UGWO v. STATE (2022)

UGWO v. STATE

(2022)LCN/16570(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, April 11, 2022

CA/S/22C/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

EMMANUNEL UGWO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

In UGBOJI V. STATE (2017) LPELR-43427 (SC) AT P. 28, the Supreme Court, Per SANUSI, JSC held:
“The law is well settled, that the prosecution always has the burden to prove the commission of an offence (See Section 138 of the Evidence Act 2011 (as amended). This tallies with time honoured principle of law that who asserts must prove. In criminal cases the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of Ani V. State (2000) 6 SCNJ 98 at 107”.
However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. Proof beyond reasonable doubt simply entails adducing sufficient evidence to prove the ingredients of the offence in any given case. See UCHE V. THE STATE (2015) 11 NWLR (PT. 1470) 380 and HASSAN V. THE STATE (2016) LPELR-42554 (SC).

THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

What then are the ingredients of armed robbery? In SAMUEL AKHILOMEN V. THE STATE (2017) LPELR-42668 (CA) Per ONIYNGI, JCA, it was held that:
“For the offence of robbery, the ingredients that must be proved by the prosecution are- 1. There was a robbery 2. That there was use or arms or other offensive weapons. 3. That the accused person was the robber or one of the robbers”.
See also DONDOS V. STATE (2021) LPELR-53380 (SC) and BOZIN V. THE STATE (1985) 2 NWLR (PT. 8) 465 AT P. 469. PER GUMEL, J.C.A.

WAYS OF PROVING THE COMMISSION OF A CRIME

THE POSITION OF LAW ON THE NATURE OF A CONFESSIONAL STATEMENT

In OWOLABI KOLADE V. THE STATE (2015) LPELR-41662 (CA) Per OKORONKWO, JCA (P. 35, Paras. B-C), it was held that:
“Indeed, I would say that once properly admitted and is believed, a confessional statement nullifies or neutralizes all other statements inconsistent with it”.
Also, in OSENI V. STATE (2012) LPELR-7833 (SC) Per ADEKEYE, JSC (P. 43, Paras. B-D) it was stated:
“There is no evidence stronger than a person’s own admission or confession. Such a confession is admissible. A confession made in judicial proceedings is of greater force or value than all other proofs. A confession is more often denied or retracted. The denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie V. State (2007) 9 NWLR (Pt. 1038) Pg. 30 Ukpong V. Queen (No. 1) (1961) 1 SCNLR 23 Idowu V. The State (2007) SC (Pt. II) Pg. 50”.
A confession is a free and voluntary admission of guilt by an accused person. PER GUMEL, J.C.A.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Sokoto State, in the Sokoto Judicial Division, which was delivered on the 23rd April, 2019. In the judgment, the learned trial Judge found the Appellant guilty of the offences of armed robbery and criminal conspiracy and sentenced him to death by hanging.

The Appellant as the 1st accused person along with the 2nd, 3rd, 4th-5th accused were charged before the High Court of Justice, Sokoto on a two-count charge of criminal conspiracy and armed robbery, punishable with death by hanging contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act CAP R11 LFN 2004. The particulars of the offence read as follows:
1. That you (1) Emmanuel Ugwo (2) Oikhena Joseph (3) ThankGod Sunday (4) Habibu Abdullahi and (5) Garba Sama’ila on or about the 1st day of June, 2014 at about 300 hours, near PDP office at Illela town in Illela Local Government of Area of Sokoto State within the Sokoto judicial division agreed to do an illegal act, to wit commit armed robbery and that act was done in pursuance of the said agreement, you thereby committed an offence punishable under Section 6 (b) of the Robbery and Firearms (Special Provision) Act CAP R.11 Laws of the Federation of Nigeria 2004.
2. That you (1) Emmanuel Ugwo (2) Oikhena Joseph (3) ThankGod Sunday (4) Habibu Abdullahi and (5) Garba Sama’ila on or about the 1st day of June, 2014 at about 1900 hours, at Illela Market of Illela Local Government Area of Sokoto State within the Sokoto Judicial division while armed with one Ak, Pistol and two locally made pistols attacked and robbed the shop of one Alhaji Bello Usman and dispossessed Sa’idu Bello (Alh. Bello Usman agent), the sum of N15,341,320.00 (Fifteen Million, Three Hundred and Fourty-One Thousand, Three Hundred and Twenty Naira Only) and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria 2004.

The 1st-5th accused pleaded not guilty to the charges and the prosecution opened its case and called a total number of 9 witnesses (PW1-PW9) and tendered in evidence 21 exhibits. The 1st accused person testified in his own defence as DW1. The 1st accused gave his evidence in Hausa language and same was translated to English Language. At the close of the case for the defence, counsel to the parties filed written addresses, which can be found at pages 46-107 of the record of appeal. The High Court delivered its judgment on 23rd April, 2019 and found the Appellant guilty of the offence of armed robbery and criminal conspiracy. The Appellant was thereafter, sentenced. The judgment of the High Court can be found at pages 172-195 of the record of appeal.

The Appellant being dissatisfied with the judgment filed this appeal against his conviction and sentence via Notice of Appeal filed on 18th June, 2019 which can be found on pages 197–199 of the record of appeal.

The Appellant’s counsel Mr. Ikechukwu Uwanna Esq., settled the Appellant’s brief and formulated two issues for determination in this appeal thus:-
i. Whether the prosecution proved the offence of armed robbery? (Grounds 1 and 3); and
ii. Whether the prosecution proved the offence of criminal conspiracy beyond reasonable doubt? (Ground 2).

On issue one, learned counsel to the Appellant submitted that the prosecution failed to prove the offence of armed robbery against the Appellant as the ingredients of the offence were not proved by the prosecution beyond reasonable doubt against the Appellant. He stated that the burden of proof in a criminal case rests solely on the prosecution and never shifts, even where the accused in his statement to the police admitted committing the offence. He commends the case of Awosika V. The State (2010) 9NWLR (Pt. 1198) 149.

Learned counsel stated that Section 135 (1), (2) and (3) of the Evidence Act 2011 contain provisions as to the standard proof and the burden of proof in criminal proceedings, as in this case, is stated thus:
Section 135
(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.

Learned counsel listed the ingredients of the offence of armed robbery that the prosecution needs to establish as:
a. That there was indeed a robbery or series of robberies;
b. That the robbers were armed with dangerous weapons; and
c. That the accused person was the robber or one of the robbers.

Learned counsel to the Appellant submitted that failure of the prosecution to prove any of the above ingredients is fatal to its case. He commends the case of Bozin V. The State (1985) of NWLR (Pt. 8) 465 at 471.

Mr. Ikechukwu Uwanna, of counsel submits that, on the first ingredient, there is no doubt that there was a robbery at Illela market on that day. That the second ingredient was also proven beyond reasonable doubt. But that the learned trial Judge fell into grave error when he found that the third ingredient was also proven. He posited that an offence can be proved by any of the following criteria:
i. The confessional statement of the accused person duly proven and admitted;
ii. By direct evidence of eye witnesses who actually saw the accused committing the offence charged.
iii. By circumstantial evidence which is complete, cogent, unequivocal and led to irresistible conclusion that the accused committed the offence alleged. He referenced Emeka V. State (2001) 9 FWLR (Pt. 66); Dogara Giwa V. The State (1996) 4 SCNJ 95.

Learned counsel submitted that the learned trial Judge erred in his judgment when he relied on the alleged confessional statement of the Appellant and held that the identification of the Appellant was sufficiently proved by his confessional statement. He argued that the Appellant retracted his confessional statement and also testified that he was forced to sign Exhibit N. That it is trite when an accused person retracts statement made to the police at trial his testimony is to be treated as unreliable, while the statement is not evidence upon which the Court can act. He cited Umani V. The State (1988) 1 NWLR (PT. 70) 274, where Nnamani JSC held that:
“In the recent case of Oladejo V. State (1987) 3 NWLR Pt. 61 364 at 427 this Court dealt with this matter in greater detail. There I said as follows: “Contrary to the conclusion of the learned trial Judge, the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which a Court can act”. See PP. 427-428”.

It was stated that the learned trial Judge failed to properly evaluate the inconsistent and contradictory facts in the extra judicial statement of the Appellant (Exhibit N) against his oral evidence. That the evidence retracted the statement made to the Police and at trial gave inconsistent testimony. That the learned trial Judge was wrong to have disregarded the Appellant’s oral evidence and relied on Exhibit N which was also inconsistent and unreliable. That the law is that a Court when faced with a situation where a defendant retracts his statement and leads contradictory or inconsistent testimony should not see such evidence as reliable.

The Appellant’s counsel argued that despite the manifest inconsistency, which distorted and failed to prove that the Appellant committed the offence, the trial Judge still went ahead to convict the Appellant. He argued that the Court cannot pick and choose what to believe and what not to believe. He refers to Onubogu V. State (1974) 9 SC at 17-21, Uchehi Orisa V. The State (2018) LPELR-43896 (SC). It was stated that it is the principle observed by our Courts that where there are gaps or conflicting versions in the evidence adduced by the prosecution an appellate Court will take the version favourable to the accused. That the Appellant did not admit the evidence of the 2nd, 3rd and 4th accused persons and thus the confessional statement of the 2nd, 3rd and 4th accused persons is not evidenced against the Appellant for the offence of armed robbery.

Furthermore, Mr. Ikechukwu Uwanna, of counsel submitted that the evidence of PW2 and PW3 are clearly direct evidence of the armed robbery that occurred but both evidence failed to irresistibly link the accused person with the commission of the offence of armed robbery. He argued that the trial Judge erred when he held that the evidence of PW2 and PW3 linked the Appellant to the commission of the offence, for, contrary to this finding, there was no evidence before the Court that qualified as direct evidence of eye-witness to prove the identity of the Appellant to the commission of the offence. He said the evidence of PW2 and PW3 did not identify the Appellant to the commission of the offence of armed robbery. That PW2 at Page 17 of the record of appeal testified that “I cannot identify the robbers that met me because I was scared”. That also, PW3 on oath at page 18 of the record of appeal stated that “he saw the robbers when they were passing in high speed with golf”, and added that he saw the 2nd, 3rd and 4th accused at Rabah Police Station. That the evidence of PW2 and PW3 did not specifically mention the Appellant. That PW3 only identified the 2nd, 3rd and 4th accused persons and did not identify the 1st accused (the Appellant). He cited Samuel Bozin V. The State (1985) 7 NWLR (Pt. 8) 465 at 471.

Going further, learned counsel to the Appellant submitted that the circumstantial evidence of PW5, PW8, PW9 and Exhibits A, A1, C, C, D, E, F, G did not link the Appellant with the commission of the offence of armed robbery. That the resultant position is that there was no evidence of identification of the Appellant as one of the robbers.

That there was a broken chain in the circumstantial evidence of PW5, PW8 and PW9 pointing irresistibly to the conclusion that the accused person and no other committed the offence, as there is no nexus between Exhibits A, A1, C, C, D, E, F, G recovered and the Appellant’s participation in any armed robbery in the light of his inconsistent confessional statement (Exhibit N) and the evidence of PW2 and PW3. He referenced Valentine Adie V. The State (1980) LPELR-176 (SC).

It was submitted that the evidence of identification was weak and thus the prosecution has not proved the 3rd ingredient of the offence of armed robbery against the Appellant beyond reasonable doubt. He then urges the Court to resolve this issue in favour of the Appellant.

On issue two, learned counsel argued that the prosecution failed to prove the offence of criminal conspiracy beyond reasonable doubt. He explained that conspiracy as an offence means an agreement of two or more persons to do an act, which it is an offence to agree to do. That 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. Learned counsel listed the ingredients of the offence of criminal conspiracy as:
a. There must be an agreement between two or more persons to and illegal act or an act which is not illegal by illegal means;
b. The illegal act was done in furtherance of the agreement; and
c. That each of the accused persons participated in the illegality or conspiracy.

On the first ingredient, learned counsel argued that the learned trial Judge erred when he held that the prosecution proved that there was an agreement between the Appellant and the 2nd, 3rd and 4th accused to do an illegal act. He said there was no independent evidence or any fact from which the learned trial Judge could infer the Appellant had a meeting of the mind or a pre-arranged design with the accused persons to commit the offence of armed robbery. It was stated that the Appellant retracted his inadmissible confessional statement and so the learned trial Judge was wrong to have inferred that the Appellant was guilty of criminal conspiracy on the said inconsistent and unreliable statement.

Further, learned counsel to the Appellant Mr. Ikechukwu Uwanna Esq., submitted that the learned trial Judge erred in law by going against established principles that have held repeatedly that the confessional statement of a co-accused person is not evidence against an accused unless it was made in the presence of the accused and adopted it by words or conduct. That it is trite that when more persons than one are jointly charged with a criminal offence, and one of them makes a confession, and such a statement is given in evidence, the Court shall not take such statement into consideration against a co-accused unless such co-accused adopts it. Reference was made to Danlami Ozaki V. The State (Supra); Alo V. State (2015) SCNJ P. 405 at 449 and State V. Onyeukwu (2004) 22 LRCW P. 5245 at 5267.

It was stated that from the records, the Appellant neither adopted the confessional statement of the 2nd, 3rd and 4th accused persons cannot be used against the appellant to establish an agreement to do any illegal act. He cited the case of Alban Ajaegbo V. The State (2018) LPELR-44531 (SC), where Nweze JSC held thus:
The law therefore is that the confessional statement of an accused person cannot be used against a co-accused person unless it is adopted by the said co-accused person, Ozaki V. The State (Supra); Suberu V. The State (2010) 8 NWLR (Pt. 1197) 586. For this purpose, the adoption of the statement of an accused person can be by words or conduct, Alarape V. State (2001) 2 SC 114; Wakala V. The State (1991) 8 NWLR (Pt. 211) 552; Enbuomwan V. Commissioner of Police (1961) NWLR 257. The Appellant, from the records, neither adopted the said entries by word nor by his conduct. Thus, Innocent Ekeanyanwu confession could not have been used against the Appellant, as the lower Courts wrongly held Ozaki V. The State (Supra), Suberu V. The State (2010) 8 NWLR (Pt. 1197) 586. It is for these and the more elaborate reasons in the leading judgment that I too set aside the judgments of the lower Courts. I abide by the consequential orders in the leading judgment”.

It was submitted that the learned trial Judge erred in his finding as it relates to the Appellant and it should be set aside. He argued that it is axiomatic that it takes two to make a pair. That, no matter how daunting or graphic the actus reus, the absence of mens rea will render comatose and paint a blurred indiscernible picture of the sequences of events in the case, which is then riddled with doubts. He argued that the prosecution failed to establish the mens rea or criminal intent in the offence charged and so the 2nd ingredient will also fail as the actus reus cannot go alone in the absence of the mens rea. It goes without saying that there are no existing circumstances presented by the evidence available to the trial Court which could conclusively point to the guilt of the Appellant herein.

On the third ingredient, that: that each of the accused person participated in the illegality or the conspiracy, learned counsel to the Appellant argued that there should not be any controversy with regard to the identity of the Appellant. He commends Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 at 821.

The Appellant counsel submitted that the evidence of the 2nd, 3rd and 4th accused persons are not relevant evidence against the Appellant and cannot be relied upon by the Court to establish that the Appellant participated in the illegality. That also, the Appellant’s statement was inconsistent with his testimony and therefore cannot be relied on by the Honourable Court. The Court is urged to hold that the third ingredient of criminal conspiracy was not proved against the Appellant and accordingly enter a verdict of discharge and acquittal in favour of the Appellant.

The Respondent’s counsel Mr. Steve O. Emelezie Esq filed his Brief of Argument dated 12th of October, 2021 but deemed filed on the 14th of October, 2021. In the said Brief, as settled by its counsel Steve Emelieze Esq, the two issues raised for determination of this appeal by the Appellant were adopted by the Respondent. The issues are:
i. Whether the prosecution proved the offence of armed robbery? (Grounds 1 and 3); and
ii. Whether the prosecution proved the offence of criminal conspiracy beyond reasonable doubt? (Ground 2).

On issue one, learned counsel to the Respondent submitted that the Appellant’s contention that the trial Court was wrong in finding that the prosecution proved the offence of armed robbery against him is misconceived and ought to be rejected. He argued that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt but rather it entails adducing of sufficient evidence to prove the ingredients of the offence in any given case. He cited the case of ADEREMI ADEROUNMU V. FRN (LER (2019) CA/L/782C/2018, where this Court Per E. Tobi, JCA, held as follows:
“The apex Court in a cloud of cases established beyond any dispute what will amount to proof beyond reasonable doubt. This does not mean beyond all doubt or shadow of doubt. There cannot probably be any proof that can be beyond all doubt or shadow of doubt. For as long as we are on this side of life, it will be expecting and demanding too much to prove a criminal case beyond any shadow of doubt. There will be some doubts here and there but the doubt to be relevant, as to affect the case of the prosecution, must relate to any of the ingredients of the offence. That is what really counts. Anything apart from that will not be a relevant doubt. I will take a few cases on this point. In Alabi Vs. State (1993) 7 NWLR (Pt. 307) 511, the Supreme Court held:
“Before it can rightly be said that the prosecution has proved its case beyond reasonable doubt therefore, every ingredient of the offence charged, which in the instant case is robbery must be established. In other words, if one element is left out then there is no proof beyond reasonable doubt”.

Learned counsel agreed with the Appellant on the ingredients of the offence of armed robbery and stated that there is no dispute about the first and second ingredients. That it is the third ingredient that is the bone of contention. He said it is trite law that in proof of the commission of a crime, the prosecution may do so by any of the following ways:
a. Confessional statements of the accused person duly proven and admitted;
b. Evidence of any eye witness; or
c. Circumstantial evidence.

The Respondent’s counsel argued that in the instant case, the prosecution amply and sufficiently adduced all of the above to secure the conviction of the Appellant and the 2nd, 3rd and 4th accused persons. He stated that on 2nd June, 2014, the Appellant volunteered a statement to the police. That the statement was admitted in evidence as Exhibit N on 6th March, 2018 and that the extra-judicial statements of the other accused persons were also admitted in evidence as Exhibits M, O and P. That all, except the statement of 2nd accused person, Exhibit M, were admitted in evidence without any objection from the Appellant and the other accused persons as they withdrew their objection at the trial within trial. It was submitted that a confession is a free and voluntary admission of guilt by an accused person. Reliance was placed on OSENI V. STATE (2012) VOL 2 MJSC (PT. II) 123.

Respondent’s counsel further argued that the confessional statement of an accused person is often considered as the evidence of the highest quality and the most satisfactory of all the evidence. Reliance was placed on ONUOHA V. THE STATE (1987) 4 NWLR (PT. 65) 331. He stated that where a confessional statement of an accused person is admitted in evidence, it obviates the need for the prosecution to prove the guilt of the accused person beyond reasonable doubt. He cited SOLOLA V. THE STATE (2005) 3 QCCR 160 AT PP. 188-189, where the Supreme Court held inter-alia, that:
“A confessional statement is the best evidence in our criminal procedure…. Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused”.

Mr. Steve argued that in the instant case, the Appellant did not contest the voluntariness of Exhibit N, the confession contained in the said exhibit. That aside from the fact that the confession in Exhibit N is direct, positive and unequivocal, there were pieces of evidence outside the exhibit which showed it is true and as far as the contents therein could be tested, they are true. That for example, Exhibit N was corroborated by the evidence of PW2 and PW3 as well as the evidence of the police witnesses, particularly the evidence of PW5 and PW8 who arrested them and the evidence of PW1, PW6, PW7 and PW9 who investigated and took statements of the Appellants and the other accused persons.

It was further argued that ample evidence exists on the record showing that the Appellant had sufficient opportunity to commit the crime he confessed to in Exhibit N. It was argued that the entire contentions of the Appellant in relation to Exhibit N or the claim that the trial Court relied on Exhibit N to convict the Appellant clearly overlooks the finding of the trial Court.

Learned counsel argued that, the prosecution presented to the satisfaction of the trial Court, eye witness evidence of PW2, PW3, PW5 and PW6 showing how the robbery was committed, how the robbers fled the scene; and how the robbers were arrested and found in possession of the Volkswagen Golf Wagon, the exact amount stolen at the shop and the guns used in the robbery.

In the Appellant’s Brief of Argument, it was contended that because PW2 said he could not identify the robbers when the crime took place in his shop, the prosecution ought to have conducted identification parade and the failure to do so was fatal to the prosecution’s case. To this, learned counsel to the Respondent submitted that in view of the circumstances of this case and the testimony of the PW2, identification parade was not necessary and would not have served any practical purpose.

On circumstantial evidence, learned counsel submitted that at the trial, some facts and circumstances were never disputed and that those undisputed facts and circumstances constitute ample circumstantial evidence that positively showed that the Appellant committed the offence of armed robbery. That circumstantial evidence is a major mode of proving the commission of an offence, especially as eyewitness evidence is hardly possible in many cases. That if circumstantial evidence is positive and direct a Court can convict on it alone. He placed reliance on IKOMI & ORS VS. THE STATE (1986) 1 NSCC 730.

Reliance was also placed on the case of KINGSLEY OMOREGIE V. THE STATE (2017) LPELR-42466 (SC) where the Supreme Court held as follows:
“Infact, it is stated in the parlance of criminal jurisprudence that circumstantial evidence is often regarded as a reliable and acceptable mode of proof of a criminal case and the Court can accept and act on it, provided it is cogent and admissible. See SHUAIBU ABDU V THE STATE (2016) LPELR-41461 (SC), USMAN V STATE 2013 B NWLR (Pt. 1342) 607; MAIGARI V STATE (2010) 16 NWLR Pt. 43949; NWAEZE V. STATE (1996) 2 NWLR (Pt 428; HARUNA VS AG FEDERATION (2012) 9 NWLR Pt. 1306-419; ADEKOYA V STATE (2012) 9 NWLR (Pt. 1306) 539”.

On the strength of the above, learned counsel urged this Court to hold that the prosecution proved the commission of the offence of armed robbery against the Appellant beyond reasonable doubt and to further hold that the entirety of what the Appellant said in his evidence in chief are an afterthought and ought to be rejected.

On issue two, that is whether the prosecution proved the offence of criminal conspiracy beyond reasonable doubt, learned counsel to the Respondent submitted that the contentions of the Appellant that he was wrongly convicted of the offence of conspiracy are unfounded and lack merit. He stated that the ingredients of the offence of conspiracy are:
i. That there is an agreement of two or more persons;
ii. That the agreement is to carry out an unlawful act or lawful act in an unlawful way.

But also, learned counsel stated, some authorities classified the ingredients as follows:
a. There must be an agreement between two or more persons to and illegal act or an act which is not illegal by illegal means;
b. The illegal act was done in furtherance of the agreement; and
c. That each of the accused persons participated in the illegality or conspiracy.

The Respondent’s Counsel argued that the central theme common to all the ingredients of the offence of conspiracy is common intention or that the accused persons had an agreement to commit an act which is in itself an offence, such as armed robbery in this case. He cited OGBU V. THE STATE (2007) 2 NCC 355 AT P. 359 (also reported in (2007) 5 NWLR (PT. 1028) 635, where it was held that common intention.
“…May be inferred from the circumstances described in the evidence led before the trial Court and it need not be provable only by the express agreement of the accused persons”.

Mr. Steve O. Emelieze argued that the agreement to commit the offence of armed robbery could be inferred and was rightly inferred by the lower Court in view of the following circumstances and pieces of evidence:
a. The evidence adduced by the prosecution, especially through PW2, PW3, PW5, PW8 and PW9 as well as the evidence presented by the Appellant himself;
b. The contents of Exhibit N, the Appellant’s Confessional Statement;
c. The contents of Exhibits M, O and P;
d. The undisputed/unchallenged evidence of armed robbery committed in the shop managed by PW2;
e. The stealing of N15,341,320.00
f. The evidence that the same Volkswagen Golf Wagon seen to have fled the locus criminis with the money and was stopped at the Police check point at Raba with same money, weapons and the accused persons.
g. The circumstances under which the Appellant and the 2nd, 3rd and 4th accused persons left Kano for Sokoto State, arrived Illela at 0300hours and stayed in the same place for several hours before the crime was committed; and
h. The fact that the Appellant and 2nd, 3rd and 4th accused persons were found on the same route leading from the scene of the crime (in possession of guns and the money stolen from the shop) in the same vehicle which was seen running away at high speed after the robbery incident.

The Respondent’s counsel posited that from all the above itemized pieces of evidence and/or circumstances, the trial Court was right in holding that the Appellant and the 2nd, 3rd and 4th accused persons fully participated in the conspiracy and the commission of the armed robbery. He urged the Court to so hold.

RESOLUTION OF ISSUES
Having read the submissions of the learned counsel to the parties and having a thorough understanding of the issues, I will now proceed to determine this appeal by adopting the issues as raised by the Appellant. I reproduced them below:
i. Whether the prosecution proved the offence of armed robbery against the Appellant.
ii. Whether the prosecution proved the offence of criminal conspiracy beyond reasonable doubt.

Before I begin the resolution of the issues, I will like to address some anomalies pointed out by the learned counsel to the Respondent in the Appellant’s Amended Notice of Appeal.

I agree with the learned counsel to the Respondent that the Appellant has not distilled any issue from grounds 4 and 5 of the Amended Notice of Appeal and therefore deemed abandoned. They are hereby struck out. See OJEGBE V. OMATSONE (1999) 6 NWLR (PT. 608) 591 AT PP. 597-598.

Further, ground six could not have given rise to any issue as same is incompetent being a civil omnibus ground of appeal as argued by the Respondent. See PWAJOK V. NYAM (1994) 2 NWLR (PT. 324) 81 AT P. 91.
Consequently, ground six is also struck out. Now, the determination of the substantive appeal.

ISSUE ONE
Whether the prosecution proved the offence of armed robbery against the Appellant (Ground 1 and 3).

In his Brief of Argument, the Appellant accepted that the prosecution did successfully prove the first and the second ingredients of armed robbery, that: There was robbery; and that it was an armed robbery. Consequently, we are left with the third ingredient: ‘That the accused person is one of the robbers’ is what is left to be proved beyond reasonable doubt.

In cases of MOSES V. STATE (2002) LPELR-12259 (CA) Per ADEKEYE, JCA (P. 21, Paras. B-F) it was held that:
“There are three ways of proving commission of crime:
a. Confessional statement
b. Circumstantial evidence
c. Evidence of eyewitnesses. EMEKA V. STATE 2001 4 NWLR Pt 734 Pg. 666.
The prosecution relied on an eye witness account of the accident as produced by PW5- Wole Afuye- a passenger in the Volkswagen at the time of the accident. He was then sitting at the back of the car and claimed to see clearly what transpired on the road at the time of the accident. An eyewitness account or otherwise is the best evidence. IMO V. STATE 2001 1 NWLR Pt. 694 Pg. 314”.
Thus, pertaining to the issue in dispute, the search for the truth would be conducted utilizing the following tools:
a. Confessional statements of the accused person duly proven and admitted;
b. Evidence of an eye witnesses; or
c. Circumstantial evidence.
See IGABELE V. THE STATE (2006) 6 NWLR (PT. 975) 100.

First let me consider the confessional statement- What is the nature of a confessional statement? In OWOLABI KOLADE V. THE STATE (2015) LPELR-41662 (CA) Per OKORONKWO, JCA (P. 35, Paras. B-C), it was held that:
“Indeed, I would say that once properly admitted and is believed, a confessional statement nullifies or neutralizes all other statements inconsistent with it”.
Also, in OSENI V. STATE (2012) LPELR-7833 (SC) Per ADEKEYE, JSC (P. 43, Paras. B-D) it was stated:
“There is no evidence stronger than a person’s own admission or confession. Such a confession is admissible. A confession made in judicial proceedings is of greater force or value than all other proofs. A confession is more often denied or retracted. The denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie V. State (2007) 9 NWLR (Pt. 1038) Pg. 30 Ukpong V. Queen (No. 1) (1961) 1 SCNLR 23 Idowu V. The State (2007) SC (Pt. II) Pg. 50”.
A confession is a free and voluntary admission of guilt by an accused person. And from the statement of the Appellant in Exhibit N, the following account is relevant:

“On the 31/05/2014 at about 1600hours, to Sokoto, we were four in number, myself Emmanuel Ugwo, Musa, ThankGod and Joseph all (M) of Kano. It was Musa who contracted me to come to Sokoto, then I contracted ThankGod and ThankGod contracted Joseph, I know Musa at about one month now, I knew him in the hotel I work, he do come there to drink, and he ever dashed me one thousand naira once, I use to see Musa with much (sic) money. Then we left Kano to Sokoto with the intension (sic) to robbed (sic) in Sokoto that we should come and collect money from him, we arrived Illela 0300hours then we parked at PDP office, then Musa called his friend then they left with Musa into the market, they did not come back until evening time. As they came they came with gun, then at about 1900hours, Musa including other person that I don’t know their name went to the house we robbed (sic) with Musa and the other persons went into the compound with their guns and I was outside waiting for them to come out, as they came out they came out with money carton full, then we rushed to our car and people were shouting thief, and immediately the driver of our car Joseph move our car quickly, and he was driving (sic) on high speed, and later we were intercepted (sic) at Rabah by the Police before the Police could get closer to use Musa and …… other escaped and inside the car we have (sic) the sum of N15,341,320 and three pistols. I saw it with my eye, assuming (sic) we succeeded (sic) when I am given out off (sic) the money I will collect. We were arrested and brought to the SCID that is all I know”.
See pages 25-27 of the Record.

See Section 28 of the Evidence Act 2011 defines confession as:
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.

There is no doubt that the confession in Exhibit N is direct, positive and unequivocal. But also, there were evidence outside the exhibit which showed it is true and as far as the contents therein could be tested, they are true. Further, Exhibit N was corroborated by the evidence of PW2 and PW3 as well as the evidence of the police witnesses, particularly the evidence of PW5 and PW8 who arrested them and the evidence of PW1, PW6, PW7 and PW9 who investigated and took statements of the Appellant and the other accused persons. There is also no doubt that the contents of Exhibit N is consistent with the finding of the money and weapons in the car when the Appellant was arrested.

In urging the Court to discard the findings made by the trial Court, the Appellant contended that his statement contradicted his evidence at the trial and that in the circumstance the trial Court ought to have rejected both Exhibit N and the Appellant’s testimonies in Court as DW1. This cannot be. Why? Because the extra-judicial statement of an accused is part of the case of the prosecution. See EGBOGHONOME V. THE STATE (1993) 7 NWLR (PT. 306) 383 AT P. 432. I quite agree with the argument of the learned counsel to the Respondent that it cannot therefore be classified as being part of the testimony of the accused person.
Further, it is certain that the scenario here is not one in which the Appellant gave two contradictory testimonies or evidence at trial. Rather, it is a case of an accused, who had confessed to the crime in his extra-judicial statement turning around to deny the content of the statement at the trial.

Also, it was the contention of the Appellant that the trial Court relied on the statement of the other co-accused to convict him. However, this contention for which the Appellant cited the case of DANLAMI OZAKI & ANOR V. THE STATE (1990) LPELR-2888 (SC), does not avail the Appellant as he could be validly convicted upon his own confessional statement. While it is true that a Court cannot use the confessional statement of one accused to convict another accused person, there are exceptions. The exception is that where the latter accused person adopts certain contents or the contents of the statement, made by the former accused person, the Court can convict him on such adopted statement or part thereof.
In DANLAMI OZAKI & ANOR V. THE STATE (Supra), it was held that:
“It is settled law by statute and judicial decisions that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement. See Evbuomwan V. Commissioner of Police (1961) WNLR 257”.
Consequently, the exception applies in this instant, in that the Appellant in Exhibit N clearly adopted (or stated facts) that agreed with the contents of Exhibits M, O and P. The confessional statements of the accused person was therefore, duly proven and admitted.

Having thus resolved the issue of confessional statement, we now come to eyewitness evidence.

In CHIJIOKE OHAKPOUGWO V. THE STATE (2021) LPELR-54910 (CA) Per WAMBAI, JCA (pp. 14-14, Paras. C-B) it was held:
“The importance of evidence of credible eye-witness cannot be over emphasized in criminal trial. Such evidence is credible and meets the conditions of acceptability, it is accorded high probative value and ranks very high on the evidential scale. Eye-witness account is one of the most dependable and reliable ways of proving the guilt of an accused person. It has been described as the best evidence in the hierarchy of evidence in our criminal justice system. It towers above other methods of prove and is next only to a voluntary confessional statement. In OJO VS. GHARORO (1999) 1 NWLR (PT. 615) 374, 387 Para D the probative value of eye-witness was stated thus: “It is the best evidence and attracts the most probative value. Such direct evidence towers high above hearsay evidence”. Putting it simply, an eye-witness testimony is usually the finest evidence in a criminal trial with high probative value. See OYACHE VS THE STATE (2006) ALL FWLR (PT. 305) 703 at 720, IDIOK VS STATE (2008) 13 NWRL (PT. 1104) 225 and OKOSUN VS A.G. BENDEL STATE (1981) 1 NWLR (PT. 100 642”.

PW2, PW3, PW5 and PW8 were all eye witnesses to the robbery. The evidence of PW2 at the trial could be found at page 117 of the Record of Appeal. He recounted graphically the robbery that took place at Illela market on that fateful month of June, 2014 at about 6.30pm. At page 118 of the record, Umar Yunusa as PW3 testified how he saw the Appellant and the co-accused persons fleeing the crime scene. At pages 123-124 of the record. Inspector Nasiru Mohammed (PW5) testified as to the circumstances by which he came face to face for the first time with the accused persons together with their get-away car, the stolen money and weapons. Mohammed Yusuf (PW8) testified that he was one of the policemen who arrested the Appellant and the 2nd and 3rd accused persons. His evidence at the trial Court is at pages 134-135 of the record.

The Appellant contended in his Brief of Argument that because PW2 said he could not identify the robbers when the crime took place in his shop, the prosecution ought to have conducted identification parade and failure to do that is fatal. This sound hollow to me. PW2 said unknown persons invaded the shop while shooting into the air and it was late in the evening. He immediately fell flat on his stomach. Under such circumstance, identification parade becomes unnecessary and would serve no useful purpose whatsoever. I hold that the evidence to eye witnesses is credible and reliable.

Now, we arrive at circumstantial evidence. In OGUNDARE PETER V. THE STATE (2015) LPELR-25574 (CA) Per LOKULO-SODIPE, JCA (PP. 30-31, Paras. F-A), it was held that:
“Circumstantial evidence, it should be noted, is nothing more than evidence that irresistibly flows from established facts”.
Circumstantial evidence is usually based on inference and not on personal knowledge or observation. It is generally agreed that such evidence must lead cogently, strongly and unequivocally to the conclusion that the accused person committed the offence for which he was charged. Thus, in KINGSLEY OMOREGIE V. THE STATE (2017) LPELR-42466 (SC), the Supreme Court held as follows:
“Infact, it is stated in the parlance of criminal jurisprudence that circumstantial evidence is often regarded as a reliable and acceptable mode of proof of a criminal case and the Court can accept and act on it, provided it is cogent and admissible. See SHUAIB ABDU V. THE STATE 2016) LPELR- 41461 (SC), USMAN V. STATE (2013 B NWLR Pt. 1342) 607; MAIGARI V STATE 2010) 16 NWLR Pt. 43949; NWAEZE V STATE (1996) 2 NWLR (Pt. 428); HARUNA VS AG FEDERATION (2012) 9 NWLR Pt. 1306-419; ADEKOYA V STATE (2012) 9 NWLR (Pt. 1306) 539”.

From the records, circumstances in this case which are brought to the fore by the evidence of the prosecution and the Appellant himself are:
1. By his own evidence, the Appellant was at Illela Market on the day of the armed robbery;
2. The robbery took place in the Illela Market shop of Alhaji Bello Usman manned at the time by PW2;
3. Guns used during the robbery as the robbers shot sporadically;
4. The sums of N15,341,320.00 consisting of Naira and Cefa were robbed at gun point from the aforesaid shop;
5. A dark green Volkswagen Golf Wagon was used by robbers as the get-away car after the robbery;
6. The PW3 saw the robbers as they drove away in the get-away car at high speed;
7. There was a radio message to the policemen on highway patrol at a road block around Raba-Maikujera junction intimating them of the robbery at the Illela Market and the fact that the robbers were headed their way in a dark-coloured Volkswagen Golf Wagon;
8. Later that night, the policemen who received the said radio message (PW5 and PW8 inclusive) stopped the wagon when it reached the road block;
9. The Appellant and the 2nd and 3rd accused persons were arrested at a check point on a route leading away from the scene/town where the robbery occurred;
10. The Appellant and the 2nd and 3rd accused persons were in the car. In the process of arresting the occupants of the car, two of them escaped into the bush;
11. The Appellant attempted to escape too but failed as PW8 restrained him;
12. Two revolver pistols (Exhibits A and A1); (b) AK Automatic Pistol (Exhibit B); Live Cartridges (Exhibits C, C1, C2 and C3); Live ammunitions (Exhibits D and D1) were found in the wagon;
13. The stolen money was found in the get-away car;
14. The exact notes, denomination, amount and currencies of the money found in the wagon were the same with the sums of money stolen form the Illela market shop; and
15. The Appellant and the other co-accused gave no cogent, satisfactory and/or credible explanation on how they came into possession of such huge sum of money and deadly weapons.

With these pieces of undisputed facts and circumstances, I hold that the Appellant and the persons found with him are the armed robbers who robbed the shop of Alhaji Bello Usman at the Illela Market Shop on 1st of June, 2014.

ISSUE TWO
Whether the prosecution proved the offence of criminal conspiracy beyond reasonable doubt

A plethora of authorities listed the followings as the ingredients of the offence of conspiracy:
i. There must be an agreement between two or more persons to an illegal act or an act which is not illegal by illegal means;
ii. The illegal act was done in furtherance of the agreement; and
iii. That each of the accused persons participated in the illegality or conspiracy.
See OBIAKOR V. THE STATE (2002) 10 NWLR (PT. 776) 612 AT P. 628; UPAHAR V. THE STATE (2003) 6 NWLR (PT. 816) 23 AT P. 262. see also, SHODIYA V. THE STATE (1992) 3 NWLR (PT. 230) 457; OYAKHERE V. THE STATE (2005) 15 NWLR (PT. 947) 159.
The central theme common to all the ingredients of the offence of conspiracy is common intention or that the accused persons had an agreement to commit an act which is in itself an offence.
In OGBU V. THE STATE (2007) 2 NCC 355 AT P. 359 it was pointed out that common intention:
“… May be inferred from circumstances described in the evidence led before the trial Court and it need not be provable only by the express agreement of the accused persons”.
And in the case of MUSTAPHA UMAR V. THE STATE (2016) LPELR-41182 (CA) Per MUSTAPHA, JCA (PP. 16-17, Paras. E-C) it was held:
“It is the responsibility of the prosecution at the trial Court to establish conspiracy between the appellant and the other co-accused persons, as well as culpable homicide and robbery, contrary to Sections 97, 221 and 298 of the Penal Code as charged respectively. With regard to the charge of conspiracy it is necessary to establish a meeting of the minds, a plan to carry out the offensive act and an act on the part of the conspirators which leads the trial Court to a conclusion that the Appellant and others were engaged in accomplishing a common objective, bearing in mid that “… the offence of conspiracy is often hatched in utmost secrecy. So, in determining a case of conspiracy the circumstances of the case must be carefully considered”. OGEDENGBE V. STATE (2014) 12 NWLR PART 1421 AT 344.

Thus, at this juncture, the question that becomes pertinent is this: did the prosecution lead evidence from which common intention or agreement could be inferred between the Appellant and the 2nd, 3rd and 4th accused persons? The findings in the determination of issue one answered the question in the affirmative.

Further, the agreement to commit the offence of armed robbery could be inferred and was rightly inferred by the lower Court in view of the following circumstances and pieces of evidence:
1. The evidence adduced by the prosecution, especially through PW2, PW3, PW5, PW8 and PW8 as well as the evidence presented by the Appellant himself;
2. The contents of Exhibit N, the Appellant’s confessional statement;
3. The contents of Exhibits M, O and P;
4. The unchallenged evidence of armed robbery committed in the shop managed by PW2;
5. The stealing of N15,341,320.00 from the said shop at gun point;
6. The evidence showing that the same Volkswagen Golf Wagon seen fleeing the crime scene with the money in two different currencies and later stopped at police check point at Raba and the same amount of money and guns were found in the vehicle with the Appellant and his confederates;
7. The clandestine and condition or circumstance under which the Appellant and the 2nd, 3rd and 4th accused persons left Kano for Sokoto State, arrived Illela at 0300 hours and stayed in the same car for several hours before the robbery was committed; and
8. The fact that the Appellant and the 2nd, 3rd and 4th accused persons were found on the same route leading from the scene of the crime (in possession of guns and the money stolen from the shop) in the same vehicle which was seen escaping from the crime scene at high speed.

From the above itemized pieces of evidence and/or circumstances, I hold that the Appellant fully participated in the conspiracy and the commission of the armed robbery that followed.

Both issues raised for the determination of this appeal are hereby resolved against the Appellant and in favour of the Respondent.

Having resolved the issues, the appeal is dismissed for lacking in merit.
The judgment of Sokoto State High Court, delivered on the 23rd day of April, 2019 by Honourable Justice Bello Duwale in Charge NO: SS/42C/2015 is hereby affirmed. I make no further order.

SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft, the lead judgment prepared and delivered by my any Lord, ALI A. B. GUMEL, PJCA and I agree in toto with the reasoning and conclusion. I adopt the lead judgment as mine.

MOHAMMED DANJUMA, J.C.A.: I have the privilege of reading in draft, the lead judgment of my learned brother Ali A. B. Gumel JCA. I agree with the reasoning and conclusion that the appeal is lacks merit and is hereby dismissed. I abide by all the consequential orders in the lead judgment.