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SOMEFUN v. STATE (2021)

SOMEFUN v. STATE

(2021)LCN/15572(CA)

In The Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 09, 2021

CA/IB/112C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

KAZEEM SOMEFUN APPELANT(S)

And

THE STATE RESPONDENT(S)

 RATIO:

PROOF OF GUILT OF AN ACCUSED

The Appellant has contended in this appeal that the essential ingredients of the offences charged were not proved beyond reasonable doubt and that the lower Court was wrong to convict. For good measure, it has been further contended that the lower Court was wrong in its application of the doctrine of last seen, relying on the Appellant’s confessional statements which were not made voluntarily and were contradictory; and that the said confessional statements having been retracted, there was no other evidence outside the confession corroborating the same.

It is rudimentary law that, there are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 13. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

MEANING OF CIRCUMSTANTIAL EVIDENCE

In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and univocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed, the facts must be incompatible with the innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: NWEKE vs. THE STATE (supra) at 18. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

MEANING OF CONSPIRACY

Now, conspiracy as an offence is the agreement by two or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA vs. STATE (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23-24, Fatayi-Williams, J.S.C. (as he then was) stated as follows:
“Conspiracy as an offence is nowhere defined in the Criminal Code….It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. 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, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PROOF OF CONSPIRACY

The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act, had in fact been committed. Actual commission of the offence may however show the common intention formed before the offence was committed and therefore be proof of the conspiracy: JOHN vs. THE STATE (2016) LPELR (40103) 1 at 10. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. This is so because, persons who agree to do an illegal act or achieve a legitimate end by illegal means do not invite a witness or witnesses to attest to their agreement. See JOHN vs. THE STATE (supra) at 10, OBIAKOR vs. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. FRN (2001) 53 WRN 20 at 54 and THE STATE vs. OSOBA (2004) 21 WRN 113.
​Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose, whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See SULE vs. THE STATE (2009) 17 NWLR (PT 1169) 33 and ADEJOBI vs. THE STATE (2011) LPELR (97) 1 at 36. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See ODUNEYE vs. THE STATE (2001) 13 WRN 88.
The general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See LAWSON vs. THE STATE (1975) 4 SC 115 at 123, AKANO vs. A-G BENDEL STATE (1988) 2 NWLR (PT 201) 232, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) 466. The focal point of the authorities is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See KAZEEM vs. THE STATE (2009) 29 WRN 43 and SALAWU vs. THE STATE (2010) LPELR (9106) 1 at 35-36. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INGREDIENTS OF THE OFFENCE OF MURDER

The learned counsel on both sides of the divide have redacted the essential ingredients to establish in a charge for murder, id est,
1. That the deceased is dead
2. That the death of the deceased is the result of the act or omission of the accused person (the Appellant herein)
3. That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the probable consequence.
See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29. In order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. The prosecution has to establish not only that the act of the defendant caused the death of the deceased but that in actual fact the deceased died as a result of the act of the defendant to the exclusion of all other possibilities. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ADMISSIBILITY OF A RETRACTED CONFESSIONAL  STATEMENT

The Appellant’s statements, Exhibits G, J (in Yoruba) and J1 (English translation) are confessional statements. The Appellant retracted the said statements; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (supra) at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE TEST FOR DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT

Coming back to what the law enjoins a Court to do when it is faced with a retracted confessional statement; the law is that a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as they can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DUTY OF AN ACCUSED PERSON WHO SEEKS TO RETRACT HIS CONFESSIONAL STATEMENT

It is trite that an accused person who retracts or resiles his confessional statement has a duty to explain to the Court as part of his defence the reason for the inconsistency. He shall lead evidence to establish that the confession contained in his extra judicial statement cannot be correct or true.
​This he can do by establishing any of the following:
a) That he was not correctly recorded.
b) That he, in fact did not make the statement.
c) That he was unsettled in mind at the time he made the statement.
d) That he was induced to make the statement.
See OKOH VS STATE (2014) 8 NWLR (Pt. 1410) 502; ADISA VS STATE (2015) 4 NWLR (Pt. 1450) 475; MUSA VS STATE (2018) 13 NWLR (Pt. 1636) 307; HASSAN VS STATE (2001) 15 NWLR (Pt. 735) 184; STATE VS GWANGWAN (2015) 13 NWLR (Pt. 1477) 600; NGUMA VS ATTORNEY GENERAL, IMO STATE (2014) 7 NWLR (Pt. 1405) 119 and ONWUMERE VS STATE (1991) 4 NWLR (Pt. 186) 428 at 440. PER FOLASADE AYODEJI OJO, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was one of three accused persons who were arraigned before the High Court of Ogun State in CHARGE NO. HCS/3C/2008: THE STATE vs. KEHINDE SESAN & ORS. The Information preferred against the accused persons was three counts of conspiracy to commit murder, murder and accessory after the fact to murder. The Appellant, who was the 2nd accused person at the lower Court was charged and tried with the 1st accused person on the counts of conspiracy to commit murder and murder. The 3rd accused person was charged alone on the count of accessory after the fact to murder.

​In the course of the proceedings at the lower Court, the 3rd accused person, who was the Appellant’s father died and count three of the Information was consequently struck out. The trial of the Appellant and the 1st accused person continued to conclusion on the two counts of the charge against them and at the end of the trial, the lower Court, Coram Judice: Ogunfowora, J., convicted them as charged and sentenced them to death. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by his original Notice of Appeal filed on 7th June, 2016, and which is at pages 154-155 of the Records. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 5th July, 2019 but deemed as properly filed on 27th May, 2020. The scarified judgment of the lower Court which was delivered on 28th April, 2016 is at pages 137-153 of the Records.

The Record of Appeal was compiled and transmitted on 26th March, 2019, but deemed as properly compiled and transmitted on 27th May, 2020. The parties filed and exchanged briefs of argument and at the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant’s brief was filed on 5th July, 2019, but deemed as properly filed on 27th May, 2020. The Appellant nominated two issues for determination in the appeal, as follows:
“1. Whether the decision of the trial Court was reasonable, having regard to the weight of evidence adduced before it to have decided that the prosecution has proved beyond reasonable doubt the ingredients of the offence of conspiracy to commit murder and murder against the Appellant. (Distilled from ground 1 & 2 of the grounds of Appeal).
2. Whether the trial Court was not in error to have relied solely on the retracted confessional statement (Exhibit G & J1) credited to the Appellant to convict and sentence the appellant for armed robbery and conspiracy to commit armed robbery. (Distilled from ground 3 of the grounds of Appeal)”

The Respondent filed its brief of argument on 18th September, 2020, and the same was deemed as properly filed on 16th March, 2021. The Respondent crafted a sole issue for determination in the appeal, namely:
“Whether the learned trial Court was right in upholding that the prosecution has proven the offence of Murder against the Appellant beyond reasonable doubt while relying on the confessional statement of the Appellant in convicting him same having been corroborated by circumstantial evidence.”

​I have given due consideration to the issues distilled by the parties and I find the sole issue formulated by the Respondent succinct and apt, especially as the second issue distilled by the Appellant is totally out of sync in the diacritical circumstances of this matter, since the Appellant was not charged with armed robbery and conspiracy to commit armed robbery which is the subject of the said second issue. Accordingly, it is on the basis of the issue distilled by the Respondent that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE FOR DETERMINATION
Whether the learned trial Court was right in upholding that the prosecution has proven the offence of Murder against the Appellant beyond reasonable doubt while relying on the confessional statement of the Appellant in convicting him same having been corroborated by circumstantial evidence.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong to hold that the ingredients of the offence of conspiracy to commit murder and murder were proved beyond reasonable doubt, being the standard of proof in criminal cases vide WILLIAMS vs. THE STATE (1992) 10 SCNJ 74 at 75 Ratio 1, KIM vs. THE STATE (1992) 4 SCNJ 81 at 84, ODUNEYE vs. THE STATE (2001) SCQR 1 at 3 Ratio 5, UBANGI vs. THE STATE (2004) 1 MJ.S.C. 92 at 95 Ratio 3 and THE STATE vs. OLADOTUN (2011) 10 NWLR (PT 1256) 572 at 188 [sic]. The three essential ingredients of the offence of murder as set out in IGABELE vs. THE STATE (2006) 2 FWLR (PT 315) 3039 at 3041 were referred to and it was stated that there was no direct eyewitness evidence at the trial in respect of the offence charged and that the conviction rested on circumstantial evidence and the confessional statement of the Appellant.

It was conceded that the first ingredient, id est, that the deceased died was proved, but that the lower Court was in error when it held that the second and third ingredients of the offence of murder were established by the circumstantial evidence and confessional statements of the Appellant. It was opined that the circumstantial evidence that would ground a conviction must be unequivocal, positive, unmistaken and point irresistibly to the fact that the Appellant committed the offence. The case of IGABELE vs. THE STATE (2006) 25 NSCQR 321 at 349 was relied upon.

​It was contended that the lower Court was wrong to have applied the doctrine of last seen as the circumstantial evidence, as well as the confessional statements did not fit into the doctrine of last seen, since none of the prosecution witnesses testified that the deceased was last seen with the Appellant. It was stated that the fact that the motorcycle of the deceased was found with the 1st accused person at the lower Court whose arrest led to the arrest of the Appellant, does not support proof of the doctrine of last seen which would call for a rebuttal on the part of the Appellant; just as the application of the doctrine of last seen based on the extra-judicial statements has no support in law. It was therefore asserted that, the circumstantial evidence based on the doctrine of last seen employed by the lower Court to convict the Appellant was not proved beyond reasonable doubt.

It was further submitted that the confessional statements which the lower Court relied upon in convicting the Appellant were not made voluntarily and that the lower Court ought to have rejected the same in evidence for having been made under duress and oppression. Section 29 (2) and (5) of the Evidence Act and the case of D & C BUILDERS LTD. vs. REES (1965) 3 ALL ER 837 CA as well as Section 34 (1) (a) of the 1999 Constitution as amended, which forbids inhuman and degrading treatment and the case of MOGAJI vs. BOARD OF CUSTOMS AND EXCISE (1982) 3 NCLR 552 were called in aid. It was posited that the two statements credited to the Appellant, Exhibits G and J1, were made at different times and contradicted each other as to the involvement of the Appellant in the alleged offences, such that they came within the purview of Section 29 (2) (b) of the Evidence Act which stipulates that a Court can draw an inference that the statements are unreliable. It was highlighted that the contradiction is that, it was stated in Exhibit J1 that the Appellant held the two legs of the deceased while the 1st accused person strangled him, which is not in Exhibit G. The case of OLAYINKA vs. THE STATE (2007) 9 NWLR (PT 1040) 561 at 578-579 was referred to.

The Appellant further contended that there was no corroborative evidence outside the confessional statements on which the veracity of the retracted confessional statements could be ascertained. The case of NWAEBONYI vs. THE STATE (1994) 5 SCNJ 86 was cited in support. It was asserted that the first confessional statement, Exhibit G, disclosed no ingredient of the commission of the offences charged, and that a dispassionate examination of the second confessional statement, Exhibit J1, revealed no admission of guilt on the part of the Appellant. It was opined that the medical report, Exhibit K, issued by the PW5, stated that the deceased died of a ritual killing and furthermore, that the motorcycle of the deceased was not found with the Appellant so there is no evidence showing that the confession is possible. The case of OMOGODO vs. THE STATE (1977-1988) VOL. 2 SCJE 141 at 150 was relied upon.

The Appellant further argues that the lower Court was in error when it relied solely on the retracted confessional statements, Exhibits G and J1, to convict and sentence the Appellant. It was conceded that a Court can convict on a retracted confessional statement where the statement is found to be relevant, positive, true, unequivocal and consistent with other relevant facts outside the confessional statement vide BATURE vs. THE STATE (1994) 1 NWLR (PT 320) 267 at 283, FASINU vs. THE STATE (2016) 12 NWLR (PT 1527) 414 at 434 and LASISI vs. THE STATE (2013) 9 NWLR (PT 1338) 74 at 93. The Appellant posited that the confession is not possible since it was not consistent with other facts ascertained and that the reliance by the lower Court on the same was an error which occasioned a miscarriage of justice since the confessional statement did not pass the litmus test laid down in OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that in criminal trials, the onus on the prosecution is to prove the offence charged beyond reasonable doubt vide ABIRIFON vs. THE STATE (2013) 9 SCM 1 at 5 and RICHARD vs. THE STATE (2013) LPELR 22137 at 14-15. The ingredients of the offence of murder were referred to and the methods by which the guilt of an accused person can be established were restated. The cases of OMINI vs. THE STATE (1999) 9 SC 1 at 11, AKINLOLU vs. THE STATE (2015) LPELR 25986 (SC) and IGABELE vs. THE STATE (2006) 2 SC (PT II) 61 at 69 were referred to. It was posited that the Prosecution proved the charge against the Appellant by reliance on circumstantial evidence and the confessional statements of the Appellant.

​It was further submitted that it is not contested that the deceased is dead and that the testimony of PW1, PW2 and PW6 [sic], as well as the confessional statements of the Appellant established the second ingredient of proof that, the death of the deceased was caused by the Appellant. The Appellant’s confessional statement, Exhibit J1, was said to have graphically described how the Appellant and his co-accused killed the deceased by strangulation; and that what the Appellant did thereafter and the actions taken thereafter corroborated the testimony of the PW2 who examined the deceased’s exhumed body. Furthermore, that there is evidence that it was the Appellant who led the Police to the scene where the corpse of the deceased was recovered.

The Respondent maintained that a trial Court can rely solely on the confessional statement of an accused person to convict where the same is direct, positive and proved. The case of AKPA vs. THE STATE (2008) 8 SCM 68 at 70 was relied upon. It was further argued that the confessional statements of the Appellant were admitted in evidence after a trial within trial, the lower Court having found that the statements were voluntarily made. The cases of OGUDO vs. THE STATE (2011) 11-12 (PT 1) SCM 209 at 212, LASISI vs. THE STATE (2013) 6 SCM 97 at 113 and JIMOH vs. THE STATE (2014) 11 SCM 216 were cited in support. It was also argued that as required by law, the lower Court further sought other evidence that corroborated the confessional statement before it convicted the Appellant based on the said confessional statements. The case of OSENI vs. THE STATE (2012) 4 SCM 150 was called in aid.

The facts in the evidence outside the confessional statements were said to include that the motorcycle of the deceased was recovered from the Appellant and his co-accused and that it was the Appellant who led the police to where the corpse of the deceased was recovered. The lower Court, it was asserted, rightly convicted on the said confessional statements, which is the best evidence in criminal procedure, and which when admitted in evidence after a trial within trial will be difficult for an appellate Court to upturn since the process is purely based on credibility of witnesses, which an appellate Court is not privy to. The cases of ISMAIL vs. THE STATE (2011) 10 SCM 35 at 39, LASISI vs. THE STATE (supra) at 113 and NWACHUKWU vs. THE STATE (2007) 12 SCM (PT 2) 447 at 455 were referred to.

It is the further contention of the Respondent that, a confession of guilt is sufficient to warrant conviction without corroborative evidence, even though it is desirable to have outside the confession, evidence of circumstances, no matter how slight, which make it probable that the confession is possible, be it direct or circumstantial evidence vide DAGAYYA vs. THE STATE (2006) 2 SCM 33 at 67. It was asserted that the evidence of the prosecution witnesses corroborated the confessional statements and that the lower Court, having perfectly evaluated the evidence before it arrived at a conviction; the findings which are based on positive and cogent evidence, linking the Appellant with the death of the deceased, are not to be disturbed. It was conclusively submitted that, the evidence proved the conspiracy charged as the prosecution evidence established the agreement of two or more persons to carry out an unlawful purpose, and that the confessional statements of the Appellant and his co-accused showed that they had the consensus to commit a crime. The cases of NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) [no page stated], BELLO vs. THE STATE (2010) 12 SCM (PT 2) 28 at 34 ​and OBIAKOR vs. THE STATE (2002) 6 SC (PT III) 33 at 39-40 were relied upon.

RESOLUTION
As can be garnered from the cold printed Records, the case of the Prosecution is that the deceased, a commercial motorcycle operator went for his day’s business, but did not return home. As a result, his wife reported to the PW1, who organised a search party for the deceased. The search was fruitless, consequent upon which the report of a missing person was lodged with the Police. Subsequently, the 1st accused person was apprehended as he was trying to sell the motorcycle which the deceased used for his business as a commercial motorcycle operator. Flowing from the arrest of the 1st accused person, investigations led to the arrest of the Appellant. In the course of investigations by the Police, the Appellant took them to where the deceased was buried in a shallow grave. The Appellant made two confessional statements, the first one at Ikenne Divisional Police Headquarters and the second one at State CID, Eleweran, Abeokuta, upon the transfer of the matter from the Ikenne Division. The statements were admitted in evidence after the conduct of a voir dire.

The defence of the Appellant is a denial of the offences charged, contending that he was being framed by a chieftain of the O’dua Peoples’ Congress (OPC) on account of a chieftaincy tussle between the said OPC chieftain and the Appellant’s father. The Appellant retracted and resiled from his confessional statements.

The Information preferred against the Appellant reads as follows:
“COUNT I
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT MURDER Contrary to Section 324 of the Criminal Code Law (Cap. 29) Laws of Ogun State of Nigeria, 1978.
PARTICULARS OF OFFENCE
That you KEHINDE SESAN (M) and KAZEEM SHOMEFUN (M) on or about the 6th day of August, 2005 at Shasha Street, Iperu Remo, in the Sagamu Judicial Division, conspired to commit murder.
COUNT II
STATEMENT OF OFFENCE
MURDER, Contrary to Section 316 (1) and punishable under Section 319(1) of the Criminal Code Law (Cap. 29) Laws of Ogun State of Nigeria, 1978.
PARTICULARS OF OFFENCE
That you KEHINDE SESAN (M) and KAZEEM SHOMEFUN (M) on or about the 6th day of August, 2005, at Shasha Street, Iperu Remo, in the Sagamu Judicial Division, murdered John Sampson”

It is exoteric that in criminal trials, the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the defendant, then the case is proved beyond reasonable doubt. In the words of Oputa, J.S.C. (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C.1 or (1987) LPELR (714) 1 at 12-13:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373:-
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence-“of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.”
​Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. At nisi prius, it was held that the prosecution discharged the burden on it, consequent upon which the Appellant was convicted as charged. The Appellant has contended in this appeal that the essential ingredients of the offences charged were not proved beyond reasonable doubt and that the lower Court was wrong to convict. For good measure, it has been further contended that the lower Court was wrong in its application of the doctrine of last seen, relying on the Appellant’s confessional statements which were not made voluntarily and were contradictory; and that the said confessional statements having been retracted, there was no other evidence outside the confession corroborating the same.

It is rudimentary law that, there are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 13.

​As recognised by the parties and indeed as held by the lower Court at pages 141-142 of the Records, there was no eyewitness testimony in this matter, so it was only on the basis of the Appellant’s confessional statements and circumstantial evidence that the lower Court arrived at a conviction. The legal position seems to be that for circumstantial evidence to amount to proof of a case beyond reasonable doubt, such circumstantial evidence must prove the proposition which it seeks to establish with the accuracy of mathematics: FATOYINBO vs. A-G WESTERN NIGERIA (1966) NMLR 4 and AIGBADION vs. THE STATE (2000) 7 NWLR (PT 666) 686. In NWEKE vs. THE STATE (2001) LPELR (2119) 1 at 11, the apex Court held that:
“Circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
See also ADIE vs. THE STATE (1980) 1-2 SC 116 and UKORAH vs. THE STATE (1977) 4 SC 167.
​In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and univocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed, the facts must be incompatible with the innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: NWEKE vs. THE STATE (supra) at 18. We will interrogate in a trice, whether the lower Court arrived at the correct decision when it held that the Appellant’s confessional statements and the circumstantial evidence established the offences charged beyond reasonable doubt and consequently convicted the Appellant.

The Appellant is charged in count one with conspiracy to commit murder. Now, conspiracy as an offence is the agreement by two or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA vs. STATE (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23-24, Fatayi-Williams, J.S.C. (as he then was) stated as follows:
“Conspiracy as an offence is nowhere defined in the Criminal Code….It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. 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, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”

The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act, had in fact been committed. Actual commission of the offence may however show the common intention formed before the offence was committed and therefore be proof of the conspiracy: JOHN vs. THE STATE (2016) LPELR (40103) 1 at 10. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. This is so because, persons who agree to do an illegal act or achieve a legitimate end by illegal means do not invite a witness or witnesses to attest to their agreement. See JOHN vs. THE STATE (supra) at 10, OBIAKOR vs. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI vs. FRN (2001) 53 WRN 20 at 54 and THE STATE vs. OSOBA (2004) 21 WRN 113.
​Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose, whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See SULE vs. THE STATE (2009) 17 NWLR (PT 1169) 33 and ADEJOBI vs. THE STATE (2011) LPELR (97) 1 at 36. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See ODUNEYE vs. THE STATE (2001) 13 WRN 88.
The general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See LAWSON vs. THE STATE (1975) 4 SC 115 at 123, AKANO vs. A-G BENDEL STATE (1988) 2 NWLR (PT 201) 232, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) 466. The focal point of the authorities is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See KAZEEM vs. THE STATE (2009) 29 WRN 43 and SALAWU vs. THE STATE (2010) LPELR (9106) 1 at 35-36.

At page 139 of the Records, the lower Court stated that it would first consider the substantive offence of murder; this the lower Court did, and having held that the substantive offence of murder was proved, it equally held at page 153 of the Records that the conspiracy charged was also proved. I will follow the approach of the lower Court by first considering the substantive offence of murder: OSETOLA vs. THE STATE (2012) 12 SCM (PT 2) 347 at 365-366 and JIMOH vs. THE STATE (2014) 10 NWLR (PT 1414) 105 at 135-136.

​The learned counsel on both sides of the divide have redacted the essential ingredients to establish in a charge for murder, id est,
1. That the deceased is dead
2. That the death of the deceased is the result of the act or omission of the accused person (the Appellant herein)
3. That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the probable consequence.
See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29. In order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. The prosecution has to establish not only that the act of the defendant caused the death of the deceased but that in actual fact the deceased died as a result of the act of the defendant to the exclusion of all other possibilities.

​From the disceptation in this matter, there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased, John Sampson is dead. The contention is with regard to the second and third ingredients. In its judgment, the lower Court held that the Prosecution established the offences, charged beyond reasonable doubt and after due consideration and evaluation of the evidence with regard to the second and third ingredients, the lower Court conclusively held as follows at pages 152 of the Records:
“I thus hold that the 2nd ingredient that the acts of the Accused persons can be linked with the death of the deceased has been proved as their confessional statements having passed the laid down tests solely suffice to ground their conviction and which truth has been ascertained from other pieces of evidence as reviewed above as it is clear from the said statements that they killed the deceased person whose head was later decapitated as his body was mutilated, as I must also find that, the evidence from their confessional statements had rather fortified the fact that they were the last persons who saw the deceased alive rather than rebut the presumption which ordinarily arises. I also hold that, the confessional statements of the Accused Persons as to how the deceased died suffice to render as unnecessary the otherwise unhelpful nature of the evidence of PW5, the medical doctor who testified as he only saw the decomposed body of the deceased in the bush where it was deposited, after 2 months, on 13th October, 2005, as this does not militate against the finding as this is one of the situations where medical evidence is unnecessary.
I must, of course, in the light of the above also hold that the third ingredient has been proved as the requisite intention to kill the deceased is discernible from their confessional statements as well as from the presumption that they were the last person seen with the deceased person and which presumption they were unable to successfully rebut.
I accordingly find the Accused Persons guilty of the count of killing John Samson preferred against them.”

​In arriving at its decision, the lower Court considered in extenso, the confessional statements of the Appellant. I iterate that a confessional statement is one of the ways or methods of establishing the guilt of an accused person. The Appellant has contended that the confessional statements which were admitted after a voir dire were not made voluntarily and that they were contradictory; and that having retracted the confession at the trial, there was no other evidence to corroborate the confession.

It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A.G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173, IDOWU vs. THE STATE (2000) 7 SC (PT II) 50 at 62-63, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and 636, KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, OSENI vs. THE STATE (supra) at 374 and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385.

​The Appellant’s statements, Exhibits G, J (in Yoruba) and J1 (English translation) are confessional statements. The Appellant retracted the said statements; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (supra) at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93. I will return shortly to consider what the law enjoins a Court to do when faced with a retracted confessional statement before it can convict on it, but first, let me consider the Appellant’s submission that the confessional statements were not made voluntarily and that they were contradictory.

​Let me restate that the Appellant’s confessional statements were admitted in evidence after a voir dire. It is at the voir dire that the voluntariness vel non of a confessional statement is ascertained. At the end of the voir dire, the lower Court was satisfied that the confessional statements were voluntarily made and admitted them in evidence. It is hornbook law that the evaluation of evidence and drawing the right inferences therefrom has always been the primary duty of the Court of trial which has the advantage of seeing and watching the witnesses as they testified. An appellate Court, being restricted to the cold printed Records does not have the same advantage as the lower Court in the task of evaluating the evidence of the witnesses before it and making the necessary inferences as to whether or not the confessional statements were voluntarily made. An appellate Court will therefore, only interfere to ensure that justice prevails only where the trial Court failed to draw the correct inferences from the evidence or arrived at a finding consequent upon its consideration of extraneous matters. See LASISI vs. THE STATE (2013) 9 NWLR (PT 1358) 74 at 95 and BOLANLE vs. THE STATE (2005) 7 NWLR (PT 925) at 431.
In his contribution in LASISI vs. THE STATE (supra) at 96-97, Onnoghen, J.S.C. (later CJN), quipped:
“Once a confessional statement is admitted, following a trial within trial proceeding, it becomes very difficult for an appellate Court to intervene on an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the appellate Court is not privileged to have seen the witnesses testify nor watch their demeanour, etc.”

I kowtow. It was the lower Court that saw the witnesses testify; it was satisfied that the evidence adduced at the voir dire established that the confessional statements were voluntarily made and it admitted them in evidence. This Court does not have the same unparalleled advantage which the lower Court had of seeing and watching the witnesses testify; accordingly, there is no basis on which this Court can intervene to hold that the statements were not made voluntarily.

​The Appellant further argued that the lower Court ought not to have relied on the confessional statements to convict as the said statements were contradictory. The perceived contradiction which the Appellant highlighted is that in Exhibit J1 it is stated that “…while myself held him on his two legs until the okada rider died finally”; but that the same is not in Exhibit G. What is a contradiction? Put differently, is the Appellant’s contention such that a Court would in consequence disregard the confessional statements? In OGIDI vs. THE STATE (2002) 9 NWLR (PT 824) 1 at 23-24 which was followed in WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning:
“The word ‘contradiction’ is a simple English word. It derives from two Latin words. ‘Contra’ and Deco-ere-dixi-dictum’ meaning ‘to say the opposite’ hence ‘contradictum’: A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains, some minor differences in details.”

​In the light of what a contradiction is in law, I have examined the confessional statements and they do not affirm the opposite of each other. They are not in themselves inconsistent. Exhibit J1 merely contains a little more than what is in Exhibit G, it is a minor discrepancy and a minor difference in details which is not fatal. The nature of the contradiction and inconsistency which will cast a slur on the evidence or the contradiction which would upturn the decision of a Court has to be material contradictions and not minor discrepancies. This is not the position with the contradiction the Appellant has latched on to in this matter.

Coming back to what the law enjoins a Court to do when it is faced with a retracted confessional statement; the law is that a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as they can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.

​The lower Court at pages 144-145 of the Records duly referred to the test for determining the veracity of a confessional statement that is retracted and the legal requirement to seek other evidence be it slight of circumstances which make it probable that the confession is true. It then relied on the circumstantial evidence to find the required corroborative evidence. Hear the lower Court at pages 151-152 of the Records:
“Now, are these confessional statements, which more or less are similar in content, consistent with the other evidence admitted in this case i.e. are there other facts outside this confession to lend credence to the facts stated therein?
I had better state that in considering this point, the circumstantial evidence gotten hereunder will serve as the required corroborative evidence as the confessional statements have in turn supplied the requisite evidence of the doctrine of ‘Last Seen’ still hanging as the confessional statements show that the Accused Persons were the ones last seen in the company of the deceased person.
The under mentioned facts are also respectively corroborative of the statements of the Accused persons:
• The fact that the motorcycle of the deceased person was found in the possession of the 1st Accused Person and which vehicle particulars tallied with the ones in the possession of PW1.
​• The fact that the contents of the 1st Accused Person’s statements led to the arrest of the 2nd Accused Person.
• Likewise, the fact that the altered Registration No. as found by PW1 and the investigation of PW2 that the registration No. was altered tallied with the acts of the 2nd Accused Persons as related in their confessional statements in tampering with the registration No of the motorcycle.
• The fact that the 2nd Accused Person led the Police investigating team to the spot in Shasha, Iperu where the corpse of the deceased person was found as it is crystal clear that, the police did not use a divining rod or a crystal ball to know where the corpse of the deceased was before he led them there.
• The identification of the corpse of the deceased by PW1 also indubitably shows that the person from whom they took the motorcycle and killed was the same person who was declared missing together with his motorcycle and whose head was later severed from his body and whose skull was admitted as Exhibit H.
The facts as reviewed above, thus show that their confessions are possible as the statements show a narration of the circumstances leading to the death of deceased person. And of course, in that vein, the confessions are consistent with other facts ascertained in the course of the trial as I also find contrary to the submission of the 2nd Accused Person’s Counsel that these confessional statements rather than exculpate him, shows that he was involved heavily in the death of the deceased person.
I thus, also, do not find their evidence on oath of the retraction of their respective confessional statements credible as I hold that their evidence on oath is an afterthought as evidence which is contained in their confessional statements is far more credible and of probative value as it was made not so long after their arrest and the death of the deceased, indeed within 2 weeks of the death of the deceased person when the events were still fresh in their memory rather than their evidence on oath made in June, 2014, 9 years after their arrest and 6 years after their arraignment.”

​I have insightfully considered the evidence on record, and I am not in any doubt whatsoever that the lower Court properly evaluated the same and correctly arrived at the decision that there was other evidence, outside the confessional statements, which it enumerated in arriving at the conclusion that the confession is true.

The Appellant strenuously argued that the lower Court was wrong to have applied the doctrine of last seen contending that the evidence adduced did not fit into the doctrine. Now, the doctrine of last seen, which is also known as the last seen theory in some jurisdictions, means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and the circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased person met his death in such a circumstance or explaining that he could not be responsible for the death of the deceased. When there is no satisfactory explanation, the trial Court and the appellate Court will be justified in drawing the inference that the accused person killed the deceased. See IGABELE vs. THE STATE (2006) 6 NWLR (PT 975) 100 and HARUNA vs. A-G FEDERATION (2012) LPELR (7821) 1 at 30-31.
In MADU vs. THE STATE (2012) LPELR (7867) 1 at 51 – 52, Ariwoola, J.S.C. stated as follows:
“This doctrine is indeed of global application. In some other jurisdictions, it is called ‘the last seen theory.’ In the India case of Rajashkhanna vs. State of A.P. (2006) 10 SCC 172, the India Supreme Court noted as follows:
‘The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.’
However, in S. K. Yusuf vs. West Bengal (2011), the same Supreme Court, after referring to its earlier stand above, further held that where there is a long time gap between ‘last seen together’ and the crime, and there is possibility of other persons intervening, it is hazardous to rely on the theory of ‘last seen together’. Even if time gap is less, and there is no possibility of others intervening, it is said to be safer to look for corroboration.”

The Appellant identified himself in his confessional statements as having been last seen with the deceased, when he and the 1st accused person boarded the motorcycle operated by the deceased for him to take them to Iperu Remo. The deceased was next found dead in a shallow grave. The Appellant did not give any satisfactory explanation that could exculpate him from responsibility for the death of the deceased. Indeed, the circumstantial evidence on the basis of which the lower Court held that the confession is true was overwhelming, such that the lower Court was right to apply the doctrine of last seen in the diacritical circumstances.

Howbeit, if arguendo the lower Court was not correct in applying the doctrine of last seen, it will not be fatal where the decision it arrived at is correct, since an appellate Court interrogates whether the correct decision was arrived at and not whether the reason for arriving at the decision is correct. While it is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions, a judgment will not be set aside just because the reasons given were bad, if the judgment itself is right. See DAUDU vs. FRN (2018) LPELR (4367) 1 at 42-43, THE STATE vs. OGBUBUNJO (2001) LPELR (3223) 1 at 26, THE STATE OF LAGOS vs. OMOTAYO (2020) LPELR (50101) 1 at 7 and DOLOR vs. THE STATE (2020) LPELR (52445) 1 at 10.

The law remains that an accused person can be convicted solely on his confessional statement freely and voluntarily made: SAIDU vs. THE STATE (1982) 4 SC 41, TOPE vs. THE STATE (2019) LPELR (47837) 1 at 12, IMOH vs. THE STATE (2016) LPELR (47989) 1 at 11 and THE STATE vs. AHMED (2020) LPELR (49497) 1 at 27-28. In the confessional statements, Exhibits G and J1, the Appellant himself, provided material evidence of all the ingredients of the offences he was convicted for and sentenced by the lower Court: LASISI vs. THE STATE (supra) at 95 and LASE Vs. THE STATE (2017) LPELR (42468) 1 at 17-20. Even though, the Appellant retracted the statements, the lower Court, after due obeisance to the legal prescriptions in that regard, held the confession to be true. So, even without resort to the doctrine of last seen, the Appellant’s confessional statement alone is sufficient to ground his conviction.

The lower Court, having found the substantive offence of murder proved equally convicted for the offence of conspiracy to commit murder. See page 153 of the Records. The lower Court is correct in its decision that the evidence established that the Appellant and the 1st accused person “acted sequel to their common objective or purpose to kill the deceased person”. It is effulgent from the confessional statements and circumstantial evidence that the actions of the Appellant and the 1st accused person, which resulted in the death of the deceased person, were focused towards the realization of their common or mutual criminal purpose: KAZEEM vs. THE STATE (supra), SALAWU vs. THE STATE (supra) and JOHN vs. THE STATE (supra).
In splice, the essential ingredients of the offence of conspiracy, id est, the agreement between two or more persons, in the sense of the meeting of the minds, to carry out an unlawful or illegal act, which is an offence; the bare agreement to commit an offence suffices and the actions showing that the persons involved were engaged in accomplishing a common object or objective: KAZA vs. THE STATE (2008) LPELR (1683) 1 at 56-57, ADEKUNLE vs. THE STATE (1989) LPELR (108) 1 at 22 and ABDULLAHI vs. THE STATE (2008) LPELR (28) 1 at 20, were established by inference from the surrounding circumstances of the manner in which the deceased was killed. See SULE vs. THE STATE (supra) and ADEJOBI vs. THE STATE (supra).

It is abecedarian law that the evaluation of evidence and ascription of probative value thereto is in the province of the trial Court, which had the opportunity of hearing the testimony of the witnesses and observing their demeanour and that an appellate Court would not generally interfere with the findings of a trial Court in this regard, unless the same is shown to be perverse: see ONOGWU vs. THE STATE (1995) 6 NWLR (PT 401) 276 at 552. Put differently, an appellate Court will not ordinarily interfere with the findings of facts made by a trial Court on credibility of witnesses unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence. See SANYAOLU vs. THE STATE (1976) 5 SC 37, RABIU vs. THE STATE (1980) 8-11 SC 130, ADELUMOLA vs. THE STATE (1988) 1 NWLR (PT 73) 683; SUGH vs. THE STATE (1988) 2 NWLR (PT 77) 475 and THE STATE vs. NNOLIM (1994) 5 NWLR (PT 345) 394. The findings of facts and conclusions reached on the evidence by the lower Court are definitely not perverse. The Appellant’s failure to show that the findings are perverse signifies the lack of merit in this appeal. See SANDE vs. THE STATE (1982) 4 SC 41, THE STATE vs. AIBANGBEE (1998) 3 NWLR (PT 84) 548 and DIBIE vs. THE STATE (2007) ALL FWLR (PT 353) 83 at 102 and 110.

In conclusion, the lower Court rightly held that the substantive charge of murder was proved beyond reasonable doubt and was correct to also hold, flowing therefrom, that the count of conspiracy was equally proved beyond reasonable doubt. See OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 23-26. Therefore, the issue for determination is resolved against the Appellant. This appeal is lacking in merit, it fails and it is hereby dismissed. The decision of the lower Court in CHARGE NO. HCS/3C/2008 delivered on 28th April, 2016, embodying the conviction and sentence imposed on the Appellant is hereby affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, the lead judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, J.C.A, just delivered.

The lone issue in this Appeal was meticulously examined by my Lord and I agree with the reasons given as well as the conclusion that the Appeal lacks merit.

The Appeal is also dismissed by me, I affirm the judgment of the trial Court in Charge No: HCS/3C/2008 delivered on 28/4/2016.

FOLASADE AYODEJI OJO, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A.

In the instant appeal, the Appellant in his extra judicial statements, Exhibits G, J and J1, confessed that his action and that of his co-accused caused the death of one John Sampson. He however, at the trial, retracted his confession. His evidence before the trial Court is that he was framed up by a Chieftain of Odua Peoples’ Congress.

It is trite that an accused person who retracts or resiles his confessional statement has a duty to explain to the Court as part of his defence the reason for the inconsistency. He shall lead evidence to establish that the confession contained in his extra judicial statement cannot be correct or true.
​This he can do by establishing any of the following:
a) That he was not correctly recorded.
b) That he, in fact did not make the statement.
c) That he was unsettled in mind at the time he made the statement.
d) That he was induced to make the statement.
See OKOH VS STATE (2014) 8 NWLR (Pt. 1410) 502; ADISA VS STATE (2015) 4 NWLR (Pt. 1450) 475; MUSA VS STATE (2018) 13 NWLR (Pt. 1636) 307; HASSAN VS STATE (2001) 15 NWLR (Pt. 735) 184; STATE VS GWANGWAN (2015) 13 NWLR (Pt. 1477) 600; NGUMA VS ATTORNEY GENERAL, IMO STATE (2014) 7 NWLR (Pt. 1405) 119 and ONWUMERE VS STATE (1991) 4 NWLR (Pt. 186) 428 at 440.

There is no evidence on record that the Appellant proved by credible evidence that, the contents of his confessional statement is not correct. He merely denied it. He needed to do more. He had a duty to explain the reason for the inconsistency by credible evidence. He failed to do so. The trial Court was therefore right when it relied on the statements.

​It is in the light of the above, and the more detailed exposition contained in the lead judgment that I also affirm the conviction of the Appellant by the trial Court and join my learned brother in holding that this appeal lacks merit and should be dismissed. It is also dismissed by me.

Appearances:

J. T. Ogunniyi, Esq. with him, Miss R. A. Sulaimon For Appellant(s)

Miss O. A. Sonoiki (Chief State Counsel, Ministry of Justice, Ogun State) with him, Miss R. O. Otun (State Counsel) For Respondent(s)