OJOH v. STATE OF LAGOS (2020)

OJOH v. STATE OF LAGOS

(2020)LCN/15344(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/774CA/2018

RATIO

CRIMINAL LAW: CONSPIRACY: BURDEN OF PROOF: FACTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF CONSPIRACY

It is horn book law that conspiracy is rarely capable of direct proof and the proof of conspiracy is inferentially deduced from the acts of the parties, acting in concert, which is focused towards the realization of their common or mutual criminal purpose vide KAZEEM vs. THE STATE (2009) 29 WRN 3 and SALAWU vs. THE STATE(2010) LPELR (9106) 1 at 35-36. The lower Court rightly convicted the Appellant for conspiracy as charged as the same was proved by inference from the surrounding circumstances. See SULE vs. THE STATE (2008) 17 NWLR (PT 1169) 33 and ADEJOBI vs. THE STATE (2011) LPELR (97) 1 at 36. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CRIMINAL TRIAL: FORMS OF EVIDENCE TO PROVE THE GUILT OF A DEFENDANT IN A CRIMINAL TRIAL

The law is that the guilt of a defendant in a criminal trial can be proved by reliance on a confessional statement voluntarily made, by the evidence of eyewitnesses and by circumstantial evidence. SeeEMEKA vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2010) 8 NWLR (PT 1234) 209 at 236. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: POSITION OF THE LAW ON WHETHER A WITNESS MUST GIVE EVIDENCE ON A MATTER TO THE EXACT MINUTEST DETAILS

At any rate, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-à-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. PER OBANDE FESTUS OGBUINYA, J.C.A.

WORDS AND PHRASES: CONTRADICTION

Etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case, seeEbeinwe v. State (2011) 7 NWLR (Pt, 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127. PER OBANDE FESTUS OGBUINYA, J.C.A.

CONFESSIONAL STATEMENT: RELEVANCE OF A CONFESSION

A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime.
Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to solely base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) 16 NWLR (Pt. 1591) 304; Agugua v. State(2017) 10 NWLR (Pt. 1573) 254; Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430; Umar v. FRN (2019) 3 NWLR (Pt. 1660) 549; Iorapuu v. State (supra).
Indeed, the Olympian position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpan v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: POSITION OF THE LAW ON WHETHER THE EVIDENCE OF A VICTIM CAN BE DEEMED TO BE THAT OF AN EYE-WITNESS

The law now treats and ascribes to the evidence of a victim as that of an eye witness, seeGiki v. State (2018) 6 NWLR (Pt. 1615) 237; Chidozie v. COP (2018) 6 NWLR (Pt. 1615) 373; Ogu v. COP (2018) 8 NWLR (pt. 1620) 134. In the mind of the law, an eye witness connotes a person who can testify as to what he has seen from personal observation, see Ude v. State (2016) 14 NWLR (Pt. 1531) 122. PER OBANDE FESTUS OGBUINYA, J.C.A.

CRIMINAL LAW: POSITION OF THE LAW ON PROVING THE OFFENCE OF CONSPIRACY BY INFERENCE

In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime, seeOjo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366) 668; Clark v. State (1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt.1) 6; Okeke v. State (1999) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (1973) 5 SC 17/(1973) 1 NMLR 331/(1975) LPELR – 2042 (SC); Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147; Adoba v. State (2018) 12 NWLR (Pt. 1633) 236; Yahaya v. State (2018) 16 NWLR (Pt. 1644) 96; Saminu v. State (2019) 11 NWLR (Pt. 1683) 254.
It is decipherable from the hallmarks of conspiracy, chronicled above, that the major barometer to gauge its proof is domiciled in the realm of inference – an indispensable component of circumstantial evidence. In law, inference is: “A conclusion reached by considering other facts deducing a logical sequence from them”, see Muhammad v State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the Court the wide latitude to draw inferences, see Babatunde v. State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v C.O.P. (2015) 15 NWLR (1483) 557; Morah v. FRN (2018) 15 NWLR (Pt. 1641) 60. The philosophical basis inferential mode of proof is not far-fetched. There is no art to find the mind’s construction in the face. Even clairvoyants cannot forecast accurately the intent of a man. Even “the devil himself knoweth not the intention of a man”, see Peter v. State (2018) 13 NWLR (Pt. 1635)1. PER OBANDE FESTUS OGBUINYA, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

SGT. BELLO OJOH APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Lagos, Ikeja Division (hereinafter addressed as “the lower Court”) coram judice: S.S. Ogunsanya, J., in charge No. ID/43C/2013, delivered on 28th February, 2018. Before the lower Court, the appellant and the respondent were the defendant (accused) and complainant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. On 23rd September, 2016, one Jubril Rafiu Oluwagbenga and Afolabi Ademola (driver) were the occupants of a tanker truck, loaded with kerosene, moving from Apapa to Isolo in the night. Before they got to Mile 2, they slowed down because the road was bad. It was between 12pm – 1am in the night. Then, a faragon bus crossed the tanker truck. The bus had four occupants including the appellant who was in military uniform. They ordered them to come down and they did. They told them that they were driving recklessly and ordered them to enter the bus. They entered and sat on the floor of the bus that had no seats. They threatened to injure them with knife any time they wanted to escape. When the bus slowed down at Alaba market, Jubril Rafiu Oluwagbenga, tried to jump out and the police, from Festac Police station, rescued him in an unconscious state. The driver, Afolabi Ademola, escaped too. The appellant and the other were arrested. The police later recovered the tanker at a different place in Apapa. The case was transferred to the State Criminal Investigation Department (SCID) Panti, Lagos. After the police investigation, the appellant was, along with the three others, arraigned before the lower Court for offences of conspiracy and armed robbery contrary to the provisions of Sections 297 and 295 (2) (a) of the Criminal Law, No. 11, Laws of Lagos State, 2011 respectively. The appellant pleaded not guilty to the charge.

Following the plea of not guilty, the lower Court had a full scale determination of the case. In proof of the case, the respondent fielded three witnesses, PW1-PW3, and tendered some exhibits. In defence of the case, the appellant testified in person, as DW3, and called no other witness. At the closure of evidence, the parties, through their counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 28th February, 2018, found at pages 203-230 of the main record, the lower Court found the appellant guilty of the charge, convicted him and sentenced him to death.

The appellant was aggrieved by the decision. Hence, on 4th May, 2018, the appellant lodged a 5-ground notice of appeal, copied at pages 231-235 of the main record, wherein he prayed the Court for:
1. AN ORDER allowing the appeal and setting aside the Conviction and sentence of the Appellant on which Conviction and Sentence are contained in the Judgment of Honourable Justice S.S. Ogunsanya delivered in Charge No: ID/43C/13 on the 28th of February, 2018.
2. AN ORDER discharging and acquitting the Appellant of the Charge preferred against him and the Sentence of the trial Judge.
3. AND SUCH FURTHER ORDERS as the circumstances of the present appeal may permit.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of criminal appeals in this Court. The appeal was heard on 24th June, 2020.

During its hearing, learned appellant’s counsel, Adebola Ojo, Esq, adopted the appellant’s brief of argument, filed on 4th October, 2019, and the appellant’s reply brief, filed on 19th June, 2020, both deemed properly filed on 24th June, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Adebayo Haroun Esq., adopted the respondent’s brief of argument, filed on 28th May, 2020 but deemed properly filed on 24th June, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether on the totality of the evidence adduced before the trial Court, the ingredients for the offences of Conspiracy to commit Armed Robbery and Robbery contrary to Sections 297 and 295(2) respectively, of the Criminal Law of Lagos State 2011 were proved beyond reasonable doubt.
2. Whether the learned trial judge properly evaluated the evidence presented by the prosecution before convicting the Appellant for conspiracy to commit robbery and armed robber thereby sentencing him to death.
3. Whether the trial judge was right to have relied entirely on the involuntary confessional statement of the Appellant.

In the respondent’s brief of argument, learned counsel adopted the issue crafted by the learned appellant’s counsel with certain modifications as follows:
i. Whether from the totality of evidence placed before the trial Judge the Prosecution was able to establish the guilt of Appellant beyond reasonable doubt so as to warrant the conviction and sentence of all Defendants.
ii. Was the confessional statement involuntary and entirely relied upon by the trial Judge?

In view of that adoption, I will decide the appeal on the issues nominated by the appellant: the undisputed owner of the appeal.

Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that the ingredients of armed robbery must be separately proved beyond reasonable doubt by the respondent. He relied on Dawai v. State (2017) LPELR 40385 (SC); Babarinde v. State (2012) LPELR-8367 (CA); Yorume v. State (2010) LPELR-4710 (CA). He noted that the prosecution must prove the first ingredient-that robbery occurred or something was stolen. He citedAruna v. State (1990) LPELR-568 (SC). He stated the meaning of robbery and armed robbery as noted in Kubuiro v. State (2016) LPELR-40143 (CA). He observed that the prosecution never proved that anything was stolen from the tanker. He explained that the documents, about the content of the tanker, were withheld by the prosecution and so unfavourable to it. He cited Section 167 (d) of the Evidence Act, 2011; Shodiya v. State (2013) LPELR-20717 (SC). Eyop v. State (2012) LPELR-20210 (CA). He reasoned that the appellant lack of investigation of the case was fatal to the respondent’s case. He referred to Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350. He claimed that there were contradictions in the respondent’s evidence on the litres of kerosene and where the tanker truck was received which were material to the case. He cited Gabriel v. State (2008) 6 NWLR (pt. 975) 100; Ahmed v. State (2018) LPELR-46606 (CA). He stated that it was not proved that the appellant stole something. He referred to Afribank (Nig) Plc v. Homelux Construction Co. Ltd. (2008) LPELR-9020 (CA).

Learned counsel posited that it was not proved that the appellant was in unlawful possession of offensive weapons or bayonet. He cited Section 39 of the Firearms Act, 1959; Okashetu v. State (2016) LPLR-40611 (SC). He conceded that military bayonet is an offensive weapon. He relied on Section 2(2) of the Robbery and Firearms (Special Provisions) Act, 1990, Section 15 (1) of the Robbery and Firearms (Special Provisions) Act, 2004, Nwachukwu v. State (1986) LPELR-2085 (SC). He maintained that the appellant never committed the alleged robbery. He asserted that conspiracy is a different offence from armed robbery. He opined that there was no evidence of conspiracy in terms of agreement against the appellant especially when the substantive offence, armed robbery, was not proved. He cited Aribigbola v. State (2010) LPELR-9164 (CA); Njovens v. State (1973) LPELR-2042 (SC); Auta v. State (2018) LPELR-44490 (CA).

On behalf of the respondent, learned counsel contended that proof beyond reasonable doubt is not beyond shadow of doubt but proving the ingredients of the offence. He relied on Hassan v. State (2016) LPELR-42554 (SC). He observed that conspiracy is proved by inference, not by direct evidence. He cited Usufu v. State (2007) 3 NWLR (Pt. 1020) 94; Alarape v. State (2001) 5 NWLR (Pt. 705) 79; Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157; Njovens v. State (1973) 5 SC 17. He claimed that proof of substantive offence meant proof conspiracy. He referred to Kadiri v. State (2019) LPELR 47714) CA); Abioye v. State (1987) 2 NWLR (Pt. 58) 645; Amadi v. State (1993) 3 NWLR (pt. 314) 644. He added that the lower Court convicted the appellant for the offences of conspiracy and armed robbery so that both suffer the same fate on appeal. He cited Njovens v. State (supra); Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 256; Usufu v. State (supra); Enahoro v. State (1969) NSCC 98; Oseni v. State (2017) LPELR-42546; Idowu v. State (2011) LPELR-3597; Balogun v. State (2018) LPELR-44215; Temitope v. State (2010) LPELR 37521; FRN v. Usman (2018) LPELR-43894; Lateef v. FRN (2010) LPELR -9144. He explained that once common intention was proved, it would be irrelevant that the parties had no agreement. He referred to Akpan v. State (2016) LPELR-41156 (CA). He posited that the lower Court was right.

Learned counsel enumerated the three ways to prime crime. He relied onOjo v. State (2018) LPELR 44699 (SC). He listed the ingredients of armed robbery to be proved beyond reasonable doubt. He referred to Opeyemi v. State (2019) LPELR-48764 (SC). He asserted that apart from the confessional statement, there was eye witness evidence of PW2 and PW2 which proved the offences. He cited Akinlolu v. State (2015) LPELR-25986 (SC); Ilodigwe v. State (2012) LPELR-9342 (SC). He stated that act of stealing is the foundation of armed robbery. He relied on Tanko v. State (2009) LPELR-3136 (SC). He observed that exhibit P1, which was used to threaten the victims is an offensive weapon. He cited Faleye v. State (2012) LPELR-20429 (CA). He said that exhibit P1 was legally possessed, but used for illegal act. He opined that the evidence of PW1-PW3 showed that the appellant participated in the crime. He claimed that contradiction must be material to affect a case. He relied on Friday v. State (2016) LPELR-40638 (SC); Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57. He asserted that there were no material contradictions in the respondent’s case. He concluded that enough evidence on the truck were placed before the Court so that Section 167 (d) of the Evidence Act, 2011 would not apply. He cited Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521. He reasoned that the dismissal of the appellant from the Nigerian Army showed that he committed the offences.

On points of law, learned appellant’s counsel submitted that there was no evidence of appellant’s dismissal from the Nigerian Army as required by Section 248 of the Evidence Act. He argued in the alternative, that if the appellant was tried by a Court Martial, the fact that he was sentenced to death showed his innocence. He cited Section 107 (2) of the Armed Forces Act for the punishment for armed robbery. He described the respondent’s argument as speculative which the Court must ignore. He referred to Adegbola v. State (2017) LPELR-42564 (SC). He added that if the appellant had been convicted by a Court Martial, his trial before the lower Court would amount to double jeopardy under Section 36 (9) of the Constitution, as amended. He cited Nigerian Army v. Aminun-Kano (2010) LPELR-2013) (SC).

Issue two.
Learned appellant’s counsel submitted that it is the duty of trial Court to evaluate evidence. He relied onOlufusoye v. Olorunfemi (1989) LPELR-2615 (SC); Hamza v. State (2016) LPELR-41557 (CA); Edwin v. State (2019) LPELR-46896 (SC). He noted that evaluation of evidence involved assessment of the evidence and restatement of evidence. He cited Oke v. Nwizi (2013) LPELR-21252 (CA). He reasoned that the lower Court merely restated the evidence. He repeated that there were material contradictions in the respondent’s case which affected its case, He relied onAlo v. State (2015) LPELR-24404 (SC); Amala v. State (2004) 12 NWLR (Pt. 888) 520; Arehia v. State (1982) LPELR-543 (SC). He noted that the lower Court was wrong to treat PW 2 and PW3 as eye witness when they were not present when the kerosene was stolen. He cited Oluwatoyin v. State (2018) LPELR-44441 (CA) for the meaning of eye witness. He repeated that the failure to properly investigate the case affected it. He referred to Al-Mustapha v. State (supra); Onah v. State (1985) LPELR-2668 (SC); Nuhu v. Saleh (2014) LPELR -24616 (CA); Dibia v. Igwe (1998) 9 NWLR (Pt. 564) 78; Jimoh v. A-G., Fed. (1998) 1 HRLRA 528. He concluded that the lower Court found conflicting possibilities about the road and ought to have made a visit to locus in quo to resolve them. He cited Seismograph Services (Nig.) Ltd. v. Akporuovo (1974) 6 SC 119.

For the respondent, learned counsel argued that the lower Court properly evaluated the evidence. He relied on Olowu v. The Nigerian Navy (2006) LPELR 11815 (CA). He took the view that there was no need for visit to locus in quo. He cited State v. Aniakor (2016) LPELR-41040 (CA). He insisted that there were credible evidence which the lower Court relied to convict the appellant. He said that PW1 stated his findings from his duty of investigations. He cited Obot v. State (2014) LPELR-23130 (CA).

Issue three.
Learned appellant’s counsel contended that the appellant was chained and tortured to make the confessional statement which was contrary to the law. He cited Section 29 (2) and (5) of the Evidence Act, 2011; Mathew v. State (2018) LPELR-45519 (CA). He enumerated the guidelines to be used to verify the content of a retracted or an involuntary confession. He cited Doripolo v. State (2012) LPELR-15415 (CA); Michael v. State (2013) LPELR-20770 (sic-no Court), He concluded that the lower Court wrongly admitted the confessional statement despite the evidence of torture by the police.

On the side of the respondent, learned counsel submitted that it was late for the appellant to object to the admission of exhibit P4 which was admitted after trial within trial. He cited Adunbi v. State (2018) LPELR-45005 (CA); Oseni v. State (2012) LPELR-7833 (SC). He posited that no appeal was filed against the ruling wherein exhibit P4 was admitted. He pointed out that the appellant was convicted based on exhibit P4 and other overwhelming evidence using the six tests allowed by law. He referred to Alao v. State (2019) LPELR-47856 (SC).

Resolution of the issues.
A clinical examination of the issues, amply, discloses that issues one and two are intertwined. Both hunt and share a common mission: to puncture the lower Court’s findings on the evidence. In other words, they chastise the lower Court’s evaluation of evidence before it. Given the interwoven judicial relationship between them, I will, in order to conserve the scarce juridical time and space, fuse them and amalgamate their considerations.

To begin with, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and valuate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is derobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.

Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this co-extensive jurisdiction in the appraisal of the array of documentary evidence in this appeal.

Nota bene, the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement or circumstantial evidence or evidence of an eye witness, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505)443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017) 11 NWLR Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391.

Now, one of the appellant’s chief grievances, indeed the foremost one, appertains to the offence of armed robbery preferred against him. The gravamen of his complaint is that the prosecution failed to prove the ingredients of armed robbery to warrant his conviction on the second count of the information.
By way of prefatory remarks, it is important to appreciate the import and features of the substantive offence, armed robbery, which was levelled against the appellant. In law, 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 things stolen or to prevent or overcome resistance to its being stolen or retained. Where the robbery is accompanied by the use of firearm or offensive weapon which causes or attempts to cause any person’s death or hurt or unlawful restraint or fear, it mutates into an armed robbery, see The State v. Yamusissilka (1974) 6 SC 53 at 62; Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209.
To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required, by law, to prove beyond reasonable doubt, that: there was robbery or series of robberies; each robbery was an armed robbery and the accused person was one of those who took part in the armed robbery, see Afolabi v. State(2010) 16 NWLR (Pt. 1220) 584; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Sale v. State (2016) 3 NWLR (Pt. 14499) 392; Ayo v. State (2016) 7 NWLR (Pt. 1510) 183; Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Akwuobi v. State (2017) NWLR (2017) 2 NWLR (Pt.1550) 421; State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Amadi v. A.-G., Imo State (2017) 11 NWLR (1575) 92.

I have, in due loyalty to the desire of the law, consulted the record, the touchstone of the appeal. My port of call is the abode of the viva voce testimonies of PW1-PW3 which colonise pages 5-124 of the supplementary record. The pungent evidence of PW2 and PW3 showed that on that fateful day, the appellant and his cohorts used a faragon bus to block their tanker truck, carrying kerosene, at the loqus in quo and ordered them to enter their bus with the truck engine running. Later, they discovered that the tanker truck was moved out of the locus criminis and some quantity (about 1000 litres) of their product, kerosine, was stolen. The evidence of PW2, in the crucible of extensive cross-examination, was direct on the point that appellant’s partners-in-crime stole the product. Their evidence also, revealed that in the bus, wherein they were caged on its bare floor, the appellant and his confederates kept them under surveillance/vigilance with a military bayonet, exhibit P1, dagger and belt.

When these concrete pieces of evidence are pieced/pooled together, their progeny is obvious. They amply demonstrate that there was robbery on 23rd September, 2011 wherein the PW2 and PW3 were the victims. The captors of PW2 and PW3, the appellant and his accomplices, were armed with dangerous weapons. In the eyes of the law, exhibit P1 and dagger come within the four walls of offensive weapons as decreed by law. They used them to threaten to hurt, and propagate fear into the victims. They were rattled to the point of compliance with the orders dished out by the robbers. The evidence, even in the heat of cross-examination, unveiled the prominent role played by the appellant who was attired in the garment of colourful military uniform. Indeed, from the evidence he was like “the generalissimo” of the banditry. On the footing of the evidence, the appellant was a particeps criminis in the alleged offence of armed robbery. Interestingly, these classic pieces of evidence, catalogued above, inter alia, were not contradicted even in the cross-fire of cross-examination. In other words, they were incontrovertible testimonies. The law grants the Court the unbridled licence to act/rely on unchallenged evidence, seeAyeni v. State (2016) 12 NWLR (Pt.1525) 51; Mathew v. State (2018) 6 NWLR (Pt. 1616 561; Gana v. FRN (2018) 12 NWLR (Pt. 1633) 294; Musa v. State (2018) 13 NWLR (Pt. 1636) 307; Bassey v. State (2019) 18 NWLR (Pt. 1703) 126; Sale v. State (2020) 1 NWLR (Pt. 1705) 205. These highlighted, incisive and impregnable parol evidence, with due respect, expose the poverty of the learned appellant’s counsel’s scintillating argument that the three ingredients of armed robbery were not satisfied by the respondent.

Another grudge, nursed by the appellant, orbits around the non-proof of the offence of conspiracy by the respondent. Conspiracy is a confederacy, or an agreement, between at least two persons with the aim of committing unlawful or criminal act or doing a lawful act by an illegitimate means. Being an agreement, express or implied, it takes at least two persons to conspire, id est, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to its usual clandestine nature, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from the proved acts of the conspirators in evidence. Such circumstantial evidence, often as good as direct evidence, must be cogent, consistent and irresistibly point to the guilt of the conspirators. In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime, seeOjo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366) 668; Clark v. State (1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt.1) 6; Okeke v. State (1999) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (1973) 5 SC 17/(1973) 1 NMLR 331/(1975) LPELR – 2042 (SC); Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147; Adoba v. State (2018) 12 NWLR (Pt. 1633) 236; Yahaya v. State (2018) 16 NWLR (Pt. 1644) 96; Saminu v. State (2019) 11 NWLR (Pt. 1683) 254.
It is decipherable from the hallmarks of conspiracy, chronicled above, that the major barometer to gauge its proof is domiciled in the realm of inference – an indispensable component of circumstantial evidence. In law, inference is: “A conclusion reached by considering other facts deducing a logical sequence from them”, see Muhammad v State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the Court the wide latitude to draw inferences, see Babatunde v. State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v C.O.P. (2015) 15 NWLR (1483) 557; Morah v. FRN (2018) 15 NWLR (Pt. 1641) 60. The philosophical basis inferential mode of proof is not far-fetched. There is no art to find the mind’s construction in the face. Even clairvoyants cannot forecast accurately the intent of a man. Even “the devil himself knoweth not the intention of a man”, see Peter v. State (2018) 13 NWLR (Pt. 1635)1.

It is in the non-refuted evidence of the respondent’s PW2 and PW3, the victims, that the appellant and the other members of the gang were in the faragon bus that barricaded the fully-loaded tanker truck. They remained in the bus until when they escaped by sheer force. To begin with, the presence of the four, in the same bus, has, ipso facto, fulfilled the requirement of the law that it takes at least two to conspire. It takes two to tango. The irresistible inference is that the four had perfected the plan and agreement to commit the foul crime of armed robbery. They have hatched the plot much earlier before the operation. It was obvious, being the occupants of one bus, that there was a meeting of their minds vis-a-vis the execution of the crime of armed robbery. Their conduct, action and inaction were consistent with a previous clandestine understanding to carry out the robbery operation. In the face of these inferential evidence, the learned appellant’s seemingly alluring submission is disabled from birth. It does not fly.

There is no gainsaying the fact that the lower Court placed high premium on the oral evidence of PW2 and PW3 in relation to the proof the two offences: armed robbery and conspiracy. The act of reliance on them is deeply rooted in the corpus of our criminal jurisprudence. Indisputably, the PW2 and PW3 were the victims of those crimes. The law now treats and ascribes to the evidence of a victim as that of an eye witness, seeGiki v. State (2018) 6 NWLR (Pt. 1615) 237; Chidozie v. COP (2018) 6 NWLR (Pt. 1615) 373; Ogu v. COP (2018) 8 NWLR (pt. 1620) 134. In the mind of the law, an eye witness connotes a person who can testify as to what he has seen from personal observation, see Ude v. State (2016) 14 NWLR (Pt. 1531) 122. The evidence of an eye witness, as already noted, qualifies as one of the three ways to prove commission of a crime. An eye witness testifies to what he has seen or observed personally from any of his senses. It ranks second in the methodical ladder of proof of crimes. It concedes the first rung to a confession. Thus, the eye witness evidence, offered by PW2 and PW3, amply, demonstrate that the appellant partook in the commission of the offences.

That is not all. The appellant made an extra judicial statement which, after a voir dire proceeding, was admitted as a confessional statement. It was admitted as exhibit P4. In the first place, when the pre-trial, statement, exhibit P4, was admitted in evidence, even though the appellant was its owner, it deserted the domain of the defence and metamorphosed into the respondent’s case, see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140; Ifedayo v. State (2019) 3 NWLR (Pt. 1659) 265; Mohammed v. State (2019) 6 NWLR (Pt. 1668) 203; State v. Ibrahim (supra); State v. Buhari (2019) 10 NWLR (Pt. 1681) 583; State v. Shonto (2019) 12 NWLR (Pt. 1686) 255; Edun v. FRN (supra). It flows from the evidential transfiguration/migration, that its contents became part and parcel of the respondent’s case. Remarkably, it amply discloses the appellant’s undiluted admission of the offences preferred against him.
According to Section 28 of the Evidence Act, 2011.
A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime.
Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to solely base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) 16 NWLR (Pt. 1591) 304; Agugua v. State(2017) 10 NWLR (Pt. 1573) 254; Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430; Umar v. FRN (2019) 3 NWLR (Pt. 1660) 549; Iorapuu v. State (supra).
Indeed, the Olympian position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpan v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statement, exhibit P4, drowns his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as makes him the undoubted owner of the requisite mens rea and actus reus in relation to the offences preferred against him. It clearly reveals that the offences were midwifed and hatched by the appellant with his co-culprits some of whom are fugitive from justice. It constitutes a serious blight on the appellant’s case of denial.

In order to castrate the decision, the appellant erected the defence of contradiction. It was contended that the respondent’s evidence were infested with contradictions which rendered them unusable. Etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case, seeEbeinwe v. State (2011) 7 NWLR (Pt, 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127.
The learned appellant’s counsel indentified some portions of the evidence of the respondent’s witnesses, PW1-PW3, that were plagued by contradictions, videlicet: differences in the figures of the quantity of the kerosene stolen, differences in the dates/days and places of recovery of the tanker truck.
I have, in total allegiance to the dictate of the law, situated these highlighted areas in the respondent’s evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if those pieces of evidence are soiled by contradictions. To begin with, the quantum of kerosene, which was stolen from the tanker truck, whether 1000 or 800 litres, is of no moment. It does not erode the validity of the charge against the appellant. The figure differential, on the quantity stolen, is immaterial. The exact date the tanker truck was recovered by the police, be it the date of commission of the crime or the next day, does not derogate from the charge. It does not diminish an inch, the classic parol evidence of armed robbery proffered against the appellant. At once, the exact venue/location of recovery of the tanker truck is irrelevant to the case. The bottomline is that it was recovered, at some place, outside the locus delicti. Indeed, by deductive reasoning, the fact that it was recovered outside the province of the scene of the crime is an eloquent testimony that it was a subject of the offence. It counts against the appellant’s case.
It flows, to my mind, that these pockets of infinitesimal differences in evidence do not, in the least, qualify as material contradictions. They are rather discrepancies that are impotent to ruin the pungent evidence of the respondent professed by PW1 – PW3. The law embraces discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”, see Eke v. State (supra), at 665, per Fabiyi, JSC; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows, that the minute differences in the narration of evidence attest to the veracity of the witnesses on the point.
At any rate, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-à-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phantom or non-existent contradictions.

My noble Lords, it stems from this legal anatomy of evaluation of evidence, that the respondent proved the necessary ingredients of the offence preferred against the appellant beyond reasonable doubt as decreed by Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, seeBanjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1.
In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpates the appellant, as one of the perpetrators of the offences charged is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it, see Olatunbosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287. In effect, all the strictures, which the appellant unleashed on the lower Court’s evaluation of the evidence, pale into insignificance. It will smell of judicial sacrilege to interfere with evidential evaluation which is not offensive to the law. On this score, I therefore, dishonour the learned appellant’s counsel’s enticing supplication to crucify the decision on the underserved altar of improper/perfunctory evaluation of evidence for want of legal justification. In the end, I have no choice than to resolve the conflated issues one and two against the appellant and in favour of the respondent.

Having dispensed with the issues one and two, I proceed to settle issue three. It queries the lower Court’s reliance on the appellant’s confessional statement, exhibit P4, when it was involuntarily made. The learned appellant’s counsel’s submissions on the issue were weaved on the involuntariness of the confessional statement. The learned respondent’s counsel greeted it with an objection on the premise of belatedness.
When the respondent’s PW1, Inspector Gody Osuji, sought to tender the confessional statement as an exhibit, the appellant’s counsel registered a stiff opposition to it. That led to a trial within trial conducted by the lower Court. The ruling of that vior dire, delivered on 4th March 2016, monopolies pages 46-50 of the supplementary record. In the view of the law, that mini trial, even though incorporated in the main trial, is a separate and distinct trial from it, see Auta v. State (1975) 4 SC 125, Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521/(1998) 4 SC 118; Nsofor v. State (2004) 18 NWLR (Pt. 905) 292; Yusuf v. State (2019) 10 NWLR (Pt. 1680) 269. Given this distinction, a party that is peeved by the decision on a trial within trial has to appeal against it.
It is admitted of no argument that the appellant did not appeal the ruling on the mini trial. This is confirmed and solidified by the 5-ground notice of appeal which is wrapped between pages 231-235 of the main record. On this note, the decision on the mini trial is not a subject of appeal before this Court. Curiously, the appellant’s arguments on the issue centre on the castigation of that decision. The arguments are totally divorced from the focus of the issue. In this wise, the issue suffers from the stigma of abandonment. There are no appropriate arguments to oxygenate life into it. Besides, a viable issue must trace its paternity to a ground of appeal which, in turn, must owe its ancestry to a decision of Court. The issue, based on the arguments, is disconnected from the decision in the mini trial which the submissions purport to emasculate. The issue, as it is, is disrobed of root and stems. It is akin to an orphan that has no legal parentage to perch and command any validity. In sum, it is tainted within an indelible incompetence. In effect, the objection, which the learned respondent’s counsel invented to exterminate the issue at its infancy, has merit. Consequently, I upheld the objection. Accordingly, I strike out the issue for being incompetent.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is plain. It is bereft of any morsel of merit and is liable to the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 28th February, 2018.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The lead judgment of my learned brother, Obande Festus Ogbuinya, JCA, which has just been delivered was made available to me in draft.

The Appellant was tried and convicted by the High Court of Lagos State on two counts of conspiracy to commit armed robbery and armed robbery. The facts have been eloquently set out in the lead judgment and it will be inutile to repeat them. The law is that the guilt of a defendant in a criminal trial can be proved by reliance on a confessional statement voluntarily made, by the evidence of eyewitnesses and by circumstantial evidence. SeeEMEKA vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2010) 8 NWLR (PT 1234) 209 at 236.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

The Prosecution employed all the three methods of proof in establishing the guilt of the Appellant. The Appellant, in his confessional statement, Exhibit P4, which was admitted in evidence after a voir dire, admitted and acknowledged committing the offences charged. Since the confession came within the purview of Section 28 of the Evidence Act, 2011, and not having been made in circumstances which offend Section 29 of the Evidence Act, 2011; it was open to the lower Court to convict thereupon as the confession was free and cogent: DIBIA vs. THE STATE (2017) 12 NWLR (PT 1579) 196 and JOHN vs. THE STATE (2017) i6 NWLR (PT 1591) 304.

Additional to the confessional statement, is the eyewitness testimony of the PW2 and PW3, which testimony emerged unscathed after being subjected to the crucible and furnace of cross examination. The lower Court properly evaluated the said evidence and gave it full weight and value. The circumstances of the entire transaction involving the Appellant and his cohorts operating in the Faragon Bus while armed, accosting and whisking the PW2 and PW3 away and the tanker being operated by the PW2 and PW3 resurfacing later at a different location with some of its contents missing, afford circumstantial evidence on which conspiracy to commit the offence charged can be inferred.

The interosculation of the foregoing is that the lower Court appropriately evaluated the evidence and ascribed probative value thereto. In these circumstances, an appellate Court will not interfere as the findings of the lower Court are not perverse: ONOGWU vs. THE STATE (1995) LPELR (2691) 1 33-34 and UGWUMBA vs. THE STATE (1993) 5 NWLR (PT 296) 660 at 671.

It is for the foregoing reasons and the more elaborate reasoning and conclusion in the erudite lead judgment that I equally join in dismissing the appeal. The decision of the lower Court in CHARGE NO. ID/43C/2013 delivered on 28th February 2018 embodying the conviction and sentence imposed on the Appellant is hereby affirmed.

BALKISU BELLO ALIYU, J.C.A.: I read before now, the lead judgment of my learned brother OBANDE FESTUS OGBUINYA, JCA and I agree with his reasoning and conclusion that the appeal has no merit. I also dismiss the appeal and affirm the judgment of the High Court of Lagos State, Ikeja Division delivered on the 28th February 2018 in respect of charge No: ID/43C/2013. Appeal dismissed by me.

Appearances:

Adebola Ojo, Esq. For Appellant(s)

Adebayo Haroun, Esq. Assistant Director, Lagos State Ministry of Justice For Respondent(s)