OLAWALE v. STATE (2020)

OLAWALE v. STATE

(2020)LCN/15379(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, September 08, 2020

CA/EK/23C/2019

RATIO

WORDS AND PHRASES: “CONSPIRACY”

Conspiracy has been defined as an agreement by two or more persons to commit an unlawful act or a lawful act with unlawful means coupled with an intent to achieve the agreement’s objective.
See Ajayi v The State(2013) 9 NWLR (pt 1360) 589, The State v Salawu (2011)18 NWLR (pt 1279) 580.
The offence of conspiracy is usually shrouded in secrecy. Therefore, it is established once it becomes clear to the Court that the conspirators knew of the existence and the intention or purpose of the conspiracy. In most cases, conspiracy is inferred or presumed. See Afolabi v The State (2013) 13 MWLR (pt 1371)292, Osuagwu v The State (2013) 1-2 SC (pt I) 37, Lawson v The State (1975) 4 SC 115, Mumuni v The State (1975) 6 SC 79.
Now, the offence of conspiracy to commit armed robbery is created by Section 6(b) of the Robbery and Firearms (Special Provisions) Act (supra). The offence of conspiracy is however not defined in that provision. However, in law, conspiracy is defined as an agreement between two or more persons to commit an unlawful act; or to do a lawful act by unlawful means. Let me refer to the Black’s Law Dictionary (9th Ed.) which defines conspiracy as:
An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective; and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.
It goes further to state that:
Conspiracy is a separate offence from the crime that is the subject of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspirators object is defeated.
Save for Section 96 of the Penal Code Law, which is applicable in most states in the Northern parts of Nigeria, I am unable to lay my hands on any other statutory definition of criminal conspiracy. The said Section 96 of the Penal Code Law, defines criminal conspiracy as follows:
96.(1) When two or more persons agree to do or cause to be done
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such agreement is called a criminal conspiracy.
It would appear that the above definition of conspiracy has been adopted and applied by the Superior Courts in Nigeria. Case law have therefore defined criminal conspiracy as an agreement between two or more persons to do or cause to be done, an illegal act or a legal act by illegal means. The offence of conspiracy can therefore be committed, only if there is a meeting of minds between two or more persons. The offence cannot therefore be committed by one person alone, as no person can agree with or conspire with himself. It is the actual agreement alone that constitutes the offence, and therefore, whether or not the actual offence is committed is irrelevant, since it is the agreement that the law punishes. See Kaza v. State (2008) 7 NWLR (pt.1085) 125 at 176; Yakubu v. State (2014) 8 NWLR (pt.1408) 111 at 123 â 124; Ogugu v. State (1990) 2 NWLR (pt.134) 539 at 549 and Aje v. State (2006) 8 NWLR (pt. 982) 345 at 359.
It should however be noted that the crime of conspiracy is one that is always hatched in absolute secrecy. It is therefore not always easy to determine at a glance what conspiracy is. Thus, the Courts always make reference to the facts adduced in order to see whether or not there is conspiracy. In other words, conspiracy has become a matter of inference to be drawn from the proved and admitted facts before the Court. Generally, the agreement to do the unlawful act is inferred from the acts done by the conspirators in furtherance of the act for which the conspiracy was hatched.
Thus, where there is no direct evidence of the conspiracy, the Court will resort to drawing inferences from the proved and admitted facts, so as to see whether or not the conspiracy charged has been established. See Akogun v. State (2018) 3 NWLR (pt.1605) 137, Omotola v. State (2009) 7 NWLR (pt.1139) 148 and Agugua v. State (2017) LPELR 4202 (SC). Thus in Daboh v. State (1977) All N.L.R. 146, the Lord Justice Udo Udoma, JSC said:
It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the person charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy. The authorities have agreed that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The peculiarity of the offence of conspiracy is that it is the actual agreement alone which constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed.
Recently, in the case of Olakunle v. State (2018) 6 NWLR (pt.1614) 91 at 109 paragraphs B – C, My Lord, Eko, JSC said:
That in law, conspiracy can be inferred from acts of the accused where there is no direct evidence of an agreement between the accused. The law, from a long line of cases is settled that from the acts of the accused where there is no direct evidence of an agreement between the accused and another, criminal conspiracy can be inferred. It is the law, from a number of cases, that from the acts or manner the accused persons were doing things towards actualizing a common end, it can be inferred or deduced that they did so in furtherance of their conspirational agreement to commit the alleged offence.” PER FATIMA OMORO AKINBAMI, J.C.A.

EVIDENCE: FACT TO BE CONSIDERED BY THE COURT IN EVALUATING THE EVIDENCE OF AN EYE-WITNESS

CRIMINAL LAW: PRESUMPTION OF INNOCENCE

The law is that an accused person is presumed innocent until proven guilty. By Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act, the burden of proof rests squarely on the prosecution to prove all the ingredients of the offence charged beyond reasonable doubt. The burden does not shift and any lingering doubt must be resolved in favour of the accused person. OKONJI V THE STATE (1987) 1 NWLR (PT. 52) 659; KALU V THE STATE (1988) NWLR (PT. 90), ALABI V THE STATE (1993) 7 NWLR (PT. 307) 511 A-C; ONWE V THE STATE (2017) LPELR-SC 549/2013. PER FATIMA OMORO AKINBAMI, J.C.A.

CRIMINAL LAW: INGREDIENTS TO BE PROVEN TO SECURE A CONVICTION FOR CONSPIRACY TO COMMIT ARMED ROBBERY

The Appellant herein, along with a co-accused was charged with four counts of conspiracy to commit armed robbery and armed robbery. It is necessary then to identify the ingredients of these offences and then to look critically at the evidence adduced by the prosecution in order to determine whether the counts were proved beyond reasonable doubt, and the learned trial judge was right, in finding the appellant guilty on counts I and III.
The parties herein are in agreement as to what the prosecution needs to prove to secure a conviction for conspiracy to commit armed robbery and armed robbery. Starting with armed robbery, the law requires the Prosecution to establish three ingredients simultaneously:
(1) that there was a robbery or series of robberies;
(2) that each robbery was an armed robbery;
(3) that the accused was one of those who took part in the robbery. See the following cases: BOZIN V THE STATE (1985) 2 NWLR (PT. 8) 465; NWACHUKWU V THE STATE (1985) 1 NWLR (PT.11) 218; AMINA V STATE (1990) 6 NWLR (PT.155) 125; ANI V THE STATE (2003) 11 NWLR (PT. 830) 142; OLAYINKA V THE STATE (2007) 9 NWLR (PT.1040) 561; AFOLALU V STATE (2010) 16 NWLR (PT 1220) 584; NWATURUOCHA V THE STATE (2011) LPELR-8119(SC). PER FATIMA OMORO AKINBAMI, J.C.A.

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

LUKMAN OLAWALE APPELANT(S)

And

THE STATE RESPONDENT(S)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ekiti State High Court, Ado-Ekiti Judicial Division, delivered by Hon. Justice J. O Adeyeye in Suit No: HAD/100C/2017.

Before the said High Court, the Appellant was charged with the following offences:
Count I:
STATEMENT OF OFFENCE
Conspiracy, contrary to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 13th day of August, 2016 at Atikankan Junction, Ado-Ekiti within the jurisdiction of the Honourable Court, conspired to commit felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act, laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 13th day of August, 2016 at Atikankan Junction, Ado Ekiti within the jurisdiction of the Honourable Court, robbed one Odudele Sunday of his Bajaj Motorcycle.
COUNT III
STATEMENT OF THE OFFENCE
ARMED ROBBERY, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 12th day of August, 2016 at Atikankan Junction, Ado- Ekiti within the jurisdiction of the Honourable Court, robbed one Sergeant Olowoyeye Olumide of his Bajaj Motorcycle.
COUNT IV
STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 6th day of June, 2016 at Atikankan Junction, Ado-Ekiti within the jurisdiction of the Honourable Court, robbed one Esonichi Nicholas of his Bajaj Motorcycle.

The case of the prosecution as narrated by Olowoyeye Olumide (victim of the offence) who testified as the PW1, is as contained in pages 18-21 of the record of appeal as follows:
My name is Olowoyeye Olumide. I am a Sergeant in the Nigeria Police. I live at No. 14 Dallimore Street, Ado- Ekiti. I know the defendants. I remember 12/8/2016. On that day l was riding my motor cycle along NTA Road very close to the House of Assembly. When suddenly another person riding motorcycle blocked the road. It was about 8.30 pm. I then asked the boy why he blocked me. He said l should leave my motorcycle and run away. He brought out machete. Before l knew what was happening the 2nd person came out, and they started to machete me. I started struggling with them. We were engaged in a fight for about 30 minutes. I was injured and l rushed to Newlyin Road Police Station to report. They took away the motorcycle. But unfortunately the policemen and security men in the House of Assembly accosted the defendants, and stopped them from escaping with my motorcycle. But the defendants were not arrested as they escaped. I was rushed to the police clinic by policemen at Newlyin Road Police Station. I was referred to the Teaching Hospital for further treatment. I was referred from the Teaching Hospital Ado to ldo Medical Centre for the treatment of my hand.

On Sunday 14/8/16, l got information that two boys were arrested. On Monday 15/8/16, l went to Okesa Police Station, where the defendants were detained. When l got to the Police Station and I saw the two defendants. I identified the defendants as the people who attacked me, and collected my motorcycle. On 16/8/16 when l got to Okesa Police Station, I discovered the case has been referred to the State C.I.I.D. I went to the State C.I.I.D where I made a statement. When the defendants wanted to deny the allegation I told the police to tell the 1st defendant to open his mouth because I know l injured him in the mouth with my fist. When the 1st defendant opened his mouth, it was discovered that he was actually injured in the mouth. Despite the fact that the incident happened around 8.30 pm, I was able to see the face of the defendants because vehicles were passing, and l was able to see their face through the light of those vehicles as I was shouting help! Help!!. The defendants left the scene with both motorcycles. When police visited the scene, a dagger, headpan, cutlass and shovel were recovered in a bush near the scene. My motorcycle was released to me by Newlyin Road Policemen.

The Accused/Appellant DW1, gave testimony in Court as his defence to the charge against him. His oral testimony at page 50-51 of the Record of Appeal is as follows:
My name is Lukman Olawale. I live at No 25, lsale Osun Osogbo. Presently I am at Ado-Ekiti prison. I am a commercial motorcyclist. I don’t know PW1. I got to know PW1 at the Police Station after my arrest. I didn’t know PW2 before. I got to know him at the State SIIB. I don’t know PW3. It is not true that l conspired with 2nd defendant to rob at Atikankan Junction. The allegation of robbery against me is false. I did not rob anybody. I did not rob anybody on 6/6/2016.
It is not true that a cutlass was recovered from me. It is not true that a sword was recovered from me. Nothing incriminating was recovered from me at the time of my arrest. I was arrested at the Celestial Church at Omisanjana.

At the trial, aside the victim of the robbery who testified as PW1, the prosecution called two other witnesses, PW2 who was the victim of the robbery which took place on the 6/6/2016 and PW3, Investigating Police Officer in the robbery that took place on the 12/8/2016.

The Extra-Judicial Statements of the Appellants were also tendered and admitted in evidence. Counsel filed and exchanged Written Addresses; and in a considered judgment delivered on the 20th day of December, 2018, the trial Court convicted the Appellant on counts I and III of the charge, and sentenced him to death by hanging. It is against that conviction that the Appellant has appealed to this Court.

The Notice of Appeal which was dated 18th March, 2019, and filed on the 19/3/2019 consists of six (6) Grounds of Appeal. In compliance with the Rules of this Court, the parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Argument settled by Clement Akintola Esq., which was filed on the 20/11/19, but deemed properly filled on 18/3/2020 raised therein, three issues for determination as follows:
1). Whether having regards to the totality of the evidence, the Prosecution proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt. (Ground 1)
2). Whether with regards to the material contradictions in the evidence of the prosecution witnesses, the prosecution proved the offence of Armed Robbery against the Appellant for which Appellant was charged and convicted by the lower Court, beyond reasonable doubt. (Grounds 2, 4, 5 and 6)

3). Whether the failure of the learned trial judge to afford Appellant adequate opportunity to address the lower Court does not amount to clear denial of the Appellant’s Constitutional right of fair hearing. (Ground 3)

The Respondent’s Brief of Argument settled by Olawale Fapohunda Esq., Attorney-General of Ekiti-State was filed on the 05/6/2020 but deemed filed on the 11/6/2020. Two issues were raised by the Respondent for determination as follows:
1. Whether from the totality of the evidence adduced by the Prosecution, the learned trial judge was not right to have found that the Prosecution proved the allegations of conspiracy and armed robbery as contained in Counts 1 and 3 beyond reasonable doubt against the Appellant to warrant conviction and sentence. (Grounds 1, 2, 4, 5 and 6)
2. Whether from the entire proceedings, the Appellant’s fundamental right of fair hearing was breached by the Trial Court. (Ground 3)

I have soberly reflected on the issues formulated by the parties. Having thus considered the issues, I am of the view that the Appellant’s issues two and one cover his grounds of appeal and encompasses the Respondent’s issues as well.

Before considering the issues for determination, I must put it on record that, from the charge before the trial Court, Count I specifically states the offence of conspiracy to have been committed on the 13th day of August, 2016. Whilst the armed robbery was committed on the 12th of August, 2016 as can be garnered from Count III. I ask the question, how is it possible to commit an offence on a date preceding the plan to commit the offence?
In the determination of this appeal, I shall start with issue two(2).

Issue Two
“Whether with regards to the material contradictions in the evidence of the prosecution witnesses the prosecution proved the offence of armed robbery against the Appellant for which Appellant was charged and convicted by the lower Court beyond reasonable doubt.”

In arguing this issue Appellant’s counsel submitted that the Supreme Court has enumerated in plethora of cases the essential ingredients of the offence of armed robbery, which the prosecution must prove beyond reasonable doubt to ground the conviction of an accused person.

See the case of Dawai v State (2017) LPELR-43835(SC) 9-10 paras B-D; Ogogovie v State (2016) LPELR-40501(SC)10-11 paras F-B.

On whether there was indeed a robbery or series of robberies in the instant case leading to this appeal. Learned counsel assumed but did not concede that there was a robbery incident, the fact of the said armed robbery incident, possession of dangerous weapons and involvement of the Appellant for which the Appellant was charged and convicted is serious in doubt as the PW1, who is prosecution’s star/eye witness gave an unconvincing evidence on pages 18 and 19 of the record of appeal. Also PW3’s evidence is unconvincing.

It was contended by learned counsel that, the evidence of PW1 that he was stopped and robbed by another motorcycle on NTA Road while on motion is farfetched.

Furthermore, by the evidence of PW1 on 14/8/2016 he heard that the people that attacked him have been arrested and on 15/8/2016 he went to the Police Station where according to him, he identified the Appellant. Meanwhile, the Appellants’ purported confessional statement Exhibit E1, stated that Appellant was arrested on 15/8/2016 and DW2 gave evidence and testified that he was arrested only on 16/8/2016. This evidence of the appellant as well as that of DW2 was not challenged or controverted by the Prosecution, throughout the trial. Even Exhibit E1, Appellant’s purported confessional statement upon which the learned trial judge placed much reliance on supports the fact to show that Appellant was only arrested on 15/8/2016. Learned counsel then wondered whether it is this Appellant on record that PW1 actually heard that was arrested on 14/8/2016 and identified on 15/8/2016 at the police station. Learned counsel contended that this point creates a serious doubt in the evidence of PW1 as the identity of the persons that attacked him, whether the Appellant was actually one of the attackers.

The contents of Exhibit E1 on page 69 of the record of appeal as quoted by the learned trial judge the offence was said to have been committed on 14/8/2016 whereas PW1, and the same trial judge has found that the alleged offence of armed robbery was committed on the 12/8/2016.

Learned counsel reiterated the point that, this creates serious doubt in the evidence of prosecution as the actual date the alleged offence was committed, whether it is the offence the Appellant was charged and wrongly convicted or any other offence. The robbery incident for which Appellant was charged and convicted was greatly doubted by learned counsel. See Nweze v State (2017) LPELR-42344(SC).

The learned counsel urged this Court to resolve the obvious doubt in favour of the Appellant.

On whether the robbers were armed with dangerous weapons and that the accused person was the robber or one of the robbers.

Learned counsel submitted that there is no evidence on record to show that the Appellant was found with any cutlass or any other weapon which were brought in evidence, by the prosecution against the Appellant. It was noted by learned counsel that PW3 who claimed on page 39 of the record of appeal, that the Appellant led his team to the scene of the alleged crime, testified on page 43 of the record of Appeal that he cannot remember all that went to the scene. PW3, made the lower Court to believe that the Appellant led him to the scene of crime on an unknown date, where he alleged he recovered Exhibits G (cutlass) and H(sword). Learned counsel assumed but did not concede that PW1 was actually led to the scene of the alleged crime, it must have been after 16/8/2016 being the day the Appellant’s purported confessional statement (Exhibit E1) was signed. But by the showing of PW1 and evident on the charge sheet, the alleged offence was said to have been committed on 12/8/2016 along Atikankan Junction Ado-Ekiti. It is therefore very doubtful that Exhibits G and H, purportedly used by the Appellant would still be on that spot from 12/8/2016 till a day after 16/8/2016 without being taken away by a passer-by or displaced. Counsel urged this Court to discountenance this evidence as it is afterthought.

In his further submissions, learned counsel contended that since Exhibit E1 (Appellant’s purported confessional statement), the alleged crime was committed on 14/8/2016, and it further stated that the Appellant was arrested only on 15/8/2016, the Appellant cannot therefore be the actual person or among the people that committed the alleged offence for which he was charged and convicted. This is because there is no nexus between the evidence of PW1 and PW3, the Charge Sheet and the content of Exhibit E1, concerning the date of commission of the offence and the place, if not mere mentioning of “along NTA Road”.

The learned counsel referred to the case of Agboola v State (2013) LPELR-20652 (SC) 22 paras. D-F, wherein the Supreme Court decided on the issue the Court must consider in the identification of a suspect, in guarding against mistaken identity when ascribing value to the evidence of an eyewitness.

It was pointed out by learned counsel that on page 64 of the record of appeal that the learned trial judge made findings of facts regarding the lack of evidence linking the Appellant to the crime. Relying on the case of Agu v State (2017) LPELR-41664 (SC) 28 paras A-B, learned counsel contended that evidence of PW1, no weight ought not have been attached to it because of the doubts and contradictions in it. I am of the view that the evidence of PW1, that the learned trial judge in his findings above, correctly stated that there is no evidence that the victim PW1 made statement at New Iyin Road Police Station, wherein he probably described the defendants to the Police in his statement. He elucidated that during his evidence in chief, PW1 testified that he was able to see the faces of the persons who attacked him through the light of vehicles passing bye but PW1 changed his story under cross-examination that he was able to identify the Appellant because light of his motorcycle was on throughout the period of the attack.

It was further pointed out by learned counsel that on the body of the Information/Charge Sheet before the lower Court, the scene of crime is stated to be at Atikankan Junction, Ado Ekiti, whereas PW1 gave contrary evidence that he was attacked along NTA Road, close to House of Assembly Complex, Ado- Ekiti. PW1’s inconsistencies was further highlighted by learned counsel who referred to PW1’s, testimony under cross-examination where he stated that he was attacked at a roundabout, thereby duplicating the scene of crime and making his evidence unbelievable. Learned counsel pointed out the fact that the Appellant cannot therefore be held liable for a crime that was allegedly committed at Atikankan Junction, Ado- Ekiti and also one committed along NTA Road, close to House of Assembly Complex, Ado-Ekiti at the same time, and the same person and against the same person. These are evidence of clear contradictions and the learned trial judge is not empowered to pick and choose the evidence he wants to believe. See Musa v State (2009) LPELR-1930(SC) 35-37 paras G-A; Auwal v FRN (2013) LPELR-20776(CA).

The learned counsel referred to page 66 of the record of appeal wherein, the learned trial judge acknowledged the inconsistencies but wrongly regarded same as mere discrepancies instead of resolving same in favor of the Appellant due to obvious doubts and the Court is not allowed to pick and use which version it wishes to utilize and which to throw away. See case of Adoba v State (2018) LPELR-44065; Awosika v State (2018) LPELR-44351(SC) 57 paras A-C.

It was emphatically noted by learned counsel, that it is clear in this instant case, that the crime scene contained on the Information/Charge Sheet for which the Appellant was charged and convicted is totally different from the scene of crime stated in evidence, and there was no amendment of the Information/Charge throughout the proceedings. Therefore the Appellant cannot be rightly convicted in the light of these obvious contradictions regarding crime scene among other contradictions. See the case of Edosa & Anor v Ogiemwanre (2018) LPELR-46341(SC) 50-51 paras B-E; Shurumo v State (2010) LPELR-3069 (SC) 38 paras D-E.

The learned counsel in his further submissions, surmised that the identification of the Appellant by PW1 was a mistaken identity and the lower Court failed to meticulously consider the requisite circumstances and principles before ascribing any value to the evidence of an eyewitness in the matter of identification of a criminal.

The duty of the trial Court in evaluation of evidence was reiterated by learned counsel who buttressed this point relying on the decision in the case of Oluwalogbon Motors Ltd & Anor v NDIC (2018) LPELR-46482(CA) 13 para A; Ashaka V Nwachukwu (2013) LPELR-20272(CA).

Learned counsel contended that the trial judge however failed in its primary duty to properly evaluate evidence of the prosecution witnesses as well as the Appellant and make a record of how it arrived at its findings. The learned trial judge having failed to properly evaluate the evidence before the Court wrongly convicted the Appellant on evidence which did not prove the offence beyond reasonable doubt. See Anekwe v State (2014) LPELR-22881 (SC) 24-25 paras E-F.

Flowing from the above, learned counsel asked the question; 1. Does the evidence of PW1, whom the lower Court relied on as corroborating Exhibit E1, fall within Lord Denning’s “fanciful possibilities to deflect the course of justice?”
2. Is the evidence of PW1, up to what the law requires in the words of Lord Cowper “to fix a crime upon any man whereby his life, his liberty or his property may be concerned ?”

To answer the questions above, counsel referred to the reasoning and findings of the trial Court on page 73 of the record of appeal. He contended that the conclusion therein is unfounded and perverse as PW1 himself testified as quoted by the lower Court on page 63, of the record of appeal that he PW1, engaged in a fight for about 30 minutes with his attackers, and he was injured and he rushed to Newlyin Road Police Station to report. The learned counsel debunked the fact that PW1 who was alleged to be injured and rushed to New Iyin Road Police Station to report, cannot at the same time and day know what happened to his attackers. Whether or not policemen and security guards accosted his attackers and prevented them from running away with PW1’s alleged motorcycle, as he has made the lower Court to believe, is a statement of fact that should have been given by a third party, but definitely not, PW1, in his evidence that he rushed to the hospital. Therefore, the lower Court’s finding cannot be correct in the circumstances as it was not predicated on a credible evidence. It was reiterated by learned counsel that, PW1 certainly cannot know what happened thereafter, when he went to the hospital without someone informing him of same, and there was no evidence on record of any person that gave him that information.

Learned counsel further, on the finding of the trial Court which corroborated Exhibit E1 contended that on Exhibit E1, the date of commission of the alleged offence is 14/8/2020, whereas PW1, in his evidence on pages 6 and 18 of the record of appeal said he was attacked on 12/8/2016. Also, the lower Court in its judgment copiously quoted 12/8/16, as was also stated on the charge sheet as the date the alleged offence was committed.

Also learned counsel pointed out that, the scene of crime of the alleged offence on the charge sheet for which the Appellant was charged and tried and wrongly convicted, is at Atikankan junction, while the Exhibit E1, bears along NTA Road, Ado-Ekiti and at no place was Atikankan mentioned in Exhibit E1. And furthermore, Exhibit E1, shows that the Appellant was arrested on 15/8/2016 at about 4.00pm, whereas, PW1 copiously stated both in his documentary and oral evidence, that the Appellant was arrested on 14/8/2016. Counsel asked, where lies the corroboration of Exhibit E1, from the evidence of PW1, adjudged by the learned trial judge, if not clear contradictions?

The learned counsel contended that PW1’s story appears more as contrived to bolster the prosecution’s case. It’s veracity, and credibility raise serious doubt, which should have been resolved in favour of the Appellant. The story told by both PW1 and PW3 were referred to as product of fertile imagination similar to the likes of Agatha Christie fictions. It was learned counsel’s submission, that the lower Court, failed to properly exercise its function and duty in assessing the evidence placed before it at trial. See Emmanuel v State (2017) LPELR-43550; State v Onyeukwu (2004) 14 NWLR (PT 593) 340.

The learned counsel further submitted that, where the trial Court failed to make satisfactory evaluation of evidence before it, it is the duty of the appellate Court to re-evaluate such evidence and make proper findings of fact.

Where there is serious doubt in the case of the prosecution, Learned counsel relied on the decision in Anekwe v State (supra); Felix Nwosu v State (1986) 4 NWLR (PT 348) 359. In concluding learned counsel contended that the evidence of PW1 heavily relied on by the trial judge to convict the Appellant, does not come near proof beyond reasonable doubt that the Appellant robbed PW1 with cutlass or any weapon. That had the trial judge properly adverted his mind to it, the Appellant would have been discharged and acquitted . He urged this Court to so hold.

Issue 1
“Whether having regard to the totality of the evidence, the Prosecution proved Conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.”

Appellant’s counsel on this issue submitted that, the lower Court in its Judgment, failed to thoroughly and critically examine the evidence on record in which the prosecution failed to prove all the ingredients of the offence of conspiracy, and Armed Robbery as required by law against the Appellant and thereby arrived at a perverse decision. That it is trite, that the burden of proof in all criminal trials at all material times is on the prosecution and must be proved against the accused person beyond reasonable doubt. See Igabele v State (2006) 6 NWLR (pt 975) 100 @127 paras E-H; Olorunfemi v State (2018) LPELR-45894(CA).

It was submitted by learned counsel that, it is evident from the evidence of the prosecution witnesses as shown on pages 19-42 of the record of appeal, that the essential ingredients of the offence of conspiracy, and armed robbery which the prosecution must establish to warrant the conviction of an accused person, were not proved by the prosecution against the Appellant beyond reasonable doubt.

Learned counsel contended that the conviction of the Appellant by the learned trial judge for conspiracy was not born out of evidence on record, as the identity of the actual persons that attacked PW1 on 12/8/2016 is unknown and the finding that it was the Appellant is doubtful and perverse. SeeBuhari v INEC (2009) All FWLR (pt 459) (2009. He reiterated the fact that there is no evidence on record whether direct or circumstantial before the trial Court suggesting that the Appellant conspired with anyone to commit an unlawful purpose, or the armed robbery for which the Appellant was charged, thereby making the conviction of the Appellant for conspiracy unfounded. He referred to the evidence of the Appellant on page 51 of the record of appeal that he did not conspire with DW2 to commit any offence and denied ever knowing DW2 prior to his arrest. However, the learned trial judge relied on Appellant’s confessional statement to convict the Appellant, for the offence of conspiracy, and armed robbery as charged. The Appellant on pages 40-41 of the record of appeal retracted Exhibit E1, but the lower Court still admitted same, and attached much weight and value to the said retracted statement Exhibit E1. He cited the case of Adesina & Anor v The State (2012) 14 NWLR (PT. 1321) 429, 447; Ezeadukwa v Maduka (1997) 8 NWLR (PT 518) 635, 633 E.

Learned counsel referred to the finding of the learned trial judge on page 76 of the record of appeal, that the conviction of the Appellant for the offence of conspiracy, by inference is very perverse and a miscarriage of justice against the Appellant. However, the Court of appeal is properly empowered to reject the inference and make proper order in the circumstances. See Onwuka & Anor v Omogui (1992) LPELR-2719 page 29 paras B-D.

He further submitted that the prosecution failed woefully to prove the ingredients of the offence of conspiracy to commit armed robbery beyond reasonable doubt, against the Appellant as there is no direct and circumstantial evidence suggesting that the Appellant conspired with anyone to commit an unlawful purpose or armed robbery.

Learned counsel submitted that, where the Court is faced with a confessional statement of an accused , it has the onerous duty of the trial Court to test the truth of such confessional statement by thoroughly examining it with respect to other credible evidence led before it, in order to determine the above six tests.
He submitted that there is no evidence outside the confessional statement (Exhibit E1) to show that the content of the statement was true, and the said confession was never corroborated in any way or manner at trial.

In his further submissions, learned counsel surmised that the only reason proffered by the trial judge in believing Exhibit E1 is that the names of Appellant’s parents, his hometown and school attended were written in Exhibit E1, by the policeman who recorded the statement. He then contended that the above alone cannot make the confession true, as there is no other evidence on record that suggests it was true.

Learned counsel contended that, a careful perusal of the above evidence of the Appellant will reveal that at no time did Appellant mention the name of his primary school as well as the name of his home town in his evidence at trial or questions put to him in that regard during cross-examination. Also that the evidence of DW2, never corroborated the above finding of lower Court. It was reiterated by learned counsel that for an accused to be convicted based on confessional statement, there should be some corroborative evidence outside the confession. He cited the case of Sunday v State (LPELR-42259)(SC) 34-35 para C-A.

Learned counsel submitted that there was no independent evidence outside the confession to establish the fact of armed robbery, or that it was the Appellant that participated in the alleged armed robbery.

On whether there are relevant statements of facts made in the confession, likely to be true as far as they can be tested, and whether the accused had opportunity of committing the offence. Learned counsel submitted that the denial or retraction of a confessional statement is a matter to be taken into consideration to decide what weight could be attached to the said confessional statement. The Appellant stated in evidence that he was arrested at the Celestial Church at Omisanjana and denied in evidence ever knowing anything relating to the alleged offence for which he was arrested, charged and convicted. He referred to Exhibit E1, that there are no relevant statements of facts made therein that are likely to be true if properly tested.

In his further submissions, learned counsel contended that the confession in Exhibit E1 are not relevant statement of facts made therein, that are likely to be true if properly tested.

Learned counsel referring to Exhibit E1, stated that the date of commission of the alleged offence therein is 14/8/2016, while PW1, in his evidence said he was attacked on 12/8/2016, and the charge sheet reads 12/8/2016. Learned counsel asked the question if the Appellant could be held responsible for whatever that happened on 14/8/2016?

The second question posed by learned counsel is how did the Appellant know the name of PW1 to be Sergeant Olowoyeye Olumide since they had not met or had any dealing before to the extent of writing his name in Exhibit E1, at the police station on 16/8/2016?

Learned counsel asked the question, how come the scene of crime stated on the charge sheet for which Appellant was charged and convicted is at Atikankan junction, while the statement bears along NTA Road, Ado-Ekiti?

The question posed by learned counsel subsequently is whether there was mistaken identity since Exhibit E1, states that the Appellant was arrested on 15/8/2016 at about 4pm, whereas PW1, stated both in documentary and oral evidence that the Appellant was arrested on 14/8/2016.

Learned counsel asked why the learned trial judge quickly believed the story, that PW1 was macheted by the Appellant, without calling for evidence to ascertain the truth of the wound/ injury, if any?

The learned counsel pointed out that the conflict in time vis-a-vis the evidence of PW1, creates doubt on Exhibit E1.
The confessional statement was knocked by the learned counsel, who pointed out that the Appellant had no opportunity of committing the crime as he stated that he did not have any cause to meet PW1, before 13/8/2016 at the conflicting times of the alleged offence. Therefore the said confession is neither direct nor positive. See Nweke v State (2017) LPELR-42103.

On whether the confession is possible, and whether the confession is consistent with other facts which have been ascertained and which have been proved. Learned counsel contended that the confession. In Exhibit E1, is far from being possible, and same is inconsistent with other facts which have been ascertained on record on the following reasons:
The date of commission of the alleged offence is 14/8/2016 as stated in exhibit E1, whereas PW1, in his evidence pages 6 and 18 of the record of appeal stated he was attacked on 12/8/2016.

The trial judge in his judgment quoted 12/8/2016 as well as the charge sheet as the date the alleged offence was committed. The scene of crime of the alleged offence stated on the charge sheet for which Appellant was charged and convicted is at Atikankan junction, while the Exhibit E1, bears along NTA Road, Ado-Ekiti, and at no place was Atikankan mentioned in Exhibit E1. The contents of Exhibit E1, show that the Appellant was arrested on 15/8/2016 at about 4pm whereas PW1, stated both in his documentary and oral evidence that the Appellant was arrested on 14/8/2016.

Learned counsel submitted that Exhibit E1 is inconsistent with other facts which have been ascertained on record. But that the trial judge, though. He quoted the six tests to be considered before ascertaining the weight that will be attached to a confessional statement but failed to properly apply the said tests, before convicting the Appellant, otherwise the learned trial judge would have discovered that there was no other independent evidence to show the truthfulness of the said confession as the prosecution did not adduce any evidence to corroborate Exhibit E1. He cited the case of Nweze v State (supra).

The point was reiterated by learned counsel that from the evidence of prosecution witnesses and paragraphs 3.37-4.43 of Appellant’s brief, it is obvious that the testimonies of all the prosecution witnesses did not show any bearing, with the contents of the confessional statement of Appellant, But rather contradicted the contents of the confessional statement of the Appellant. Learned counsel contended that the said Exhibit E1, did not make any reference to a robbery incident at Atikankan on 12/8/2016, for which Appellant was charged and convicted by the trial Court. But rather, the reference thereof, suggests commission of another different crime, which has neither been proved against the Appellant, nor was he charged for same. He is therefore surprised that the lower Court found the said Exhibit E1, worthy of reliance simply on the principle that mere retraction of a confessional statement does not render it inadmissible.

Also learned counsel surmised that from his observations in Exhibit E1, same is capable of dual or more interpretations in the proof of guilt of the Appellant in respect of the offence charged and the trial Court was too quick to convict the Appellant without proper evaluation and consideration of evidence on record thereby leading to a perverse decision which has occasioned miscarriage of justice. See Tijjani v State (2017) LPELR-43298 (CA); Samuel & Ors v Nigerian Army (2006) LPELR-1175; Mohammed v State (2018) LPELR-44668.

The A.G on their issue one, submitted that the Appellant’s counsel argued that the trial Court failed to thoroughly and critically examine the evidence on record in which the prosecution failed to prove all the ingredients of the offence of conspiracy as required by law against the Appellant and thereby arrived at a perverse decision. That the inference of conspiracy was drawn against the Appellant by the Trial Court without any evidence of overt act.
The A. G submitted that the Appellant misconceived the position of the law as it relates to the establishment of the ingredients of the offence of conspiracy as required by law against the Appellant and thereby arrived at a perverse decision.
He further argued that the inference of conspiracy was drawn against the Appellant by the Trial Court without any evidence of overt act.
It was submitted by learned counsel that the law for allegation of conspiracy to be proved beyond reasonable doubt by the prosecution, three ingredients must be established:
1. Two or more persons have entered into an agreement freely to do or commit an illegal act;
2. The two or more persons have agreed to cause to be done, an illegal act;
3. The two or more persons have agreed freely to do or cause to be done an act which is not illegal but by illegal means.
It was reiterated by the A.G that once agreement is shown to exist between the conspirators, evidence admissible against one conspirator is equally admissible against the others. See Gbenga Osho v State (2018) All FWLR (PT 966) 233 @ 250 paras A-E. That the offence of conspiracy is consummated once the parties are adidem on the manifestation of such intent even if in the long run, the conspirators reneged in the pursuance of their agreement. The offence of conspiracy is usually planned and hatched in secrecy, therefore in proving it, direct evidence is not indispensable, and it is open to the trial Court to infer compliancy from the fact of doing things towards a common end. See Emenegor v State 2009 Vol. 31 WRN 66 at 73-75; Adesina v State 2010 Vol 35 WRN 49 at 69.
The A.G referred to Exhibits E & E1, Appellant’s statements to the police during investigation, and Exhibits F and F1, the second defendant’s statements. He pointed out that from the, above statements conspiracy can be conveniently inferred. The best evidence of conspiracy is usually obtained from one of the conspirators or from inferences. The overt act or omission is often the only evidence which translates into the actual reus and the actus reus of each of the conspirators is often regarded as the only proof of criminal agreement to commit a crime which is what is called conspiracy. See Saidu Haruna v The State (2018) All FWLR (Pt 969) 689.
The A.G referred to the confessional statement of the Appellant on the conspiracy, that it is well corroborated by the evidence of PW1, who testified before the trial Court on 7/3/2018, and clearly painted how and where he was attacked, injured and dispossessed of his motorcycle.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It was noted by the A.G that the offence of conspiracy can also be proved through circumstantial evidence that are strong, compelling, cogent and point irresistibly to the guilt of the accused can sustain a charge of crime, and ground conviction of an accused person. See Jua v State 2010 Vol. 43 WRN 1-36. The A.G submitted that even where there is no direct evidence of an agreement between the accused and another, criminal conspiracy can be inferred from the acts or manner the accused persons were doing things towards actualizing a common end, it can be inferred that they did so in furtherance of their conspiratorial agreement to commit the alleged offence. See Olabisi Olakunle v State (2018) All FWLR (947)1270 @ 1295 paras E-G; Obiakor v State ( 2002) FWLR (pt. 113) 299; Ubierho v State (2005) All FWLR (pt 254) 804; Makana Dada v State (2018) All FWLR (pt920) 77; Nwankwoala v State (2006) 12 SCM (PT2) 267.
The A.G further submitted that, there are sufficient facts in the present case from which common intention can be inferred, and were actually inferred by the trial Court to convict the Appellant for conspiracy to commit armed robbery. That where more than one person are accused of joint commission of a crime, it is enough to prove that they participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention, manifesting in the execution of the common objective, is enough to render each of the accused persons in the group guilty of the offence. In other words, where common intention is established, a fatal blow or gunshot, though given by one of the parties, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is in such a case, no more than the hand by which others also struck. See Omotola v State (2009) All FWLR (Pt. 464) 1490; Ala v State (2006) 7 SCNJ 566; Ikemson v State (1989) 5 NWLR (PT123) 505.
The A.G contended that, once the prosecution succeeds in proving the existence of conspiracy, evidence admissible against one conspirator is also admissible against the other – Yaro v State 2008 Vol 2 WRN 131 at 151-152; Nwankwoala v The State (2006) 14 NWLR (PT. 1000) page 663 at 683-684.
On the charge of armed robbery, the Appellant contended that the Respondent failed to prove all the ingredients of armed robbery as required by law. The Appellant contended that, if there was robbery, the fact of the said armed robbery incident, possession of dangerous weapons, and the involvement of the Appellant is seriously in doubt. Appellant’s counsel said PW1, who is the star witness gave unconvincing evidence.
The A.G reacting to the above contention, submitted that the Appellant has no basis in law, and in facts considering the totality of evidence adduced by the Respondent in the case. The Respondent is aware of the legal burden placed on her by Section 135 of the Evidence Act, that the onus rests on her to prove the guilt of the Appellant beyond reasonable doubt by establishing all the ingredients of the charge pressed against the Appellant and that the onus does not shift.
He enumerated the three ingredients of the offence of armed robbery:
1. That there was a robbery
2. That the robbery was an armed robbery
3. That the accused person took part in the robbery.
See Attah v State (2010) All FWLR (pt540) 1224 at 1256; Sowemimo v State (2011) All FWLR (Pt. 599) 1064 at 1086.
The A.G submitted further that the guilt of an accused person can be proved by any of the following three ways:
1. By a voluntary confessional statement of the accused person.
2. By circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him.
3. By evidence of eyewitness or witnesses otherwise known as direct evidence.
See Michael Taiye v State (2018) All FWLR (Pt. 969) 737 at pages 757-758; Adamu v State (2018) All FWLR (Pt. 925) 48 at 79; Omoregie v State (2018) All FWLR (Pt. 925) 1 at 17; Famuyiwa v State (2018) All FWLR (pt. 919) 1 at 24.
The A.G referred to the testimony of PW1, Sgt. Olumide Olowoyeye of the 7/3/2018, that it is vivid from it that, he was robbed on 12/8/2016, the robbery was an armed robbery, and that the Appellant actively participated in the robbery. That this evidence was not impeached by the Appellant’s counsel during cross-examination. The A.G also noted that the identification of the Appellant by PW1, was very spontaneous and natural on 15/8/16, when the victim saw the Appellant after the incident. And that the question whether an accused was properly identified or not, is a question of fact to be considered by the trial judge, in view of the totality of evidence led, and where an identification is found to be spontaneous and natural, the trial Court will not be wrong to attach weight to it, unless there are other exculpatory evidence in favour of the accused. See Otti v State (1991) 8 NWLR (PT207)103 @ 117.
It was reiterated by the A.G that, there was no mistake in the identity of the Appellant, considering the unchallenged evidence of PW1, which fixed the Appellant to the scene, and linked him with the commission of the alleged offences. The Appellant confessed during investigation to the commission of the alleged offences, and his confessional statement was admitted as Exhibit E & E1 without objection. The A.G stated the law that, when there is good and cogent evidence linking an accused with the commission of crime and the accused confessed to same in his statement to the police, he has conclusively identified himself. See Usung v State (2010) 5 WRN 132; Ikemson v State (1989) 3 NWLR (PT 110) 455.

See Section 28 of the Evidence Act, 2011; Michael Taiye v State (supra) 760 para F.; Lekan Olaoye v State (2018) ALL FWLR (PT. 961) 1532 at 1557 paraC-D.
In his further submissions, the A.G referred to the principle of law that a free and voluntary confession by an accused person, if direct, positive and unequivocal, and if satisfactorily proved is sufficient to ground a conviction. See Haruna v A. G Federation (2012)ALL FWLR (pt. 632)1617; Alarape v State (2001) All FWLR (pt. 41)1872; Irene Nguma v A.G Imo State (2014) 16 WRN 1 at 24-25.
In his further submissions, the A.G pointed at PW1’s evidence, where he clearly described the Appellant, and fixed him to the scene of the crime , coupled with Appellant’s confessional statement which have neutralized the concept of mistaken identity as canvassed by the Appellant.
The argument of Appellant in paragraph 5.06 of his brief was described by A.G as having no basis in law, in that the date the Appellant was arrested, is not one of the ingredients to be specifically proved by the prosecution, in the allegation of conspiracy and armed robbery pressed against the Appellant. The Appellant was duly identified by PW1 on 16/8/2016 at the C.I.I.D as the armed robber he injured with his fist when he engaged them on the day of the incident.
A.G submitted that it is the law that where the phrase “on or about” is used in a criminal charge, it expresses some amount of uncertainty. While the “or” introduces an alternative, the word “about” means “ a little more or less than” “a little before or a little after”. Therefore when the phrase “on or about” is used in a criminal charge it is not necessary to prove the precise date the alleged offence was committed. See Akpa v State (2007) 2 NWLR (PT. 1019) 500 at 509; Awopejo v State (2000) 6 NWLR (PT. 659) 1; Kor v State (2001) FWLR (PT76)637 at 645.
The A.G urged this Court to discountenance the Appellant’s argument and submissions as contained in paragraphs 5.07-5.13 to the effect that there is mistaken identity, and that there is no nexus between the evidence of PW1, PW3, Exhibit E1 and himself. That PW1’s evidence, where he described the encounter/struggle he had with the Appellant and effectively fixed him at the scene of the crime, coupled with the Appellant’s own confessional statement have undoubtedly neutralized the concept of mistaken identity as canvassed by the Appellant.
The A.G contended that when the evidence adduced by the prosecution conclusively points to the accused as the perpetrator of the crime alleged to have been committed, and the evidence is tested, scrutinized and accepted by the Court, the onus on the accused to rebut the presumption of guilt or to cast a reasonable doubt in the prosecution’s case by preponderance of probabilities. See Kalu v State (supra) 396 paras D-E.
The contention of the Appellant in paragraph 5.16-5.25 was described by the A.G as technical as well as lacking in merit. In that, not every mistake or error that will lead to the reversal of a judgment. It is only where the mistake made is substantial and occasioned a miscarriage of justice, that it becomes fatal to the judgment. See Solola v State (2005) All FWLR (pt. 269) 1751; Umar Sani v State (2018) All FWLR (pt. 950) 1622 @ 1667; Hadi Sule v State (2018) All FWLR (pt. 953) 164 @ 188-189. To reiterate his point the A.G referred to Exhibits E & E1. That from the Exhibits it would not be substantial justice if the Appellant’s conviction and sentence is set aside on the Respondent’s error of stating the scene as Atikankan Ado-Ekiti, despite other impeccable evidence. Substantial justice should not be sacrificed on the altar of technicalities. Where technicalities or irregularities have not occasioned a miscarriage of justice, the Appellate Court will not set aside a judgment which is otherwise impeccable in other respects. See Ogba v The State (1992) 2 SCNJ 106 @ 109.
The A.G contended that the major issue in this appeal is whether the Appellant participated in the crime or not. In that for contradictions to be material and damaging to the prosecution’s case, it must be substantial and fundamental to the main issue in question so as to affect the credibility of the evidence. See Theophilus v State (1996) 1 NWLR (PT. 423) 139; Khaleel v The State (1997) 8 NWLR (PT. 516) 237; Igbi v State (2000) 3 NWLR (PT. 648) 169.
He submitted that the reasoning of the learned trial judge on the issue is accurate, and he urged the Court to so hold. See Ndukwe v State (2009) All FWLR (pt. 464) 1447 @ 1480.
He urged this Court to resolve this issue against the Appellant.

RESOLUTION OF ISSUE TWO
The law is that an accused person is presumed innocent until proven guilty. By Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act, the burden of proof rests squarely on the prosecution to prove all the ingredients of the offence charged beyond reasonable doubt. The burden does not shift and any lingering doubt must be resolved in favour of the accused person. OKONJI V THE STATE (1987) 1 NWLR (PT. 52) 659; KALU V THE STATE (1988) NWLR (PT. 90), ALABI V THE STATE (1993) 7 NWLR (PT. 307) 511 A-C; ONWE V THE STATE (2017) LPELR-SC 549/2013.

In the present case, the issue as to whether there was an armed robbery incident wherein PW1 (Sergeant Olowoyeye Olumide) was robbed by Appellant is in dispute. The area of contention is on the identity of the persons that carried out the act of armed robbery on the 12/8/2016, as given in evidence by PW1 for which Appellant was tried and convicted. Appellant’s counsel pointed out the fact that Counts l and III for which the Appellant was convicted on the body of the Information/Charge Sheet before the lower Court, the scene of crime is clearly stated to be at Atikankan Junction, Ado-Ekiti, whereas PW1, gave contrary evidence that he was attacked along NTA Road, close to House of Assembly Complex, Ado-Ekiti. The PW1, under cross examination testified that he was attacked at a roundabout, thereby duplicating the scene of crime and making his evidence unbelievable.

From the evidence adduced before the trial Court, I agree with the Appellant’s counsel that the Appellant cannot be held liable, for a crime that was allegedly committed at Atikankan Junction, Ado-Ekiti and along NTA Road close to House of Assembly Complex, Ado Ekiti at the same time, and the same person.
The charge in Count 1, states as follows:
“Statement of Offence
CONSPIRACY, Contrary to Section 6 (b) of the Robbery and Firearms (special Provisions) Act, Laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 13th day of August, 2016 at Atikankan Junction, Ado Ekiti within the jurisdiction of the Honourable Court, conspired to commit felony to wit: Armed Robbery.
Count III
STATEMENT OF THE OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation, 2004.
PARTICULARS OF OFFENCE
LUKMAN OLAWALE and JUWON DAVID on or about the 12th day of August, 2016 at Atikankan Junction, Ado Ekiti within the jurisdiction of the Honourable Court robbed one Sgt Olowoyeye Olumide of his Bajaj Motorcycle.”

In proof of the fact of robbery, the PW1 testified at pages 18-21 line 14 of the Record of Appeal as follows:
“I remember 12/8/2016. On that day, I was riding my motor motorcycle along NTA Road, very close to the House of Assembly. When suddenly another person riding motorcycle blocked the road. It was about 8.30pm. I then asked the boy why he blocked me. He said l should leave my motorcycle and run away. He brought out machete. Before l knew what was happening the 2nd person came out and they started to machete me. I started struggling with them. We were engaged in a fight for about 30 minutes. I was injured and l rushed to Newlyin Road Police Station to report. They took away the motorcycle. But unfortunately the policeman and security men in the House of Assembly accosted the defendants and stopped them from escaping with my motorcycle. But the defendants were not arrested as they escaped. I was rushed to the police clinic by policemen at Newlyin Road police station. I was referred to the Teaching Hospital for further treatment. I was referred from the Teaching Hospital Ado to ldo Medical Centre for the treatment of my hand.

On Sunday 14/8/2016, I got information that two boys were arrested. On Monday 15/8/2016, I went to Okesa Police Station where the defendants were detained. When l got to the Police Station and I saw the two defendants, I identified the defendants as the people who attacked me and collected my motorcycle. On 16/8/2016, when I got to Okesa Police Station, I discovered the case had been referred to the State C.I.I.D. I went to the State C.I.I.D where I made a statement. When the defendants wanted to deny the allegation, I told the police to tell the 1st defendant to open his mouth because I know l injured him in the mouth with my fist. When the 1st defendant opened his mouth, it was discovered that he was actually injured in the mouth. Despite the fact that the incident happened around 8.30pm, I was able to see the face of the defendants, because vehicles were passing and I was able to see their face through the light of those vehicles as I was shouting help! help!!. The defendants left the scene with both motorcycle. When police visited the scene, a dagger, head pan, cutlass and shovel were recovered in a bush near the scene. My motorcycle was released to me by new Iyin Road Policemen.”

On page 66 of the record of appeal, the learned trial judge stated:
“However, the above pieces of evidence were not contained in the statement of the witness to the Police, and it is on the basis of the apparent discrepancies in his evidence before the Court and the said statement to the Police that the learned counsel for the defendants, during cross-examination applied to tender the statement of the witness in evidence, after the attention of the witness was drawn to the discrepancies in the statement and his evidence on oath. The discrepancies in the statement of the witness to the police and his evidence in Court are mere discrepancies which do not destroy the credibility of the witness. The witness in his statement to the Police said he could identify the defendants anytime, anywhere.”

I agree with the Appellant’s counsel that the PW1’s evidence is inconsistent as well as contradictory in terms of the date of robbery on the charge sheet viz-a-viz the date given by PW1 for the robbery in his evidence in Court. From the cross examination of PW1, he testified that he was attacked at a roundabout, thereby duplicating the scene of robbery and making his evidence unbelievable.
The Supreme Court in the case of Musa v State (2009) LPELR-1930 (SC) 35-37 paras G-A stated as follows:
“Where there are contradictions in the testimonies of the prosecution witnesses on a material fact, and the contradictions are not explained by the prosecution through any of the witnesses, the trial Court must not be left to speculate or proffer explanation for such contradictions, so that it will only find itself in a position where it will pick and choose from the evidence of the prosecution which it will believe.”
The learned trial judge acknowledged this inconsistency on page 66 of the record of appeal, but wrongly regarded same as mere discrepancies, instead of resolving same in favour of the Appellant, due to the obvious doubts. The Court is not allowed to pick and use which version of evidence to utilize, and which to discountenance. The learned trial judge did not explain what he based his decision to accept the evidence of PW1 on. No witness came before the trial Court to explain the discrepancies in PW1’s evidence before the Court, viz-a-viz his extra-judicial statement to the police, this therefore made the trial judge’s decision perverse.
In the case of Adoba v State (2018) LPELR-44065, the Supreme Court held:

“In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person.”
There is no doubt from the evidence before the trial Court, which I garnered from the record of appeal, it is clear that the crime scene contained on the Information/Charge Sheet, for which the Appellant was charged and convicted, is totally different from the scene of crime stated in evidence, and there was no amendment of the information/Charge throughout the trial. Consequently, the learned trial judge erred in law, and wrongly convicted the Appellant in the light of the obvious contradictions regarding the actual crime scene among other contradictions.
In the case of Edosa & Anor v Ogiemwanre (2018) LPELR-46341(SC) 50-51, the apex Court stated as follows:
“Now it is pertinent to reiterate the general principles of the law on matters of contradictions in evidence of parties before the Court. That it is not all contradictions That result in the rejection of the evidence of a witness. It is only those that are material, and result in a miscarriage of justice that would warrant such a rejection of evidence.”

Now whether the findings of the lower Court were right or wrong in ascertaining the identity of the accused, is a question to be answered after reviewing the record of appeal, and studying the evaluation of evidence led at the trial. It is pertinent therefore to begin by reviewing the extra judicial statement of the relevant witnesses with a view to ascertaining truly if the appellant was properly identified as one of the armed robbers that committed the act on the fateful day.

In the light of the decision of the learned trial judge, accepting evidence of PW1, fraught with inconsistencies and discrepancies, Appellant’s counsel rightly argued that the identification of the Appellant by PW1, was a mistaken identity. I am of the view that the trial judge from the record of appeal failed to meticulously consider the requisite circumstances, and principles before ascribing any value to the evidence of PW1, in the matter of identification of a criminal.

Evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of the evidence of one of the contending parties, and disbelief of the other, or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other.

In consideration of the above, it therefore follows that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any value to the evidence of an eye-witness identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1) Circumstances in which the eye-witness saw the suspect or defendant.
2) The length of time the witness saw the subject or defendant.
3) The lighting conditions.
4) The opportunity of close observation.
5) The previous contacts between the two parties.
See NDIDI V. THE STATE (2007) 13 NWLR (PT. 1052) 633 PAGE 651, paras. G-H; IKEMSON V. The STATE (1989) 3 NWLR (pt.110) 455; OGOALA V. The STATE (1991) 2 NWLR (pt. 175) 509; BASHAYA V. STATE (1998) 5NWLR (Pt.550) @ 351.
It was stressed that whenever the case of an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution, before convicting the accused in reliance on the correctness of the identification. See the English case of R V. TURNBULL & ORS. (1976) 3 All ER 549 – a decision of the Court of Appeal (England) Criminal Division presided over by Lord Widgery CJ. This decision has not only been cited by our indigenous scholars but has been adopted over the years by the Supreme Court. See IKEMSON V. STATE(1989) 6 SC (PT. 5) 114.

Another case on identification evidence is that of SEGUN BALOGUN V. ATTORNEY-GENERAL OF OGUN STATE (2002) 6 NWLR (PT.763) 512.
In that case, dwelling on the principles governing the need for identification parade, the Supreme Court per Uwaifo, JSC; made it clear at page 534 that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, His Lordship further disclosed was absolutely unnecessary, when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.

In this case PW1 (the victim), stated that on 16/8/16, he went to the State C.I.I.D where he made a statement. When the Appellant wanted to deny the allegation of robbery, PW1 told the Police to tell him to open his mouth, because he injured Appellant in the mouth with his fist.
The law is trite that a witness must have mentioned the name of the accused person or given a description to the police at the earliest opportunity time, especially where the witness claims to have known the accused person prior to the occurrence of the incident. The reason is obvious because such delay is likely to expose to question the evidence of identity and thereby raising uncertainty as to its acceptability and probative value. See the case of KINGSLEY IDEMUDIA V. STATE (2015) LPELR-24835 (SC).
Again, the incident took place at 8.30 pm, and no one was with the Appellant at the spot where he claimed he was robbed.
The trial Judge in his judgment on page 73 of the record of appeal stated as follows:
“PW1, said the Policemen and Security Guards in the House of Assembly prevented the defendants from running away with his motorcycle, which was later released to him by the Police… In the circumstance, l am of the view that the confessional statements of 1st and 2nd defendants admit all the ingredients of the offence of armed robbery as charged in count III of the charge on the information, and l so hold. I find that the confessional statements are corroborated, and consistent with other facts that have been ascertained in the case. In the circumstance, l am of the view, that the prosecution has proved a case of armed robbery against the 1st and 2nd defendants and l so hold…”
The Appellant’s counsel in my view rightly contended that the above conclusion is unfounded and perverse as PW1 himself testified as quoted by the lower Court on page 63 of the record of appeal that he PW1 engaged the two robbers in a fight for about 30 minutes and he was injured and he rushed to New Iyin Road Police Station to report.
I further find that PW1, as rightly pointed out by Appellant’s counsel who alleged that he was injured by the robbers, cannot be at more than one place at any given time. He cannot therefore be privy to whatever happened at the scene of robbery after he left for the police station, and hospital. The trial judge was therefore wrong to believe PW1’s evidence that the policemen and security guards accosted his attackers, and prevented them from running with PW1’s alleged motorcycle. In the record of appeal, I could not find anywhere where it was stated that someone informed PW1 of what transpired after he left the scene.
The finding of the lower Court, that the evidence of PW1 corroborates Exhibit E1, is not premised on evidence before the Court, in view of obvious conflicting and irreconcilable facts. By Exhibit E1, the date of commission of the alleged offence is 14/8/16, whereas PW1, in his evidence on pages 6 and 18, of the record of appeal said he was attacked on 12/8/2016. The learned trial judge in the judgment quoted 12/8/2016 as well as the charge sheet as the date the alleged offence was committed.
From the record of appeal, l find that the scene of robbery alleged, stated on the charged sheet for which the Appellant was charged and convicted is at Atikankan junction, while Exhibit E1, bears along NTA Road, Ado-Ekiti. There is nowhere that Atikankan was mentioned in Exhibit E1. Exhibit E1, shows that the Appellant was arrested on 15/8/2016 at about 4.00pm. Whereas PW1, stated both in his documentary and oral evidence that the Appellant was arrested on 14/8/2016. I do not see how Exhibit E1, corroborates the evidence of PW1, as adjudged by the learned trial judge in view of the clear cut contradictions.
It is clearly deductible, from the findings of the trial judge, that he failed to properly exercise his function and duty, in assessing the evidence placed before it at trial. In the case of Emmanuel v State (2017) LPELR-43550 it was stated as follows:
“It is the duty of the trial Court, to specifically consider and evaluate, or assess the evidence placed before it by the Prosecution in proof of the recognized elements or ingredients that constitute the offence of manslaughter and make findings on each of them on the basis of the evidence. The law is that the prosecution bears the duty to prove all the essential ingredients of the offence an accused is charged with even when and where there is a confession by him or he did not say/utter a word throughout the trial. It is the primary duty of all trial Courts to ensure and be satisfied before finding an accused guilty for a criminal offence that the prosecution’s evidence has effectively rebutted the presumption of innocence.”
The issues above create serious doubt in the evidence of PW1, which the trial Court relied very heavily on to convict the Appellant. In the case of Anekwe v State (supra) the Court held as follows:
“Anyone of the issues herein discussed is sufficient to create serious doubt, as distinct from shadow of doubt in the evidence of PW5, on which the Court relied very heavily to convict the Appellant. Their cumulative effect drags the entirety of the evidence of PW5 far below the perspicacity, certainty and clearness to fix a crime upon any man where his life, his liberty or his property may be concerned…the evidence, to support a conviction, must not create room for speculation.”
In summation, l find that the evidence of PW1, heavily relied upon by the trial Court to convict Appellant does not come near proof beyond reasonable doubt that the Appellant robbed, PW1 with cutlass or any weapon. My considered view is that if the learned trial judge had properly adverted his mind to the evidence adduced, Appellant would not have been convicted and sentenced to death. This issue is resolved in favour of the Appellant. I set aside the conviction of the Appellant in count III. I consequently discharge and acquit the Appellant in count III.

RESOLUTION OF ISSUE ONE
Conspiracy has been defined as an agreement by two or more persons to commit an unlawful act or a lawful act with unlawful means coupled with an intent to achieve the agreement’s objective.
See Ajayi v The State(2013) 9 NWLR (pt 1360) 589, The State v Salawu (2011)18 NWLR (pt 1279) 580.
The offence of conspiracy is usually shrouded in secrecy. Therefore, it is established once it becomes clear to the Court that the conspirators knew of the existence and the intention or purpose of the conspiracy. In most cases, conspiracy is inferred or presumed. See Afolabi v The State (2013) 13 MWLR (pt 1371)292, Osuagwu v The State (2013) 1-2 SC (pt I) 37, Lawson v The State (1975) 4 SC 115, Mumuni v The State (1975) 6 SC 79.
Now, the offence of conspiracy to commit armed robbery is created by Section 6(b) of the Robbery and Firearms (Special Provisions) Act (supra). The offence of conspiracy is however not defined in that provision. However, in law, conspiracy is defined as an agreement between two or more persons to commit an unlawful act; or to do a lawful act by unlawful means. Let me refer to the Black’s Law Dictionary (9th Ed.) which defines conspiracy as:
An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective; and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.
It goes further to state that:
Conspiracy is a separate offence from the crime that is the subject of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspirators object is defeated.
Save for Section 96 of the Penal Code Law, which is applicable in most states in the Northern parts of Nigeria, I am unable to lay my hands on any other statutory definition of criminal conspiracy. The said Section 96 of the Penal Code Law, defines criminal conspiracy as follows:
96.(1) When two or more persons agree to do or cause to be done
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such agreement is called a criminal conspiracy.
It would appear that the above definition of conspiracy has been adopted and applied by the Superior Courts in Nigeria. Case law have therefore defined criminal conspiracy as an agreement between two or more persons to do or cause to be done, an illegal act or a legal act by illegal means. The offence of conspiracy can therefore be committed, only if there is a meeting of minds between two or more persons. The offence cannot therefore be committed by one person alone, as no person can agree with or conspire with himself. It is the actual agreement alone that constitutes the offence, and therefore, whether or not the actual offence is committed is irrelevant, since it is the agreement that the law punishes. See Kaza v. State (2008) 7 NWLR (pt.1085) 125 at 176; Yakubu v. State (2014) 8 NWLR (pt.1408) 111 at 123 â 124; Ogugu v. State (1990) 2 NWLR (pt.134) 539 at 549 and Aje v. State (2006) 8 NWLR (pt. 982) 345 at 359.
It should however be noted that the crime of conspiracy is one that is always hatched in absolute secrecy. It is therefore not always easy to determine at a glance what conspiracy is. Thus, the Courts always make reference to the facts adduced in order to see whether or not there is conspiracy. In other words, conspiracy has become a matter of inference to be drawn from the proved and admitted facts before the Court. Generally, the agreement to do the unlawful act is inferred from the acts done by the conspirators in furtherance of the act for which the conspiracy was hatched.
Thus, where there is no direct evidence of the conspiracy, the Court will resort to drawing inferences from the proved and admitted facts, so as to see whether or not the conspiracy charged has been established. See Akogun v. State (2018) 3 NWLR (pt.1605) 137, Omotola v. State (2009) 7 NWLR (pt.1139) 148 and Agugua v. State (2017) LPELR 4202 (SC). Thus in Daboh v. State (1977) All N.L.R. 146, the Lord Justice Udo Udoma, JSC said:
It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the person charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy. The authorities have agreed that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The peculiarity of the offence of conspiracy is that it is the actual agreement alone which constitutes the offence and it is not necessary to prove that the illegal act has in fact been committed.
Recently, in the case of Olakunle v. State (2018) 6 NWLR (pt.1614) 91 at 109 paragraphs B – C, My Lord, Eko, JSC said:
That in law, conspiracy can be inferred from acts of the accused where there is no direct evidence of an agreement between the accused. The law, from a long line of cases is settled that from the acts of the accused where there is no direct evidence of an agreement between the accused and another, criminal conspiracy can be inferred. It is the law, from a number of cases, that from the acts or manner the accused persons were doing things towards actualizing a common end, it can be inferred or deduced that they did so in furtherance of their conspirational agreement to commit the alleged offence.”

In the instant case, Appellant’s counsel contended that the conviction of the Appellant by the learned trial judge was not borne out of evidence on record, as the identity of the actual persons that attacked PW1, on 12/8/16 is unknown and therefore the finding that it was the Appellant is doubtful and perverse. Counsel is of the view that there is no evidence on record whether direct or circumstantial before the learned trial Court suggesting that the Appellant conspired with anyone to commit an unlawful purpose or the armed robbery for which the Appellant was charged, thereby making the conviction of the Appellant for conspiracy unfounded.

On page 51 of the record of appeal, the Appellant testified and stated:
“I don’t know PW1. I got to know PW1, at the police station after my arrest. I don’t know PW2 before. I got to know him at the state SIIB. I don’t know PW3. It is not true that l conspired with 2nd defendant to rob at Atikankan junction. The allegation of robbery against me is false. I did not rob anybody. I did not rob anybody on 6/6/ 2016.”
The learned trial judge held on page 76 of the record of appeal as follows:
“The defendants were charged with the offence of conspiracy in count l. Apart from the confessional statements of the defendants, there is no evidence in support of the charge of conspiracy.

The prosecution in the course of hearing the case adduced evidence through PW3 that the confessional statements of the defendants were made voluntarily and the defendants did not challenge the voluntariness or otherwise of the said statements.”

The Appellant’s counsel from the finding of the trial judge above, rightly argued that there was no evidence in support of the charge of conspiracy against the Appellant.

I am of the considered view that the learned trial judge wrongly relied on the contents of Exhibit E1, Appellant’s retracted confessional statement, which contradicted the evidence of the PW1. The Appellant on pages 40-41 of the record of Appeal retracted Exhibit E1, as it was made behind him, but the learned trial judge admitted same, and attached much weight, and value to the retracted statement Exhibit E1 without subjecting same to the six acid tests. The Supreme Court in the case of Adesina & Anor v The State (2012) 14 NWLR (PT.1321) 429, 447 per Adekeye, JSC stated that the factors to be considered in ascertaining whether to convict on a retracted confession have been stated and restated in several decisions as follows:

“(1) whether there is anything outside the confession to show it was true; (2) whether it is corroborated, (3) whether the statements made in it are in fact true as far as they can be tested (4) whether the prisoner had the opportunity of committing the crime, (5) whether the confession is possible, (6) whether the confession is consistent with other facts which have been ascertained and which have been proved. These are the questions which a trial judge is to ask himself in ascribing weight to be accorded a retracted confession and whether to convict solely on such a confession.”

Premised on the above decision and the finding of the learned trial judge that, “apart from the confessional statements of the defendants, there is no evidence in support of the charge of conspiracy against the Appellant”, l agree with the submissions of Appellant’s counsel, that the finding of the learned trial judge convicting the Appellant is perverse. For an accused to be convicted solely on his confessional statement, there must be evidence of fact on record to show that the confession is true, the confession must be corroborated by the other evidence on record, and it must be consistent with other facts already proved or established by the record. I have carefully perused the record of appeal, and l agree with the learned trial judge that there is no evidence of conspiracy on record, consequently the above six questions are answered in the negative and in favour of the Appellant, as the weight to be accorded to the confessional statement is predicated on evidence on record, which l make bold to state does not exist in this instant case as found by the trial Court.

The conviction of the Appellant, by the learned trial judge on page 76 of the record of appeal, despite the fact that he stated that there is no other evidence on record in support of the charge of conspiracy against the Appellant is perverse and a miscarriage of justice against the Appellant.

I am not satisfied with the trial Court that the prosecution proved the conspiracy against the Appellant.

From the evaluation of the evidence by the trial judge, it is not in doubt that His Lordship did not carry out the necessary tests, with respect to the charge of conspiracy viz a viz the confessional statements, his Lordship observed:
“The defendants were charged with the offence of conspiracy in Count 1. Apart from the confessional statements of the defendants, there is no evidence in support of the charge of conspiracy. The prosecution in the course of hearing the case adduced evidence through PW3, that the confessional statements of the defendants were made voluntarily and the defendants did not challenge the voluntariness or otherwise of the said statements. The said statements are relevant against each of the defendants from which inferences of conspiracy can be drawn. The confessional statements of the defendants Exhibits E1,and F1, disclosed conspiracy to commit armed robbery. In the circumstance, l am of the view, that the prosecution has proved the charge of conspiracy against the defendants and l so hold.”
The response of the 1st Accused, person now Appellant to the count of conspiracy to commit armed robbery, is a complete denial, stating that it is not true that he conspired with 2nd Accused to rob at Atikankan junction. That the allegation of robbery against him was false. I however wish to refer to certain portions of the Exhibit E1, the confessional statement credited to 1st Accused person by the Police which the accused person has retracted.
In Exhibit E1, the 1st Accused/Appellant stated:
“I am a native of Ilorin in Kwara State. I was born 17 years ago into the family of Mr. and Mrs. Adisa Olawale in Kwara State, l attended Oyi-Araromi Primary School at Ila-Orangun, Osun State, also attended Arutu Memorial Secondary School at Basekin at Ila-Orangun, Osun State respectively, where l obtained my Secondary School Certificate in the year 2008. I was unable to continue my education due to financial problems then, l began to engage myself in riding motorcycle popularly called Okada to sustain myself at Ila-Orangun in Osun State, but unfortunately the motorcycle which was given to me as an insulilment sic (installment) was stolen in my house at the midnight. Meanwhile on 14/8/2016 at about 20.00 hours along NTA Road, Ado-Ekiti one Juwon David and l did conspire and block one Sergeant Olowoyeye Olumide with the aim of dispossessing him off his motorcycle, with the use of some weapons such as cutlass and shovel and during the course of struggling with us, l used the cutlass to machete him on his head and his right hand during which he was severely injured and we later escaped from the scene with his motorcycle Bajaj, and while l sighted the presence of Policemen along National Assembly Road, l later abandoned the motorcycle near a bush, before l was later arrested on 15/8/2016, at about 04.00 inside one church in Ado-Ekiti, while l am trying to (thief) took one motorcycle inside the church.”
The question is whether Exhibit E1, having been retracted is it good evidence against the 1st Accused, in proof of and corroboration that the Accused persons were working in concert to rob PW1, while in company of offensive weapons…
Having carefully perused Exhibit E1, I find that Exhibit E1, contradicts the evidence of PW1, with respect to the date the robbery was committed. By Exhibit E1, the alleged crime was committed on 14/8/2016 and it further stated that the Appellant was arrested only on 15/8/2016, the Appellant cannot therefore be the actual person or among the people that committed the alleged offence for which he was charged and convicted. This is because there is no nexus between the evidence of PW1 and PW3.

The Charge Sheet and the contents of Exhibit E1, concerning the date of commission of the offence and the place, if not mere mentioning of “along NTA Road”.
I am of the considered view that the evidence of PW1, is one which no weight ought to be attached due to it’s obvious doubts and contradictions.
In counts l and III for which the Appellant was convicted on the body of the Information/Charge Sheet before the lower Court, the scene of crime is clearly stated to be at Atikankan Junction, Ado Ekiti, whereas PW1, gave contrary evidence that he was attacked along NTA Road, close to House of Assembly Complex, Ado-Ekiti. I am of the view that the Appellant cannot be held liable for a crime that was allegedly committed at Atikankan Junction, Ado Ekiti and along NTA Road, close to House of Assembly complex, Ado-Ekiti at the same time and the same person. These are evidence of clear contradictions, and the learned trial judge is not empowered to pick and choose the evidence he wants to believe.
In Musa v State (2009) LPELR-1930(SC) 35-37 para G-A, the Supreme Court held that:
“Where there are contradictions in the testimonies of the prosecution witnesses on material fact, and the contradictions are not explained by the prosecution through any of the witnesses, the trial Court must not be left to speculate or proffer explanation for such contradictions, so that it will only find itself in a position where it will pick and choose from the evidence of the prosecution which it will believe.”
I agree with Appellant’s counsel that the learned trial judge was wrong to have regarded the inconsistencies, as mere discrepancies instead of resolving same in favour of the Appellant due to the obvious doubts.
It is clear in this case that the crime scene contained on the Information/Charge Sheet for which the Appellant was charged and convicted is totally different from the scene of crime stated in evidence, and there was no amendment of the Information/Charge throughout the proceedings. Therefore the Appellant cannot be rightly convicted in the light of these obvious contradictions regarding crime scene among other contradictions. In this instant case, miscarriage of justice has been occasioned against the Appellant. See the case of Edosa & Anor v Ogiemwanre (2018) LPELR-46341 ( SC) 50-51 para B-E.
The evidence of PW1 heavily relied on by the lower Court to convict the Appellant does not prove beyond reasonable doubt, that the appellant robbed PW1 with cutlass or any weapon whatsoever.
I therefore hold that the learned trial judge was wrong when he found that the charge of conspiracy to commit armed robbery against the Appellant was proved beyond reasonable doubt. This issue is also resolved in favour of the Appellant. I hereby therefore discharge and acquit the Appellant.

On the whole therefore, I hold that this appeal is meritorious. It is accordingly allowed. The judgment of Ekiti State High Court, sitting in Ado-Ekiti, delivered on the 20th day of December, 2018 in Suit No: HAD/100C/2017 is hereby set aside. The Appellant is hereby discharged and acquitted.

THERESA ORJI ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A. (DISSENTING): In respect of the above appeal, I hereby submit my own judgment as I do not agree with the lead judgment delivered by my learned brother FATIMA OMORO AKINBAMI JCA delivered on the 8th September, 2020. In the said appeal,

I dismissed same as being unmeritorious.
Appeal Dismissed.

Appearances:

CLEMENT OYEDELE AKINTOLA, ESQ., with him, SAMUEL O. OGUERI, ESQ. For Appellant(s)

OLAWALE FAPOHUNDA, ESQ., A.G EKITI STATE with him, L. B. OJO, ESQ., SOLICITOR- GENERAL, EKITI STATE, JULIUS AJIBARE, ESQ., D.P.P F.O AWONIYI, ESQ., CHIEF LEGAL OFFICER and O.F AJUMOBI, ESQ., PRINCIPAL LEGAL OFFICER For Respondent(s)

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