State (1994) LPELR-1159 (SC); (2) Oduneye v. State (2001) 2 NWLR (Pt. 697) p. 311; (3) Kaza v. The State (2008) 1-2 SC p. 151 at pgs. 164-165; (4) Onyenye v. The State (2012) All FWLR (Pt. 643) p. 1810; (5) Yakubu v. State (2014) 8 NWLR (Pt. 1408) p. 111 and (6) Musa v. State (2018) LPELR-43846 (SC). On the nature of proof required to establish criminal conspiracy, the Apex Court per Achike, JSC (of blessed memory) in the case of: Oduneye v. State (supra), had the following to say:
“A conviction for conspiracy is not without its inherent difficulties …. a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of the fact in issue but of other facts from which the fact in issue can be inferred. Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused.”

See also Section 516 of the Criminal Code Act, Cap. C 38, Vol 4, Laws of the Federation of Nigeria, 2004. In the instant matter, the trial Court having reviewed, the evidence of PW1, PW2 and the Confessional Statement of the Appellant Exhibit “A”, held at page 13 of its judgment contained in the last paragraph of page 57 of the record of appeal as follows:
“The evidence from PW1 and Pw2 was that the accused and another person came to rob them. Exhibit A also was explicit on the fact that the accused and Kabiru planned and executed the robbery against PW1 and his wife. There is no doubt the agreement between the accused and Kabiru to carry out the robbery attack is conspiratorial. It follows that conspiracy to commit armed robbery is borne out of the evidence led in this case. The accused is therefore guilty of conspiracy to commit armed robbery.”

It is evident from the reasoning of the trial Court reproduced above that the trial Court relied on the evidence of PW1, PW2 and indeed Exhibit A the confession of the Appellant and properly in my view inferred that there must have been a meeting of the mind between both the Appellant and the man named “Kabiru”, who remains at large, as contained in Exhibit A. PW1 and PW2 were “ad idem” and remained resolute under cross-examination that the Appellant was not alone when their house was invaded on the night in question. That they were robbed at gun point of their money and other possessions to wit: telephone set and wrist watch. The money was passed on to his gang member by the Appellant but both the telephone set and wrist watch were recovered from the Appellant. Most damning is the evidence that, PW1 prevented the Appellant from escaping, PW2 raised an alarm, their neighbours were alerted and the Appellant was apprehended with a gun and some ammunitions at the crime scene. I hold that the evidence of PW1 and PW2 and Exhibit A are a vivid account of the robbery incident and sufficient proof of the offence of conspiracy.

The learned counsel for the Appellant contended laboriously, in vain in my view, that the charge preferred against the Appellant did not state that the Appellant committed the alleged offence with other named person(s) who is/are at large. It is not contained anywhere in the printed record that the Appellant’s counsel, at anytime before and during the trial, challenged the competence of the charge, most importantly during his arraignment when the charge was read and explained to him and before his plea was taken. The law is trite that, the appropriate time to complain or object to a charge as drawn up, is at the time it is being read to and before the plea of an accused person. If the Appellant had perceived any defect or ambiguity in the charge preferred against him, he should not have responded with his plea when the charge was read to him, he should have objected at the reading of the charge. As it will be too late for an accused to challenge his conviction on ground of a defect on the charge at the appellate Court, unless the defect complained of is so material as to lead to a miscarriage of justice or goes to the jurisdiction and competence of the trial Court. The Appellant in this matter was not in any way misled by the charge preferred against him by the Respondent, what is more, he was represented by a counsel throughout his trial. The Appellant’s plea is therefore valid as proper procedure was employed in his trial. No miscarriage of justice is occasioned by the way the charge was framed, at least, the Appellant has failed to show the contrary. Moreover, the evidence led throughout trial by the Respondent is in consonance with the complaint against the Appellant that he was in the company of other person(s) when he committed the alleged offences that he was charged with. See the cases of: (1) Shehu v. State (2009) LPELR – 3578 (CA); (2) Okewu v. FRN (2012) LPELR- 7834 (SC); (3) Okpa v. State (2017) LPELR-42205 (SC) and (4) Osareren v. FRN (2018) LPELR- 43839 (SC). In the case of: Shehu v. State (Supra) where I had the privilege of writing the lead judgment, I had the following to say on this issue:
“The Appellant did not object to the alleged particulars of the charge throughout his trial. The law is trite that any objection to a charge for any formal defect on the face therefore shall be taken immediately after the charge has been read over to the accused and not later. Hence, any objection to a formal defective charge must be taken before the plea, otherwise, the objection would be deemed to have been waived. See the cases of: (1) Bamaiyi v. State (2006) 12 NWLR (Pt. 994) p. 221; (2) Adio v. The State (1986) 3 NWLR (Pt. 31) p. 714 and (3) Agbo v. The State (2006) 6 NWLR (Pt. 977) p. 545. It is settled law that an accused person who acquiesced to an irregular procedure of his trial cannot complain about the irregularity on appeal, if it did not lead to a miscarriage of justice.”
My view expressed in the above referred decision has not changed. I hold that the complaint being made by the Appellant in the instant appeal about the perceived irregularity in the charge against him is post-humous and of no moment.

Furthermore, the Appellant’s counsel’s submissions in challenge of Exhibit A, the Appellant’s confession, are in my opinion equally of no moment. The trial Court’s separate ruling on Exhibit A was not appealed against by the Appellant, hence, Exhibit A remains sacrosanct at this stage. It should be noted that the end product of a trial-within-trial is an interlocutory decision to admit the extra-judicial confessional statement of an accused person. Such decision is appealable by an Appellant appealing his conviction to the Court of Appeal.

Although, a confessional statement is admitted following trial-within-trial proceedings, it becomes difficult for an appellate Court to intervene on an appeal against its admissibility, as the evaluation of the evidence adduced at the trial is based on the credibility of the witnesses, which duty is solely that of the trial Court. See the cases of: (1) Ibeme v. State (2013) LPELR-20138 (SC); (2) Lasisi v. State (2013) 9 NWLR (Pt. 1358) p. 74 at pgs. 96-97, paras. H-B and (3) Asimi v. State (2016) LPELR-40436 (SC).

The learned Appellant’s counsel equally hammered on the fact that the evidence of the Appellant on oath was not challenged, whatever that means. Although, the Appellant was not cross-examined, the trial Court in my view properly found in respect of the sworn evidence of the Appellant in this regard. This was properly laid out in pages 55 to 56 of the record of appeal. Particularly, in paragraph one of page 56 of the record of appeal, the trial Court held as follows:
“The issue involved here is that of credibility. Who is credible between PW1, PW2 and the accused person. I have no doubt that the accused is not a credible person.

A part of Exhibit A shows what type of person he is. He said “In the year 2006 I was arrested for a case of Armed robbery, I spent six years at Olokuta prison yard. I was released in February, 2011 from prison.” I have no reason at all to disbelieve PW1 and PW2. The totality of this therefore is that I believe that the accused and his colleague Kabiru went to the house of PW1 during the night of the 14th to the morning of the 15th of June, 2011 and they robbed PW1 and his wife, PW2. The Accused was caught by PW1 at the scene of crime.”

The second count preferred against the Appellant is, the offence armed robbery. The contentions of the Appellant are that the count was not established beyond reasonable doubt against the Appellant by the Respondent and that the trial Court did not properly evaluate the evidence adduced by both parties before it convicted the Appellant for the offence.

Before proceeding with the resolution of the poser: whether or not the legal onus placed on the Respondent in establishing the offence of armed robbery against the Appellant was discharged? I will pause to quickly reiterate the definition of the offence of “armed robbery” from the stand point of the Robbery and Firearms (Special Provisions) Act (Supra) under which the Appellant herein has been charged. Section 11 of the Act defines robbery as meaning – “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 it or retain the thing stolen or retained”.
Therefore, armed robbery within the context of the Act simply means, robbery while armed with an offensive weapon. In the case of: Ibrahim v. State (2014) 3 NWLR (Pt. 1394) p. 305, the Supreme Court per Ariwoola, JSC on the point stated that:
“Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.”

Now, in the bid to establish the ingredients of the offence of armed robbery with which the Appellant was charged, it is patent on the record of appeal that, the Respondent relied on the evidence of eye witnesses as well as on the confessional statement of the Appellant and the trial Court properly found on these.

On the first ingredient of armed robbery, that is, it must be established that there was a robbery, the evidence of PW1 and P2 is contained in pages 12 to 19 of the record of appeal. PW1 and PW2 were both victims of and eyewitnesses to the crime. Their accounts of the event on the night of the incident are identical. They both stated that they were woken up from sleep by some home invaders. The total sum of fifteen thousand naira, a hand telephone set and wrist watch belonging to both PW1 and PW2 were stolen by the Appellant and his mate who is still at large, under threat, force and the Appellant was armed with a gun at the time of the attack. The Appellant in his confessional statement Exhibit A stated that he was in the company of one Kabiru, when he broke into the home of PW1 and PW2 on the night in question. In his own words, the Appellant stated of himself and his mate:
“We forced the kitchen door opened with an iron rod. We entered the man’s room …….” He admitted that some money belonging to the couple was stolen by him and he passed on the money to the said Kabiru. According to PW3, a report of the alleged robbery incident was initially lodged at the Akure “B” Division of the Nigeria Police, Ondo State Command and later transferred to the Special Anti Robbery Squad (SARS) for further investigation.

The trial Court found that; “there is convincing evidence before the Court that PW1 and PW2 were robbed on the day relevant to the charge.” I agree with the findings of the trial Court. There is no doubt that PW1 and PW2 were robbed of some possessions on the day in question.

The second ingredient of the offence of armed robbery that must be proved is that, the robbery was an armed robbery. PW1 and PW2 equally stated that during the attack on them, the Appellant was armed with a gun. PW1 said the Appellant had with him a double barrel gun, that the Appellant even “cocked the gun” and threatened to shoot him with the gun if he failed to cooperate. PW3 a Sergeant with SARS in his evidence on oath stated that the case was transferred to his Unit from Akure “B” Division of the Nigeria Police and he headed the team of investigators. The case file, Appellant, a locally made short pistol and two live cartridges were handed over to him. He equally obtained Exhibit A, the confessional statement of the Appellant. In his confessional statement Exhibit A, the Appellant stated that, he broke the victims’ kitchen door with an iron rod and entered the house with a gun and at gun point demanded for and stole some money from PW1 and PW2.
The money was passed by him to his friend Kabiru. Upon the evaluation of the evidence adduced by both the Respondent and Appellant, the trial Court found as follows:
“However, there is no doubt that the accused was armed with a firearm that night. He said in Exhibit A that ‘I entered inside the room with gun’. The accused further claimed in Exhibit A that the gun had cartridges as he said that it was Kabiru that brought the gun and the cartridges. PW1 said that the accused threatened to use the gun when he was told that he and PW2 had no money. He even cocked the gun. The implication of this is that the accused was armed with a gun that night when he and Kabiru robbed PW1 and PW2. He also threatened to use the gun when he thought PW1 and PW2 would not cooperate with him by giving him and his colleague. It follows that the prosecution has proved the third and last ingredient of the offence of armed robbery. The fact that the gun was not tendered in the case is of little consequence. The accused from the deepest of his mind said he had a gun during the robbery and that he had cartridges for the gun. This shows that it was not a dummy gun.”

I am completely at one with the above reproduced findings of the trial Court. The Appellant in his own words in Exhibit A stated that, he entered the victims’ room with a gun. This is very powerful. I agree with the trial Court that the fact that the Respondent did not tender the gun in evidence is not fatal to the case of the prosecution. The type of gun the Appellant was armed with at the time of the robbery is also immaterial, whether it was a locally made short pistol or double barrel gun or even a toy gun. For it is indeed possible for the gun not to have been retrieved, that situation in itself will not derogate from the fact that the Appellant was armed with a gun during the robbery and threatened to shoot PW1. What is more, the Appellant in his own words confessed that he was carrying a gun when he robbed PW1 and PW2 of their possessions. This is in addition to the evidence of PW1 and PW2, eye witnesses to and victims of the crime that the Appellant was armed with a gun when he robbed them, which the trial Court found credible. The law is also settled that, it is not a legal requirement for the prosecution to tender in evidence the weapon used in a robbery in order to establish the guilt of the accused person. See the cases of: (1) Olayinka v. The State (2007) All FWLR (Pt. 373) p. 163 at pgs. 173-174, (2) Okudo v. State (2011) 3 NWLR (Pt. 1234) p. 209; (3) People of Lagos State v. Umaru (2014) LPELR-22466 (SC); (4) Eze v. State (2018) LPELR-43715 (SC) and (5) Ajayi v. State (2011) LPELR-4682 (CA).

The third and final ingredient of the offence of armed robbery is the requirement that, it must be proved that the accused person was the robber or one of those who took part in the armed robbery. There is no question that the Appellant took part in the armed robbery on the day in question. This is borne out of the evidence of PW1 and PW2 and the confession of the Appellant vide Exhibit A. Most damnifying is the evidence of PW1 and PW2 that, although the Appellant’s partner-in-crime a.k.a. Kabiru escaped, the Appellant was caught in the act, apprehended at the scene of crime and taken to the Police Station where he was detained and after investigation charged and arraigned at the trial Court. The evidence of the Appellant on oath in which he labored greatly but in vain to deny his role in the commission of the offence he was charged with, is nothing but an afterthought. What is more, the trial Court did not find the said judicial evidence of the Appellant credible, rather, it preferred and believed the version of PW1 and PW2.

On the whole, the trial Court held and I am at one with it that, having established all the ingredients of the offences of conspiracy to commit armed robbery and armed robbery with which the Appellant was charged, the resultant effect is that the prosecution, that is, the Respondent had proved the offences beyond reasonable doubt.

In direct response to the poser for the Appellant: whether the trial Court did not err in convicting the Appellant based mainly on the Appellant’s retracted confessional statement Exhibit A? My answer to the poser is resoundingly in the negative. No, the trial Court did not err. The law is well settled beyond any equivocation that, the mere retraction of a confessional statement by an accused person will not render it inadmissible. The retraction may only affect the weight to be attached to the confession, that is, where the accused denies making it at the earliest opportunity. The law is further trite that confession alone is sufficient to support conviction even without corroboration, so long as the Court is satisfied of the truth of the confession.
Very recently in the case of: Agu v. State (2017) LPELR – 41664 (SC) the Apex Court per Mohammad, J.S.C (as he then was, now CJN) restated the trite legal position as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It needs to be restated here too that the fact that an accused person’s evidence in Court contradicts his extra judicial confessional statement does not deprive the Court from convicting the accused on the basis of the confessional statement alone once the confession has been found to be voluntary and true. It is only desirable but not mandatory for the trial Court to identify such corroborative evidence outside the confessional statement before convicting the accused. See Eghogbonome v. The State (1993) 7 NWLR (Pt. 306) 383, Kim v. State (1992) 4 NWLR (Pt. 233) 17, Charles Kingsley Joe Isong v. The State (2016) LPELR – 40609 (SC), Nnamdi Osuagwu v. The State (2013) LPELR – 19823 (SC).”
I equally place further reliance on the cases of: (1) Salawu v. State (1971) NMLR p. 249 at p. 252; (2) Achabua v. State (1976) LPELR – 63 (SC); (3) Okoh v. State (2014) 8 NWLR (Pt.1410) p. 502 and (4) Osareren v. FRN (2018) LPELR – 43839 (SC). In the instant matter, by its ruling on the trial-within-trial, the trial Court found that the confessional statement of the Appellant was voluntarily made and true and rightly admitted it in evidence as Exhibit A. As I earlier on adverted to in this judgment, the Appellant had not filed any appeal against that ruling. Beyond Exhibit A, the trial Court equally properly evaluated and found in favour of the evidence of the Respondent’s witnesses, particularly the very lucid evidence of PW1 and PW2 who were eye-witnesses to and victims of the crime. In my view, it will be incorrect as proposed by the Appellant’s counsel that the Appellant was convicted mainly on the retracted confessional statement of the Appellant, rather, the confessional statement was robustly corroborated by the abundant evidence elicited from the Respondent’s witnesses. To put it in different words, the conviction of the Appellant is the cumulative result of his confession and the evidence of his victims as opposed to the erroneous impression that he was convicted exclusively on his confessional statement.

Having found the evidence of the Respondent credible, the trial Court rightly found that the Respondent had proved beyond reasonable doubt the offences the Appellant was charged with. Consequently, both the legal standard of proof required to ground the conviction of the Appellant was adequately met and the onus of proof placed on the Respondent had been discharged. I do not find any material lacunae in the case of the Respondent. Rather, the defence of the Appellant is shallow. The oral evidence of the Appellant in Court which contradicted Exhibit A, the Appellant’s extra judicial confessional statement is inconsequential, Exhibit A having been found to have been voluntarily made and true in the circumstances of this case. I hold that the Appellant was properly convicted as charged and sentenced in accordance to law.

Before I end this judgment, I consider it quite requisite to comment on the very reprehensible attitude of the senior prosecuting counsel in this matter. He is no less a legal personality than the then Director of Public Prosecutions of Ondo State, Mrs. A. O. Adeyemi – Tuki. A holder of a statutory/constitutional office, Mrs. A. O. Adeyemi – Tuki abandoned the prosecution of the instant case at the trial Court mid-stream. Not only was she absent from the Court to cross-examine the Appellant, she failed to close the prosecution’s case and did not file the required Counsel’s final written address to buttress the case of the prosecution against the Appellant as an accused person. I must say that this is novel, an unprecedented scale and negatively peculiar in the practice of law in this country or any other. The action of the said senior government legal officer is not only loose but highly unprofessionally sacrilegious, having regard to her prominent office and the fact that this had to do with the administration of criminal justice, a very sensitive part of any nation’s jurisprudence. I condemn in very strong terms the above stated conduct of Mrs. A. O. Adeyemi – Tuki.

In sum, the sole issue donated by the Respondent’s counsel, adopted by me and very well submitted upon by the Appellant’s counsel is resolved against the Appellant. Consequentially, this appeal is utterly devoid of merits and accordingly dismissed.

With the failure and dismissal of the appeal, the judgment of the trial Court delivered on the 6th day of August, 2013 in which the Appellant was found guilty as charged and duly sentenced is hereby affirmed in its entirety.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA.

The treatment of the sole issue formulated by the Respondent in the lead judgment is purposeful and the resolution of same in accordance with the justice of the Criminal Appeal. I therefore subscribe to the reasoning and conclusion reached in the lead judgment.

This Appeal has no merit and fails. It is dismiss by me and the conviction and sentence of the Appellant by the Lower Court affirmed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read before now and in draft the lead judgment of my learned brother, OYEBISI F. OMOLEYE, JCA just delivered. I agree with the reasonings and the conclusions reached therein that this appeal lacks merit. It is for these same reasons which I adopt as mine that I too dismiss this appeal.
Appeal is dismissed.

Appearances:

Akin Akintoye II with him, Femi Olorunfemi For Appellant(s)

Absent For Respondent(s)

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