OKECHUKWU NWESI v. THE STATE (2011)

OKECHUKWU NWESI v. THE STATE

(2011)LCN/4297(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of February, 2011

CA/I/99/07

RATIO

GROUND OF APPEAL: WHETHER AN APPELLANT IS PERMITTED TO INTRODUCE IN HIS BRIEF ISSUES NOT COVERED BY ANY OF THE GROUNDS OF APPEAL HE FILED

In Western Steel works Ltd. & anor. Vs. Iron & Steel Workers Union of Nigeria & anor. (1987) 2 SC 11 at 45 (Also reported in 1987)3 NWLR 284 at 304, Oputa JSC as he then was stated as follows:- “I do not think it is permissible for an Appellant to introduce in his Brief issues not covered by any ground of appeal. The idea of a Brief is to develop and amplify argument on points and issues covered by the grounds of appeal, for ultimately it is not on those grounds and on them alone that the appeal will have to be allowed or dismissed. An issue taken up in a Brief but which was made a ground of appeal ought to be ignored by an appellate court”. Also see Oba Jacole Oyeyipo & anor v. Chief J.O. Oyinloye (1987) 2 SC 148 at 199. Also repoted in (1987) 1 NWLR 356 at 383; Engineering Enterprises of Niger Contractor Co. of Nigeria v. The Attorney General of Kaduna State (1987) 5 SC 27 at 51. PER SIDI DAUDA BAGE, J.C.A.

ADMISSIBILITY AND WEIGHT OF EVIDENCE: WHETHER AN ISSUE OF ADMISSIBILITY OF EVIDENCE IS A QUESTION OF LAW FOR THE JUDGE OF LAW TO DECIDE ON AND THE ISSUE OF WHAT WEIGHT TO BE ATTACHED TO EVIDENCE ALREADY ADMITTED IS FOR THE JUDGES OF FACTS

On the operation of admissibility and weight, the supreme court in the case of Oba E.A Ipinlaiye II Vs., Chief Julius Olukotun & Ors (1996)39 LRCN 1023 at pp.1041-1042 stated as follows:- “An issue of admissibility of evidence is a question of Law for the Judge of Law to decide on. The issue of what weight to be attached to evidence already admitted is for the Judges of facts. The jury in a jury trial or for the Judge sitting alone without a jury. The two concepts are distinct and separate from one another. PER SIDI DAUDA BAGE, J.C.A.

WHETHER AN ACCUSED PERSON WHO WAS NOT PHYSICALLY PRESENT DURING THE ACTUAL COMMISSION OF AN OFFENCE BUT AIDED ANOTHER OR DID ANYTHING TO ENABLE ANOTHER TO COMMIT AN OFFENCE, CAN BE CONVICTED ALONG WITH THE OTHER ACCUSED PERSONS OF THE CHARGED OFFENCE AS A PRINCIPAL OFFENDER

I am in full agreement with trial Judge in his judgment convicting the accused person along with the other accused persons of the offence of robbery as charged when he stated at page 92 of the judgment paragraph 2. “The evidence of the 3rd accused in court did not tally with his statement to the police. Before I go further, let me state that an accused person may not be physically present during the actual commission of an offence but where he has aided another or does anything to enable another to commit an offence, he is deemed to be a principal offender. See:- S.7CC Vol, II Laws of Oyo State 2000. PER SIDI DAUDA BAGE, J.C.A.

COMMENCEMENT OF ACTION: POSITION OF THE LAW WHERE THE IRREGULAR PROCEDURE ADOPTED IN COMMENCING AN ACTION WAS NOT CHALLENGED ON TIME

…and Adebayo & Ors Vs. Shonowo & Ors (1969) 1 all NLR 176, where an irregular procedure was followed in commencing an action, the Supreme Court at page 190 stated as follows: “Even if the procedure adopted by the applicant Adebayo were wrong we think that it is now too late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case…” See also Ashiru Noibi v. R.J. Fikolati & Anor (1987) 3 SC 105 at 121. PER SIDI DAUDA BAGE, J.C.A.

CONFESSION: STATUTORY DEFINITION OF THE WORD “CONFESSION”

Recourse to the definition of confession under Section 27 (1) of the Evidence Act is therefore necessary: “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

OFFENCE OF CONSPIRACY: MEANING AND NATURE OF THE OFFENCE OF CONSPIRACY ENTAILS

Admittedly conspiracy is not an easy offence to define. All would depend on the circumstances of each case, which may decide whether the offence of conspiracy has been committed – See Krulewitch v United States 336 U.S.440 at 445-448, 69 S. Ct, 716 at 719-720, where Associate Justice Jackson (Jackson, J) held: “Conspiracy is an elastic, sprawling and pervasive offense… so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon – like takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always predominantly mental in composition because it consists primarily of a meeting of minds and an intent. (my emphasis) See our decision (Kryluna Division) in Ibrahim v. The State (2011) 1 NWLR (pt. 1227) at 33. See also our decision (Lagos Division) in the case of Usufu v. The State (2007) 1 NWLR (pt. 1020) 94 at 124 per Galinje, JCA, with the concurrence of Salami JCA, (now PCA), and Agbo, JCA, as follows: “Black’s Law Dictionary, 6th Edition defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is unlawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. Combination is defined by the same dictionary as the union or association of two or more persons for the attainment of some common end. Union or association can only be formed through agreement of members. In Com. v. Dyer 243 Massachusetts Report 472, it was held that a crime of conspiracy is distinct from the crime contemplated by the conspiracy. The gist of the offence of conspiracy therefore lies not in the doing of the act or the forming of the scheme or agreement between the parties.The external or overt act of the crime of conspiracy is the concert by which mutual consent to a common purpose is exchanged”. (my emphasis) See again Adebiyi Majekodunmi v. The Queen (1952) 14 WACA 64 at 66 thus: “In our view a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted, and we are fortified in that view by the Judgment of Lord Coleridge, C.J., in Regina v. Whitchurch (2), and by the generally accepted definition of the offence of conspiracy given by Willes, J., on behalf of the Judges in Mulcahy v. R. (3), where he said:- ” A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” The gist of the offence of conspiracy lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. As Bruce, J., says in Rex v. Plummer (4), “the external or overt act of the crime is concert, by which mutual consent to a common purpose is exchanged”. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

OKECHUKWU NWESI Appellant(s)

AND

THE STATE Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Esan J. of the High court of Justice, Oyo State holden at Ibadan in Ibadan Judicial Division in charge No. 1/46c/2004, THE STATE VS. OBINA JOHN, OBASI ONYEYE, OKECHUKWU NWESI (APPELLANT) delivered on the 9th of November, 2006. The Appellant and the two other accused persons in the court below were charge as follows:-
By information filed on the 28tn of July, 2004, seven (7) accused persons namely; 2
(1) Francis Oguegbu
(2) Ifeanyi Moujekwu
(3) Chukwudi Okeke
(4) Obina John
(5) Obasi Onyeye
(6) Okechukwu Nwesi
(7) Ngozi Okafor
Were charged with the following offences
COUNT 1 – STATEMENT OF OFFENCE
Conspiracy to commit felony to wit Armed Robbery contrary to section 5(b) and punishable under section 1(2) (a) of the robbery and fire arms (special provisions) Act cap. 398 Vol. XXII, Laws of the Federation of Nigeria, 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi moujekwu ‘M’ Chukwudi Okeke ‘M’ Obina John ‘M’ obasi Onyeye ‘M’ Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2002 at Idi-Ayunre. along Ibadan/Ijebu-Ode Road Ibadan in the Ibadan Judicial Division did conspire together to rob Saadatu Yusuf, Bayo Owusu, Adedapo Busayo, Asuguo Jackson and Hammed Lawal of their valuable property.
COUNT 2. STATEMENT OF OFFENCE
Armed robbery, contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, volume XXII Laws of the Federation of Nigeria, 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi Moujekwu ‘M’ Chukwudi Okeke ‘M’ Obina John ‘M’ Obasi Onyeye ‘M’Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan in the Ibadan Judicial Division whilst armed with Fire-arms and offensive weapons to wit Guns robbed one Saadatu Yusuf of Five Hundred Thousand Naira (N500,000:00).
COUNT 3 – STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under Section 1(2) (a) of the Robbery and fire arms (special provisions) Act Cap. 398, Volume XXII Laws of the Federation of Nigeria 1990 as amended.
PARTUCULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi Moujekwu ‘M’ chukwudi Okeke ‘M’ Obina John ‘M’ Obasi Onyeye ‘M’ Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan / Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with fire to wit : Guns robbed Bayo Owusu of his One Hundred and Eighty thousand Naira (N180,000:00),
COUNT 4 – STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Fire arms (Special Provisions) Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi Moujekwu ‘M’ Chukwudi Okeke “m” Obina John ‘M’ Obasi Onyeye “m” Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan / Ijebu-Ode Road Ibadan, in the Ibadan Judicial Division whilst armed with fire arms and offensive weapons to wit Guns robbed Adedapo Busayo of his three Hundred and Seven thousand Naira (N307,000 :00).
COUNT 5 – STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Fire arms (Special Provisions) Act Cap.398 Vol. XXII, Laws of the Federation of Nigeria 1990 as Amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi Moujekwu ‘M’ chukwudi Okeke ‘M’ Obina John ‘M’ Obasi Onyeye ‘M’ Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan / Ijebu-Ode Road Ibadan in the Ibadan Judicial Division whilst armed with fire arms and offensive weapons to wit: Guns robbed Asuguo Jackson of his Thirty Thousand Naira (N30,000:00).
COUNT 6 – STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Fire arms (Special Provision) Act, Cap. 389 Vol. XXII, Laws of the Federation of Nigeria 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’ Ifeanyi Moujekwu ‘M’ Chukwudi Okeke ‘M’ Obina John ‘M’ Obasi Onyeye ‘M’. Okechukwu Nwesi ‘M’ on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan / Ijebu-Ode road, Ibadan in the Ibadan Judicial Division whilst armed with fire arms and offensive weapons to wit: Guns robbed Hammed Lawal of his Four Hundred Thousand Naira (N400,000:00).
COUNT 7 – STATEMENT OF OFFENCE
Sheltering Armed Robber contrary to section 5(b) and punishable under Section 1(2) (a) of the Robbery and Fire-arms (Special Provisions) Act Cap. 398 Vol. XXII, Laws of the Federation of Nigeria 1990 as amended.
PARTICUALRS OF OFFENCE
Ngozi Okafor ‘F’ sometimes in the month of May, 2003 at Bola Hotel Ekotedo Ibadan in the Ibadan Judicial Division accommodated one Obina John in your Hotel Room, knowing fully well that he is an armed robber.
Briefly the prosecution’s case is that on the night of the 7th day of May, 2003 the appellant, in company of two others also charged with the offence, conspired together and robbed passengers on board a G.U.O. Luxurious Bus at Idi-Ayunre along the Ibadan / Ijebu-Ode Road in Oyo State whilst armed with guns.
The Appellant and two accused persons were charged under section 5(b) and Section 1(2) (a) of the Robbery and Fire arms (special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 as amended.
The Appellant was arranged on the 13th of April, 2005 and pleaded not guilty to all the Six Counts leveled against him by the State. The case went on to be heard with the prosecution calling seven (7) witnesses whilst the Appellant testified in his own defence and did not call any other witnesses.
At the close of evidence on both sides, counsel addressed court and in a considered judgment delivered on the 9th of November, 2006, the learned trial judge found the charge proved and convicted and sentenced the Appellant to death as follows:-
“The prosecution has proved Count 1 beyond reasonable doubt Each accused is found guilty in count 1.
In sum therefore the 3 accused persons are each convicted as charged in counts 1, 2, 3, 4 and 6 respectively”
It is against this conviction and sentence that the dissatisfied accused person (now appellant) has appealed to this court.
In his undated Amended Notice of Appeal but filed on the 14/2/08 attached to the Record of Appeal consist of two Grounds of appeal which are reproduced here under as follows:-
GROUND ONE
That the Learned trial Judge committed a grave error in Law in convicting the Appellant of the offences of conspiracy to commit a felony to wit Armed Robbery and sentencing him to death when the prosecution failed to properly discharge the onus of them proving the guilt of the Appellants beyond reasonable doubt particularly in the light of the evidenced adduced before the court and thereby occasioning a miscarriage of justice.
PARTICUALRS OF ERROR:-
(a) Section 138 of the Evidence Act provides that all the ingredients of a crime must be proved beyond reasonable doubt by the prosecution.
(b) The intention of the Appellant to commit a felony or indeed to commit the particular offence of Armed Robbery for which he was charged was not proved at all or beyond reasonable doubt.
(c) The evidence of the prosecution’s witnesses (the alleged victims of the G.U.O. Luxurious Bus Robbery) of the events of the alleged armed robbery did not connect the Appellant or indeed any of the other Co-accused persons to the robbery in any way at all.
(d) The complete failure of the prosecution to call the bus driver who by the accounts of most of the prosecution witnesses accompanied the robbers away from the scene of the G.U.O. Luxurious Bus Robbery to identify the Appellant or any of the Co-accused persons is fatal to the prosecution’s case.
(e) The Learned Trial Judge wrongly relied on the hearsay evidence of P.W.7 that there was no robbery in an Ifesinachi Luxurious Bus in arriving at the conclusion that the robbery referred to in the statement of the Appellant and his Co-accused persons was the same one as the G.U.O. Luxurious Bus robbery when in fact the prosecution had the opportunity to call the manager of the Ifesinachi Luxurious Bus station in Ibadan to give evidence and be cross examined on that fact but failed completely to do so.
GROUND 2
The learned trial Judge committed a  grave error in law in convicting the Appellant of the offences of conspiracy to commit a felony and armed robbery whilst placing reliance on the alleged “Confessional statement” was not an admission of the offence for which the Appellant was charged.
PARTICULARS OF ERROR
(a) The Onus of proof placed on the prosecution by Section 138 of the Evidence Act relates to every allegation or charge brought by them against the Appellants and they failed to discharge same as regards the alleged “Confessional Statement” of the Appellants.
(b) The “Confessional statements” of the Appellants clearly related to another incidence for which the Appellant was NOT charged.
(c) The alleged “Confessional statement” of the Appellant which did not relate in any to the offence charged was the basis of which the Learned Trial Judge arrived at the conclusion that the Appellant was guilty of the offences of conspiracy and Armed Robbery.
From these grounds of Appeal, the Appellant in his brief of argument dated 30/10/09, filed on the 2/11/09, but deemed properly filed on the 12/1/2010, which was adopted and relied upon by Olakunle Agbebi of counsel when this appeal came up for hearing, distilled the following three issues for the determination of this court viz.
(1) Whether the learned trial Judge was right in holding that, the Appellants statement Exhibit ‘D’ was confessional as regards the crime for which he was charged?
(2) Whether the Learned Trial Judge was right in dismissing the trio case submission and calling on the Appellant to defend himself?
(3) Whether the learned trial judge was right in holding that the appellant was right in holding that the appellant was “guilty as charged” when consideration is given to the weight of evidence
adduced before the trial court.”
The Respondent also filed a brief of argument dated 30/4/10, filed on the 4/5/10 but deemed properly filed on the 27/10/10. The Respondent at page 3 of the brief of argument, formulated the following 2 issues for the determination of this court as follows:-
(a) Whether Exhibit D is a confessional statement admitting the charge of conspiracy to commit armed robbery and armed robbery and if it was rightly relied upon by the trial Judge.
(b) Whether the Respondent proved its case against the Appellant beyond reasonable doubt.
Before going on to determine the arguments proffered on both sides by the parties, it is pertinent to comment on the issues as formulated by the Appellant’s counsel. As stated earlier, 2 grounds of appeal was filed by the Appellant in his Notice of Appeal filed on the 14/2/08. From the said grounds however the learned Appellant’s counsel formulated 3 issues.
This attitude remains a recurring decimal amongst learned counsel in these days, and the courts have frowned at. It is a case of bad drafting and counsel must heed to the correction. In Western Steel works Ltd. & anor. Vs. Iron & Steel Workers Union of Nigeria & anor. (1987) 2 SC 11 at 45 (Also reported in 1987)3 NWLR 284 at 304, Oputa JSC as he then was stated as follows:-
“I do not think it is permissible for an Appellant to introduce in his Brief issues not covered by any  ground of appeal. The idea of a Brief is to develop and amplify argument on points and issues covered by the grounds of appeal, for ultimately it is not on those grounds and on them alone that the appeal will have to be allowed or dismissed. An issue taken up in a Brief but which was made a ground of appeal ought to be ignored by an appellate court”.
Also see Oba Jacole Oyeyipo & anor v. Chief J.O. Oyinloye (1987) 2 SC 148 at 199. Also repoted in (1987) 1 NWLR 356 at 383; Engineering Enterprises of Niger Contractor Co. of Nigeria v. The Attorney General of Kaduna State (1987) 5 SC 27 at 51.
A cursory glance at issues formulated by the Appellants and the Respondents in their brief of argument which are similar and becomes conterminous in all respect, they raised the same question as to whether it was right on the part of the trial court to have placed reliance on Exhibit ‘D’ the confessional statement, admitting the charge of conspiracy to commit armed robbery and armed robbery, and whether the Respondent had proved its case against, the Appellant beyond reasonable doubt. In this regard therefore, I intend to be guided by 2 issues formulated by the Respondent at page 3 of the Respondents brief of argument viz-
(a) Whether Exhibit D is a confessional statement admitting the charge of conspiracy to commit armed robbery and armed robbery and if it was rightly retied upon by the trial judge.
(b) Whether the Respondent proved its case against the Appellant beyond reasonable doubt.
On Issue 1 learned counsel to the appellant submitted that section 36(5) of the constitution of the Federal Republic of Nigeria 1999 presumes an accused person innocent until he is proved guilty. Accordingly, the burden of proof placed on the prosecution is not discharged until the guilt of an accused person is properly established. see Idemudia vs.The State (1997)7 NWLR (Pt.610) 202 at 215 F-G; Esangbedo v. The State (1989) 4 NWLR (pt.113) 57.
Learned counsel further submitted that it is trite law that a confession must be direct and positive in relation to the offence for which the Appellant is charged. It must be an unequivocal admission of guilt See Daniels Vs. State (1991)8 NWLR (Pt.212)715.
Learned counsel further submitted that in this case a look at Exhibit ‘D’ will be very essential in determining whether it was indeed confessional. The learned trial judge did not give consideration to the fact the appellant only admitted to participating in selling drugged sachet water (pure water) on the invitation of the 1st accused person at this trial, one Obina John. This sale according to Exhibit ‘D’ was at the motor park. He never admitted to travelling with the passengers of either the Ifesinachi Luxurious Bus at Oremeji area of Ibadan nor the G.U.O. bus in which the passengers allegedly fell victim to robbers.
Learned counsel further submitted that the learned trial judge did not give consideration to the following fact that:-
(a) That the Appellant did not travel out of Ibadan during the Period in question.
(b) That the Appellant did not travel in the Ifesinachi Luxurious bus alleged by the 1st accused person to have been the bus robbed or any other luxurious bus for that matter.
(c) That the Appellant did not admit to having any gun neither was he aware or participate with persons who were armed with guns on any occasion at all.
(d) That the Appellant was completely unaware of any robbery of the G.U.O. bus at Idi-Ayunre Ibadan on 7/5/2003.
(e) That the presence of the Appellant at the scene were he was arrested stemmed not from him claiming his share of the spoils but from an attempt to participate with others who were celebrating their ill gotten gains. This does not make the Appellant one of the robbers that attacked the G.U.O. Luxurious bus on the night of the 7th of May, 2003. Exhibit ‘D’ is not a confession to the robbery.
Learned counsel to the Appellant submitted further that Exhibit ‘D’ falls short of the standard required of a confessional statement to ground conviction solely and that the learned trial Judge erred in relying on Exhibit ‘D’.
Learned counsel to the appellant submitted further that for a confessional statement to be relied on in grounding a conviction it must pass the six test set out in R. V. SYKES (1913)18 CR, APPR. 233.
Approved and applied in Dawa Vs. The State (1980) 8-11 S.C. 236.
(a) Is there anything outside it to show that it is true?
(b) Is it corroborated?
(c) Are statements made in it of fact, true as far, as they can be tested?
(d) Was the prisoner one who had the opportunity of committing the offence ?
(e) Is his confession possible?
(f) Is it consistent with other facts which have been ascertained and which have been proved? See Daniels v. State (supra).
Learned counsel to appellant further submitted that the appellant admitted selling drugged pure water at a motor park in Exhibit ‘D’ and the prosecution did not lead any evidence in proof of the fact that the drugged pure water was either sold to the G.U.O. bus or played any part at all in the robbery of G.U.O. bus. See: Gbadamosi v. state (1992) 9 NWLR (pt 266) 465 held at 479.
Learned counsel to the appellant submitted further that although the trial Judge in admitting Exhibit ‘D’ correctly stated that a trial within trial was not necessary in this case, the court failed to avert its mind to the fact that having admitted Exhibit ‘D’ it still had a duty to determine whether or not the accused made that statement at the end of trial’ See: Gbadamosi Vs. The State (supra).
Learned counsel further submitted that Exhibit ‘D’ being a document of fundamental basis upon which the learned trial Judge founded her conviction and sentence of the appellant this court should pass a verdict of discharge and acquittal and to allow the appeal.
Learned counsel to the Respondent in response to the arguments of the Learned appellant’s counsel on issue 1 submitted that the respondent before the trial court called sergeant olarinmoye oladepo as P.w 7 who testified that he investigated the allegations against the appellant and others. P.W7 tendered this statement of the Appellant and same was admitted in evidence without objection and marked as Exhibit D.
Learned counsel to the respondent further submitted that the relevant portions of Exhibit D are as follows:-
“I knew Obina (1st accused) early this year later I was invited by Obina that he has a business to introduce to me, Obina told me that he has a drug which he will inject the pure water and that anybody that drink it wilt sleep off. He asked me to help in selling the pure water which I did only once. Obina told me that immediately that person drink the water and the person sleep off that is the time they will carry out their operation. On Wednesday 8/5/2003 I was told that Obina and Onyekachi hit big money. I see Obina he confess to me that he has bought two new motor cycle at the rate of N160,000:00 Obina later gave N1,000 to wash the new machine actually I was aware that Obina, Onyekachi and others from Lagos succeed in robbing some people. I did not inform the police”
Learned counsel further submitted that Section 27(1)(2) of the Evidence Act defines a confession, that a confessional statement is the statement of any accused person which states or suggest that person committed the alleged offence. It is not necessary that the statement be a verbatim report of what transpired, nor for all the ingredients of the alleged offence to be present in the confessional statement. In Exhibit D the Appellant suggested that he participated in the robbery of the G.U.O. luxury bus on the 7th of May, 2003 and the following facts are suggested by Exhibit ‘D’.
(1) The Appellant knew the Co-accused before the date of robbery
(2) The 1st accused person (Obina) invited the Appellant into the robbery scheme and explained the modus operandi of among other things drugging water to be sold to Passengers.
(3) The Appellant knew that the aim of their association was to rob people of their belonging in moving buses.
(4) The Appellant participated in the robbery operation by selling drugged “pure water” to passengers at the motor Park.
(5) The Appellant became aware the day after the robbery that his accomplices had succeeded in robbing some People.
(6) The Appellant shared in the proceeds of the crime.
Learned counsel to respondent further submitted whether the trial Judge verified the truth of the confessional statement in Exhibit ‘D’ before placing reliance on it to convict the Appellant, the position of the law is that when a confessional statement is free voluntary, direct and positive it is  sufficient to sustain a conviction. But the trial court is obliged to test the veracity of the statement by seeking out any other piece of evidence however slight it may be which make it probable that the content of the confessional statement is true. See: Alarapa & Ors Vs. The State (2001) 5 NWLR (pt.705) 79 at 98 – 99; RV. Skyes (1913) 8 C.A.R. 233 at 235.
Learned counsel to the respondent submitted further that it is evident from the record particularly at pages 88-89 the learned trial Judge sought corroboration to the statement of the Appellant and his other Co-accused when he enumerated other pieces of evidence which were placed before the court during the course of the trial.
Learned counsel to the respondent finally urge the court to resolve issue 1 in favour of the respondent by holding that Exhibit ‘D’ is a confessional statement and the learned trial Judge was right in using same to arrive at his decision.
In reply to the respondents arguments to issue 1, learned counsel to the appellant in his reply brief, dated 28/10/10 filed on the 1/11/10 submitted that in paragraphs 3 on pages 3 and 4 of the respondent’s brief of argument (Issue 1) it is argued that Exhibit ‘D’ qualifies as a “confessional statement” for reasons stated therein. We maintain that a confessional statement must allude not only to the specific crime committed but also to the fact the person making the confession is admitting to being involved in that specific crime. See- Shande Vs. State (2005) 12 NWLR (Pt.393) 301; Omoju v. FRN (2008) 7 NWLR (pt.1085) 38.
Learned counsel to the appellant further submitted that a confession must be specific to the offence charged and not otherwise. Also there is a clear difference in law between an “accomplice” or an “accessory” before the fact in a criminal case and a person who participated in the spoils of a felony without reporting same to the authorities. The facts relied on by the Respondent in its argument will only fit the legal definition of a person who failed to report a felony and instead participated in the spoils and not an accomplice or an accessory before the fact as postulated by the Respondent. This is for the reason that even if this court accept that Exhibit D is a confessional statement, the only thing that can incriminate the Appellant therein would be his statement that he knew that a felony had been committed but did not report same to the police.
See:- Blacks Law Dictionary (Eight Edition) definition of an accomplice. Also See. Okosi Vs. State (1989) 1 NWLR (Pt.100)642 at 648. Also See- Blacks Law Dictionary, definition of “accessory after the fact”.
Learned counsel to the appellant further submitted that even if the respondent is to succeed in its argument that the Appellant is an accomplice or an accessory before the fact then evidence ought to have been red tying him to the specific offence charged. It is not for the appellant to confess to one set of facts and then the respondent tries to use this set of facts for every robbery of Luxurious buses that occurred on that day or during the period. The reliance of section 27 of the Evidence Act cannot therefore avail the respondent as it refers to the specific offence charged. The inference is an inference to the offence charged.
Learned counsel further submitted that By Section 36(5) of the constitution of the Federal Republic of Nigeria 1999 and section 138 of the Evidence Act cap. E14 Laws of the Federation of Nigeria 2004, the onus placed on the Respondent to prove the guilt of the appellant is not satisfied by guess work, alluding to fanciful possibilities and trying to stretch the facts to fit the case. It can only be discharged by direct or cogent circumstantial evidence that proves beyond reasonable doubt that the Appellant committed the crime.
Learned counsel finally submitted that it is not the duty of the trial court to go on an adventure of discovery to arrive at the guilt or otherwise of the appellant. It is a duty which rest solely on the Respondent.
The court examined carefully the arguments proffered on both sides, the Appellant and the state in relation to Issue 1 which deals with the confessional statement of the Appellant admitted and marked as Exhibit D. It is quite pertinent to mention that the issue of the admissibility of Exhibit ‘D’ was not made an issue in this appeal. It is agreed without any question that Exhibit D was obtained voluntarily and a clear representation of what the appellant stated to the police. What is of the issue in this appeal however is the weight which the learned trial Judge attached to its content which led to the final conviction of the appellant by the Lower Court. For the avoidance of any doubt, this court will repeat the relevant portion of Exhibit ‘D’ made by the appellant as follows:-
‘I knew Obina (1st accused) early this. Later I was invited by Obina that he has a business to introduce to me. Obina told me that he has a drug which he will inject the pure water and that anybody that drink it will sleep off. He asked me to help him selling the pure water which I did once. Obina told me that immediately that person drink the water and the person sleep off that is the time they will carry out their operation. On Wednesday 8/6/2003 I was told that Obina and Onyekachi hit big money. I see obina he confess to me that he has bought two new motor cycle at the rate of N160,000:00 Obina later gave me N1,000:00 to wash the new machine actually I was aware that Obina Onyekachi and others from Lagos succeeded in robbing some people. I did not inform the police.”
On the operation of admissibility and weight, the supreme court in the case of Oba E.A Ipinlaiye II Vs., Chief Julius Olukotun & Ors (1996)39 LRCN 1023 at pp.1041-1042 stated as follows:-
“An issue of admissibility of evidence is a question of Law for the Judge of Law to decide on. The issue of what weight to be attached to evidence already admitted is for the Judges of facts. The jury in a jury trial or for the Judge sitting alone without a jury. The two concepts are distinct and separate from one another.”
The learned counsel to appellant strenuously tried to show that there was no correlation between Exhibit ‘D’ its content, and the robbery operation which to place on the 7th of May, 2002 at Idi-Ayunre along the Ibadan Ijebu-Ode Road Ibadan on board a G.U.O. Luxury bus. Better still the learned counsel to the appellant mentioned from the content of Exhibit ‘D’ to the evidence of the prosecution witnesses the prosecution has not established a nexus between the role of the appellant in Exhibit ‘D’ as a vendor of the drugged pure water and the robbery operation.
The respondent on the other hand mentioned there was a direct nexus between the vendor who had a full Explanation from Obina (1st accused) on the modus operandi of robbery scheme amongst other things drugging water to be sold to passengers and that the appellant knew that the aim of their association was to rob people of their belonging in moving buses.
It is very clear from the record before the court the appellant admitted categorically having sold the drugged water in the motor park for one day. He also became aware the day after that the other accused persons had succeeded in robbing some people, the appellant said he was given a share in the proceeds of the crime “to wash those motor cycles bought by the, 1st accused person Obina” “from the proceeds of the robbery”
From the summary of those facts stated above, I am in full agreement with trial Judge in his judgment convicting the accused person along with the other accused persons of the offence of robbery as charged when he stated at page 92 of the judgment paragraph 2.
“The evidence of the 3rd accused in court did not tally with his statement to the police. Before I go further, let me state that an accused person may not be physically present during the actual commission of an offence but where he has aided another or does anything to enable another to commit an offence, he is deemed to be a principal offender. See:- S.7CC Vol, II Laws of Oyo State 2000.”
The key words in the Law cited above are “where he had aided Another” or does anything to enable another to commit an offence.” No doubt the assistance rendered by the appellant then (3rd accused) to vendor drugged water with the aim of putting innocent people to sleep off, to ease the process of robbing their property is within the anticipation of the Law cited by the learned trial Judge.
Also as a rider to Law cited above by the learned trial Judge the appellant by Exhibit ‘D’ cannot escape incrimination in offence of robbery committed under the Doctrine of acquiescence. It is settled law that a part cannot take advantage of an irregularity which he has acquiesced to.
From the records, the appellant agreed with 1st accused Obina, that the method of carrying out the offence of robbery marshaled out by the 1st accused was by selling drugged water to innocent victims to make them fell asleep no sooner after its consumption and thus it makes them very easy targets to rob their property. The same appellant cannot turn around to say I agreed to partake in the robbery by selling drugged pure water to innocent passengers and did not agreed to the same accused persons employing other methods including the use of guns or other offensive weapons. Since he had consented to the use of the first method of drugged water it would be too late in the day for the appellant to claim innocence if some other methods were employed by the other accused person. See: Akhiwu v. The principal Lotteries Officer Mid-Western State & Anor (1972) 1 All NLR (pt.1) 229 at P.234, and  Adebayo & Ors Vs. Shonowo & Ors (1969) 1 all NLR 176, where an irregular procedure was followed in commencing an action, the Supreme Court at page 190 stated as follows:
“Even if the procedure adopted by the applicant Adebayo were wrong we think that it is now too late in the day for the directors to complain about it.
They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case…”
See also Ashiru Noibi v. R.J. Fikolati & Anor (1987) 3 SC 105 at 121.
On a final note on this issue, I agree with the findings of the Lower Court in respect thereof. I shall and do hereby resolve issue 1 in favour of the Respondent and against the Appellant.
Issue 2 is as to whether the Respondent proved its case against the Appellant beyond reasonable doubt. In view of the resolution of issue 1 in favour of the Respondent allowing the conviction made by the Lower court against the Appellant based on his confessional statement admitting the charge of conspiracy to commit armed robbery, and armed robbery as contained in Exhibit ‘D’ to ask of any proof beyond reasonable doubt is no longer necessary, as it will amount to a mere academic exercise only. Issue 2 also resolved in favour of the Respondent.
In the final analysis, the conviction done by Esan J. of the High court of oyo state Ibadan Division delivered on the 9th day of November, 2006 in suit No. 1/46c/2004 is hereby affirmed, but the sentence of the Appellant (3rd accused) under section 1(2)(a) of the Act to death by firing squad is hereby substituted by this court to sentence under Section 1(1) of the Act to a term of imprisonment for life.

STANLEY SHENKO ALAGOA, J.C.A.: I read in draft the lead Judgment of my brother Sidi Dauda Bage (J.C.A.), just delivered and I am also of the view that the sentence of death passed on the Appellant be commuted to imprisonment for life. I also abide by the other order/s contained in the said lead Judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the judgment just pronounced by my learned brother, Bage, JCA, with which I agree and wish to add some few words by way of emphasis.
Exhibit D, the voluntary statement of the appellant to the police, was the backbone of respondent’s case of conspiracy against appellant in the court below. It reads: 2
“I knew Obina (1st accused) early this year later I was invited by Obina that he has a business to introduce to me, Obina told me that he has a drug which he will inject the pure water and that anybody that drink it will sleep off. He asked me to help in selling the pure water which I did only once.
Obina told me that immediately that person drink the water and the person sleep off that is the time they will carry out their operation. On Wednesday 8/5/2003 I was told that Obina and Onyekachui hit big money. I see Obina he confess to me that he has bought two new motor cycle at the rate of N160,000.00 Obina later gave N1,000 to wash the new machine actually I was aware that Obina, Onyekachi and others from Lagos succeeded in robbing some people. I did not inform the Police”
Exhibit D’ does not, at first sight, appear confessional, as rightly submitted by Mr Agbebi for appellant. Recourse to the definition of confession under Section 27 (1) of the Evidence Act is therefore necessary:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
The crime upon which appellant was charged and convicted was conspiracy to commit armed robbery. A deep look at Exhibit D’ however, suggested “the inference” that appellant agreed with others to sell drugged water to unsuspecting innocent way-farers or travelers to induce or put them to sleep in order to facilitate their confederates to rob the steeping travelers. The appellant was a party to the scheme and admitted selling drugged water to travelers on one occasion and that he benefited from the proceeds of the robbery after it was successfully executed by the other members of their group.
The appellant was, therefore, one of the links in the chain of the agreement mutually struck by the group to lay the foundation for the commission of the offence of robbery by carrying out the preliminary and foundational assignment of selling drugged water to way-farers which, in my considered opinion, made him one of the conspirators in the incorporate chain of conspiracy – see the apt works of Ellen S. Podgor and Jerold H. Israel called white collar crime in a Nutshell (2nd edition, 1997) at Page 52:
“In a chain conspiracy, the court looks to whether the parties serve as links in a chain. In Blumenthal v. United States (1947), the Supreme Court found that the parties had agreed to sell liquor at prices exceeding the ceiling set by regulations of the office of Price administration. The court found the agreements were steps in the formulation of one larger general conspiracy.By reason of all having knowledge of the plan’s general scope and common end, the disposing of Whiskey, they could be drawn together in a single conspiracy”.(my emphasis).
Admittedly conspiracy is not an easy offence to define. All would depend on the circumstances of each case, which may decide whether the offence of conspiracy has been committed – See Krulewitch v United States 336 U.S.440 at 445-448, 69 S. Ct, 716 at 719-720, where Associate Justice Jackson (Jackson, J) held:
“Conspiracy is an elastic, sprawling and pervasive offense… so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon – like takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always predominantly mental in composition because it consists primarily of a meeting of minds and an intent. (my emphasis) See our decision (Kryluna Division) in Ibrahim v. The State (2011) 1 NWLR (pt. 1227) at 33. See also our decision (Lagos Division) in the case of Usufu v. The State (2007) 1 NWLR (pt. 1020) 94 at 124 per Galinje, JCA, with the concurrence of Salami JCA, (now PCA), and Agbo, JCA, as follows:
“Black’s Law Dictionary, 6th Edition defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is unlawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. Combination is defined by the same dictionary as the union or association of two or more persons for the attainment of some common end. Union or association can only be formed through agreement of members. In Com. v. Dyer 243 Massachusetts Report 472, it was held that a crime of conspiracy is distinct from the crime contemplated by the conspiracy. The gist of the offence of conspiracy therefore lies not in the doing of the act or the forming of the scheme or agreement between the parties.The external or overt act of the crime of conspiracy is the concert by which mutual consent to a common purpose is exchanged”. (my emphasis)
See again Adebiyi Majekodunmi v. The Queen (1952) 14 WACA 64 at 66 thus:
“In our view a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted, and we are fortified in that view by the Judgment of Lord Coleridge, C.J., in Regina v. Whitchurch (2), and by the generally accepted definition of the offence of conspiracy given by Willes, J., on behalf of the Judges in Mulcahy v. R. (3), where he said:-
” A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.”
The gist of the offence of conspiracy lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. As Bruce, J., says in Rex v. Plummer (4), “the external or overt act of the crime is concert, by which mutual consent to a common purpose is exchanged”.
There was, therefore, sufficient evidence in the voluntary confession statement of appellant in Exhibit D to overrule the no case submission in respect of the offence of conspiracy and, the court below was, in my view, right in overruling the said submission. See Section 5 of the Robbery and Firearms Act thus:
“Any person who –
a) aids, counsels, abets or procures any person to commit an offence under section 1, 2, 3 or 4 of this Act or
b) Conspires with any person to commit such an offence, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act”. (my emphasis)
The court below was, also, right to convict the appellant of the offence of conspiracy to commit armed robbery on his voluntary confession in Exhibit D – see Ibrahim (supra) at 34. The appeal is, accordingly, dismissed. I abide by the consequential orders in the judgment of my learned brother, Bage, JCA.