BELLI & ORS V THE STATE

BELLI & ORS V THE STATE


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON TUESDAY, 17TH JULY, 2018


Suit No: CA/J/65C/2016

CITATION:

Before Their Lordships:

ADZIRA GANA MSHELIA, JCA

ADAMU JAURO, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

BUBA MOHAMMED BELLI
MANI ADAMU DARE
ADAMU DAN GARBA
(APPELLANTS)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Offence of Conspiracy – The constituents of the offence of conspiracy
Nature of the offence of conspiracy

Section 96(1) of the Penal Code defined criminal conspiracy to mean where two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means. Hence the ingredients or requirements for the offence of criminal conspiracy are the agreement between two or more persons to do an illegal act or to do a legal act by illegal means. Basically therefore the offence of conspiracy consists simply in the agreement or confederacy to do some illegal act. Conspiracy is a matter of inference deduced from certain criminal acts of the parties and done in pursuance of an apparent criminal purpose between them. See State V. Salawu (2011)48 NSCQR 290, Haruna V. State (1972) ALL NLR 738, Dr. Ogunewe V. State (2001)5 NSCQR 1 at 11. Per JAURO, JCA. read in context

2. Offence of Armed Robbery – The ingredients of the offence of armed robbery
Ingredients that must exist to prove the offence of armed robbery

…The ingredients for the offence of armed robbery on the other hand, are as follows:
(i) That there was a robbery or series of robberies

(ii) That the robbery or each robbery was an armed robbery or robberies

(iii) That the accused took part in the armed robberies.

See Bozin V. State (1985)2 NWLR (Pt. 8) 465, Ani V. State (2003)11 NWLR (Pt.830)145, Bello V. State (2007)10 NWLR (Pt. 1043)564, Afolalu V. State (2010) 43 NSCQR 227 at 243-244, Nwaturuocha V. State (2011)45 (Pt. 1) NSCQR 278, Ogudo V. State (2011)48 NSCQR 377 at 412. Per JAURO, JCA. read in context

3. Guilt of an Accused Person – The ways prosecution can prove the guilt of an accused
How to establish/prove the guilt of an accused person

In the discharge of its onerous responsibility, the prosecution can prove the guilt of an accused person through any of the following ways, namely:
a. The evidence of an eye witness;

b. A confessional statement; and

c. Circumstantial evidence.

See the following cases: Igabele V. State (2007)2 NCC 125, Abirifon V. State (2013)9 SCM 1 at 3. Per JAURO, JCA. read in context

4. Offence of Armed Robbery – How stolen items mustn’t be shown in proving offence of robbery
Whether the prosecution must produce the items stolen in a charge of armed robbery

It is also not the law that items stolen during the robbery must be tendered in evidence before an accused person can be convicted for the offence. See Olatinwo V. State (2013)8 NWLR (Pt.1355) 126 Pg. 146 paras G-H where the apex Court per AKA’AH’S JSC stated thus:

“All that the learned counsel is saying is that since the stolen items were not found, the Appellant cannot be said to have participated in the commission of the offence of armed robbery. If this was the position of the law, then nobody will be convicted of a criminal offence because all that is needed is for the accused to dispose of the stolen items and he will come off clean of the commission of the offence. Happily this is not the state of the law.”

In the instant case, the argument of the Appellants’ counsel that since the items stolen during the robbery were not found, the Appellants could not be said to have committed the offence of armed robbery would not hold water. Per JAURO, JCA. read in context

B. EVIDENCE
5. Burden of Proof and Standard of Proof Burden of proof and standard of proof in criminal cases

By Section 36(5) of the 1999 Constitution (as amended), every person charged with a criminal offence is presumed innocent, until he is proved guilty. This provision, simply translated is what is known as the principle of presumption of innocence. The burden of establishing the guilt of an accused person is on the prosecution and the standard of proof is beyond reasonable doubt. See Section 135 1) of the Evidence Act 2011, Woolmington V. D.P.P. (1935) AC 462, Bakare V. State (1987), 1 NWLR (Pt. 52) 579, Dibie V. State (2007)9 NWLR (Pt. 1035)30, Emeka V. State (2001)14 NWLR (Pt. 734)666. Where the standard of proof beyond reasonable doubt is not attained, the benefit of doubt will be in favour of the accused person. See Abdullahi V. State (2008)17 NWLR (Pt. 1115) 203, Onafowokan V. State (1987)3 NWLR (Pt. 61), State V. Danjuma (1997) 5 NWLR (Pt. 506)512, Umani V. State (1988)1 NWLR (1988) 1 NWLR (Pt. 70) 274, Onuchukwu V. State (1998) 4 NWLR (Pt. 547) 576. Per JAURO, JCA. read in context

6. Confessional Statement – The implication of confessional statement made voluntarily
Effect of a confessional statement admitted without objection

In proving the charges against the Appellants, the prosecution relied on the confessional statement of the Appellants as well as evidence of PW1. The confessional statement of the Appellants which was admitted by the trial Court was tendered and admitted without objection from the Appellants. Where a confessional statement is admitted without any objection from the defence as in the instant case, the irresistible inference is that same was made voluntarily and a Court can convict on the basis of the admission contained therein. See Ajibade V. State (2013)6 NWLR (Pt. 1349)25 at 47, where the apex Court, per Ogunbiyi JSC stated thus:

“Where a confessional statement is therefore admitted without any objection, the irresistible inference is that same was made voluntarily and a Court can rightly convict on the basis of the admission contained therein.” Per JAURO, JCA. read in context

7. Confessional Statement – When the Court can convict on the confession of an accused person
Conditions to be satisfied before a confession can be used in convicting an accused person

It is settled law that where a confessional statement has admitted all the essential elements of an offence, and shows unequivocal, direct and positive involvement of the accused in the crime alleged, a Court can rely on it alone to convict the accused. See Lase V. State (2018)3 NWLR (Pt. 1607)502 at 527, Abdu V. State (2006)12 SC. (Pt. IV) 103. Hence the accused can be properly convicted solely on his confessional statement, without more as facts admitted need no further proof. See Odu’a V. F.R.N. (2002)5 NWLR (Pt. 761) 615, Amachree V. Nigerian Army (2003)3 NWLR (Pt. 807) 256, Lase V. State (2018)3 NWLR (Pt. 1607) 502, Idowu V. State (2000)7 SC (Pt. 11) 50 at 62, Akpa V. State (2008 163 LRCN 186 at 192, Lasisi V. State (2013) 9 NWLR (Pt. 1358) 74 at 107, Ejinima V. State (1991)6 NWLR (Pt. 200) 627, Akwuobi V. State (2016) LPELR- 413889 (SC), Mohammed V. State (2008)11 NWLR (1045) 300 at 310, Bassey V. State (2012) 12 NWLR (Pt. 1314) 209, Shaibu V. State (2017) LPELR- 42100 (SC), Sunday V. State (2017) LPELR- 42259 (SC). The confessional statements of Appellants exhibit A-C are direct and unequivocal. The Appellants confessed to belonging to a gang of ten (10) armed robbers that terrorize Monguno, Baga and Kukawa area. That they have three (3) rifles mostly kept by their gang leader by name “Niga”. They confessed to their criminal antecedents of stealing domestic animals and extorting money from the villagers. These confessions are direct, positive and unequivocal and the trial Court was right in convicting the Appellants based on the confessions. See Lase V. State (Supra). Per JAURO, JCA. read in context

8. Tendering of Weapon of Crime – How failure to tender offense weapon cannot result in the acquittal of an accused person
Whether failure to tender the weapons used in the commission of a crime will be fatal to the case of the prosecution

In considering the Appellants contention that failure of the prosecution to tender weapon used or the property stolen is fatal to the prosecution’s case. Once the prosecution proves the three ingredients of armed robbery, the failure to tender the offensive weapon cannot result in the acquittal of the accused person. I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of the accused person. Whether or not the prosecution needed to tender the weapons with which the Appellants allegedly committed the robbery depends, by and large on the character and circumstances of the case. See Olayinka V. State (2007)9 NWLR (Pt. 1040 561 at 575 D-E and 582G to 583 H where the apex Court restated the position in the following words:

“In order to convict for armed robbery the prosecution must prove that:

(a) There was an armed robbery.

(b) The accused was armed.

(c) The accused with the arms, or participated in the robbery which makes it armed robbery

Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. Nothing stops an accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police. If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal.”

In the instant case, since there was no assertion from the prosecution witness (PW1) that any weapon was recovered from the Appellants, tendering any weapon of the alleged robbery was not necessary. Per JAURO, JCA. read in context

9. Hearsay Evidence – The inadmissibility of hearsay evidence
Whether hearsay evidence is admissible

The learned counsel for the Appellants contended that the evidence of PW1 is hearsay and therefore inadmissible. A hearsay evidence is an evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also in part on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Osho V. State (2012)8 NWLR (Pt. 1302) Pg. 243 @ 290 Paras G-F. It is fundamental rule of evidence at common law that hearsay evidence in not admissible. In criminal trials in particular, to prove that an accused person had committed an offence, evidence of a witness that he heard or read that someone else had said that the accused person had committed the offence would clearly be hearsay and so inadmissible in evidence in proof of the offence against the accused person. See osho v. state (Supra) at Page 288-289, Paras H-A. Per JAURO, JCA. read in context

10. Inconsistency Rule – The effect of the principle of inconsistency rule
The legal effect where the previous evidence of witness is inconsistent with his present testimony

Lastly, on the contention that the statement and the oral evidence of the Appellants in Court are in material conflict and should both be disregarded by the Court. This argument relates to the inconsistency rule. It is to the effect that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, both the oral evidence and the extra-judicial statement should be disregarded. The rule developed in the interest of justice to resolve conflicts between previous statement and evidence given in Court for the prosecution or defence. The object is to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency. See Ogudo V. State (2011) 18 NWLR (Pt. 1278) Pg. 1 @ P. 25-26 paras G-H, Onubogu V. State (1974)9 SC 1.

In the instant case, the Appellants made a confessional statement (extra-judicial statement) before the police and while giving their testimony in their defence before the lower Court retracted these statements, in the sense that they gave testimony inconsistent with their extra-judicial statement. The Appellants being accused persons testifying for themselves raise a question as to whether inconsistency rule applies to extra-judicial statement of accused which is at variance with their testimony at trial? The law is settled that the inconsistency rule is restricted only to the evidence of a witness who made an extra-judicial statement which is in conflict with the evidence given at trial. The inconsistency rule does not apply to an accused person. It does not cover a case where an accused persons extra-judicial statement is contrary to his testimony in Court. See Egboghonome V. State (1993)7 NWLR (Pt. 306) 383, Ogudo V. State (2011) 1 SCNJ 1, R V. Golder (1960)1 WLR, Odu V. Queen (1964) ALL NLR 21 at 24, Smart V. State (2016) LPELR – 40728 (SC), James Simon V. State (2017) LPELR – 41988 (SC) at 17-19. In the instant case, based on the authorities cited above, the Appellants being accused persons cannot benefit from this rule, the Appellants’ counsel submission on this point is misconceived and same is hereby discountenanced. Per JAURO, JCA. read in context


LEAD JUDGMENT DELIVERED BY JAURO, JCA


The instant appeal is against the judgment of the Borno State High Court of Justice, Maiduguri Judicial Division delivered on 16th June, 2015 by Hon. Justice A.B. Kumalia in charge No.BOHC/MG/CR/63/CT.12/2013.

The facts resulting in this appeal can be briefly summarized as follows: The Appellants were alleged to have conspired amongst themselves to commit armed robbery and in furtherance of the said agreement did attack the residents of Mallam Karamti village and some cattle rearers in the bush, while armed with guns. Based on the foregoing facts, the three Appellants herein and one Shagari Isah were arraigned on a two counts charge of criminal conspiracy and armed robbery, punishable under Section 97(1) and 298(b) of the Penal Code.

The two counts charge is hereby reproduced thus:

“CHARGE

COUNT ONE

That you Buba Mohammed Belli, Mani Adamu Dare, Adamu Dan Garba and Shagari Isah ‘M’ all of Baga Town on or about the 22/6/2013 at Baga motor park, Kukawa local Government Area, which is within the jurisdiction of this Honourable Court did conspired amongst yourselves to commit armed robbery and in furtherance of your agreement did attacked residence of Mallam Karamti village and some cattle rearers in the bush, armed with guns and thereby committed an offence contrary to Section 97(1) and punishable under 298(c) of the Penal Code laws of Borno State 1994.

COUNT TWO

That you Buba Mohammed Belli, Mani Adamu Dare, Adamu Dan Garba and Shagari Isah ‘M’ all of Baga Town on or about the 22/6/2013 at about 13000hrs. at Baga motor park, Kukawa local Government Area, which is within the jurisdiction of this Honourable Court did conspired amongst yourselves to commit armed robbery, to wit you attacked residence of Mallam Karamti village and some cattle rearers in the bush, which is an offence contrary to Section 298(b) of the Penal Code laws of Borno State 1994.”

On 15th January, 2014 the four accused persons pleaded not guilty to both counts of the charge earlier filed. On 26th June, 2014 the earlier charge was amended pursuant to Section 208 of the Criminal Procedure Code. The four accused persons pleaded not guilty to the new charge which was reproduced in the preceding paragraph. After series of adjournments, Inspector Samuel Dangwaram testified as PW1 on 18th October, 2014. The prosecution tendered the confessional statements of the Appellants through PW1 which were admitted without objection as exhibits A, B and C. Page 13 lines 20 to 24 of the record is hereby reproduced thus:

“PROSECUTION: Having identified the statement, we are applying to tender same in evidence.

DEFENCE COUNSEL: No objection

COURT: Statements of 1st – 3rd accused persons are hereby admitted in evidence to be marked as exhibits A, B & C respectively.”

Subsequently, on the same date, the statement of Shagari Isah was admitted in evidence through the same witness as exhibit D. Lines 22 to 27 of page 14 of the record is hereby reproduced for ease reference:

“PW1: Shagari also gave me his statement. I can identify it by my handwriting and signature. This is the statement.

PROSECUTION: I am applying to tender the statement in evidence.

DEFENCE COUNSEL: No objection

COURT: The statement of 4th accused person is hereby admitted in evidence to be marked as exhibit ‘D’ in this case.”

The prosecution could not assemble its remaining witnesses due to insecurity, despite the indulgence by way of adjournments granted by the Court. See page 12 line 15 of the record. Based on this unfortunate development, the Court on 8th December, 2014 closed the case for the prosecution. On 11th March, 2015 the defence made a no case submission and in a ruling delivered on the 23rd March, 2015 the no case submission was upheld in respect of the 4th accused Shagari Isah who was accordingly discharged. The 1st to 3rd accused persons now Appellants were asked to enter their defence. The Appellants testified in their own defence as DW1, DWII, and DWIII. Upon the conclusion of hearing, both parties addressed the Court. In a judgment delivered on 16th June, 2015 the three accused persons now Appellants were convicted as charged and sentenced to 14 years imprisonment on each count and both sentences to run concurrently.

Apparently distressed by the aforementioned decision, the Appellants queried same vide their three separate notices of appeal filed on 15th September, 2015. The three notices of appeal were subsequently amended vide leave of Court granted on 27th February, 2018. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The Appellants amended brief of argument settled by A.A. Sangei Esq. is dated 20th December, 2017 and filed on 22nd December, 2017 while the Appellants reply brief is dated 19th September, 2017 and filed on 20th September, 2017. The Respondent’s brief settled by Ardo Buba Esq. is dated 11th September, 2017 and filed on 18th September, 2017. On the date fixed for hearing the appeal, A.A. Sangei Esq. adopted the Appellants brief and the reply brief in urging the Court to allow the appeal. On his part, A.S. Kaigama Esq. adopted the Respondent’s brief in urging the Court to dismiss the appeal.

The Appellants submitted a lone issue for determination on page 4 of their brief as follows:

“Whether or not the lower Court was right in convicting and sentencing the Appellants for the offences of conspiracy and Armed Robbery in view of the materially conflicting and irreconcilable evidence adduced by the prosecution.”

The Respondent on its part distilled three issues for determination on page 5 of its brief of argument and they are hereby reproduced thus:

“(1) Whether or not the lower Court was right in convicting and sentencing the Appellants to 14 years imprisonment for the offence of Armed Robbery in view of the nature and quality of evidence adduced by the prosecution. (distilled from ground 2 of the grounds of Appeal.)

(2) Whether the trial judge was right in convicting and sentencing the Appellants for the offence of criminal conspiracy contrary to Section 97 of the Penal Code Laws of Borno State 1994, regards being had to evidence before the Court that the accused persons have never seen each other until when they were arrested and detained by the police (distilled from ground 3 of the grounds of Appeal).

(3) Whether the trial judge was right to place heavy weather on the confessional statements of the Appellants when the prosecution failed to call a vital witness (the residence of Mallam Karanti) In prove of its case (distilled from ground 3 of the grounds of Appeal).”

The appeal will however be determined on the sole issue distilled by the Appellants which has been earlier reproduced in this judgment.

SOLE ISSUE

The Appellants listed the three requirements for the offence of armed robbery and in support, reference was made to the case of Ogudo V. State (2011)18 NWLR (Pt. 1278)1 at 72. The Appellants stated that each of the three requirements must be established by credible evidence and in the instant case the evidence adduced by the prosecution is weak and deficient, hence the offences cannot be said to have been proved beyond reasonable doubt and the Appellants are entitled to an acquittal. In support, reference was made to the case of Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561 at 577. It was submitted that none of the residents of Mallam Karamti village testified that there was armed robbery in the village and nobody testified that he was robbed by the Appellants and no weapon or stolen property recovered was tendered as an exhibit. It was contended that the only witness called testified to the effect that the Appellants allegedly confessed to him that they committed the offence.

It was argued that the evidence of the witness is hearsay and inadmissible by virtue of Section 38 of the Evidence Act 2011. In support, reference was made to the case of Akpa V. State (2014) 13 NWLR (Pt. 1424)224 at 249.

It was posited that the prosecution has a duty to tender the offensive weapons allegedly used in the robbery, and failure to tender the weapons has created doubt which ought to be resolved in favour of the Appellants. In support, reference was made to the following cases: Alabi V. State (1993) 7 NWLR (Pt. 307) 511, Martins V. State (1997)1 NWLR (Pt. 481) 55. It was submitted that the confessional statements of the Appellants exhibits A, B and C are in material conflict with their oral evidence in Court. It was argued that where an extrajudicial statement of an accused and his oral evidence in Court explaining how the incident happened are in material conflict, both should be disregarded. It was posited that if the lower Court had complied with the aforestated principle it would have disregarded the statements and evidence of the Appellants and there will be nothing to rely on to convict the Appellants. In support, reference was made to the case of Akpa V. State (2014) 13 NWLR (Pt. 1424)225 at 249 G-H. The Appellants stated that the prosecution had woefully failed to prove the offences of conspiracy and armed robbery. In support, reference was made to the case of Oladipupo V. State (2013) 1 NWLR (Pt. 1334) 68 at 96.

The Appellants listed the requirements of criminal conspiracy as stipulated in Section 97 and submitted that the findings of the trial Court on page 38 as to culpability of the Appellants is erroneous. It was posited that the Appellants were neither friends nor met each other before but were only in the same market on the fateful day of the incident, hence the offence of conspiracy cannot be said to have been established. In support, reference was made to the case of Enahoro V. State (1965) ALL NLR 125. It was contended that the evidence of PW1 was hearsay, and eyewitnesses that were listed as prosecution witnesses were not called to testify. It was submitted that there was no offensive weapon tendered as the weapon used for the robbery. The Appellants stated that there was no evidence of a criminal design to commit the offence by the

Appellants to bring them within the definition of criminal conspiracy. In support, reference was made to the following cases: Osuagwu V. State (2013)5 NWLR (Pt. 134) 360 at 391 – 392, dele v. state (2015) 12 NWLR (Pt. 1472) 63 at 75.

It was argued that vital witnesses were not called to testify and their failure to testify is fatal to the prosecution’s case. In support, reference was made to the following cases: State V. Nnolim (1994)5 NWLR (Pt. 345) 394, Ogudo V. State (Supra) at 31 to 32, Amachree V. Nigerian Army (2003)3 NWLR (Pt. 807) 256, Omotayo V. State (2013)2 NWLR (Pt. 1338) 235 at 255. It was submitted that the conviction of the Appellants was based on mere suspicion and speculation and it is trite that suspicion however strong will not amount to proof. In support, reference was made to the following cases: Onyenankeya V. State (1964) 1 NLR 34, Daniel Nsofor V. State (2004)20 NSCQR 74, (2004)18 NWLR (Pt. 905) 292. In conclusion, it was urged that the lone issue be resolved in favour of the Appellants.

The Respondent listed the three requirements of armed robbery and in support of the requirements referred to the case of onyenye v. state (2012)6 SCNJ (Pt. 1) 105. It was submitted that in proving the ingredients of armed robbery, the Respondent relied on the evidence of PW1 and the confessional statements of the Appellants exhibits A, B and C. It was argued that the three Appellants confessed to the commission of the offence in exhibits A to C and that where an accused has confessed to the commission of an offence there is no further need of proving the ingredients of the offence. It was posited that the admission contained in the confessional statements suffices, and is evidence of participation in the crime by the accused persons. It was argued that to confirm the voluntariness of the confessions, the Appellants did not object to their admissibility when they were sought to be tendered. In support, reference was made to the case of Ajibade V. State (2013)6 NWLR (Pt. 1349) 25 at 47. The Respondent opined that the confessional statements in exhibits A, B and C were voluntarily made.

It was argued that where an accused has confessed to the crime, calling the villagers to testify is made unnecessary and tendering the weapon of crime is not a condition precedent to prove the armed robbery. In support, reference was made to the following cases: Olayinka V. State (2008)6 ACLR 194, Olatinwo V. State (2013)8 NWLR (Pt.1355) 146. It was submitted that by the aforementioned two authorities, the non-recovery of the item stolen, the weapon used and inability to secure the attendance of victims to testify is not fatal to the prosecution’s case.

The Respondent gave a definition of criminal conspiracy as contained in Section 97 of the Penal Code, Laws of Borno State 1994 and contended that the findings of the trial Court on pages 38 and 39 of the record were based on the confessional statements. It was posited that the offence of conspiracy is usually by inference through one of the conspirators. In support, reference was made to the case of Abacha V. State (2003)3 ACLR 333 at 338. It was submitted that exhibits A, B and C reveals the evidence that the three Appellants acted in concert towards the achievement of their common goal, which was robbing the people of Ali Karamti village and extorting money from them hence the Court can draw reasonable inference that there was the offence of conspiracy to commit armed robbery. In conclusion, it was urged that the appeal be dismissed and the conviction and sentence be affirmed.

In a short reply the Appellants stated that their conviction under Section 97 and 298 of the Penal Code was erroneous. It was argued that a person cannot be convicted for conspiracy based on his confessional statement unless there is an independent evidence that atleast somebody conspired with him. In support, reference was made to the following cases: Ifaramoye V. State (2017) 6 NWLR (Pt. 1568)457, State V. Odunayo (2016 14 NWLR (Pt.1532) 1932 at 229. It was urged that the confessional statements exhibits A, B and C, be expunged as the prosecution failed to prove its case beyond reasonable doubt pursuant to Section 135(1) of the Evidence Act, 2011. In support, reference was made to the case of State V. Odunayo Ajayi (2016)14 NWLR (Pt. 1532) 196 at 221 at 223. In conclusion it was urged that the appeal be allowed and the Appellants be discharged and acquitted.

By Section 36(5) of the 1999 Constitution (as amended), every person charged with a criminal offence is presumed innocent, until he is proved guilty. This provision, simply translated is what is known as the principle of presumption of innocence.

The burden of establishing the guilt of an accused person is on the prosecution and the standard of proof is beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011, Woolmington V. D.P.P. (1935) AC 462, Bakare V. State (1987), 1 NWLR (Pt. 52) 579, Dibie V. State (2007)9 NWLR (Pt. 1035) 30, Emeka V. State (2001)14 NWLR (Pt. 734)666. Where the standard of proof beyond reasonable doubt is not attained, the benefit of doubt will be in favour of the accused person. See Abdullahi V. State (2008) 17 NWLR (Pt. 1115) 203, ONAFOWOKAN V. STATE (1987)3 NWLR (Pt. 61) , State V. Danjuma (1997) 5 NWLR (Pt. 506) 512, Umani V. State (1988)1 NWLR (1988) 1 NWLR (Pt. 70) 274, Onuchukwu V. State (1998)4 NWLR (Pt. 547)576.

The offences for which the Appellants were charged, are criminal conspiracy and armed robbery punishable under Section 97 and 298 of the Penal Code. Section 96(1) of the Penal Code defined criminal conspiracy to mean where two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means. Hence the ingredients or requirements for the offence of criminal conspiracy are the agreement between two or more persons to do an illegal act or to do a legal act by illegal means. Basically therefore the offence of conspiracy consists simply in the agreement or confederacy to do some illegal act. Conspiracy is a matter of inference deduced from certain criminal acts of the parties and done in pursuance of an apparent criminal purpose between them. See State V. Salawu (2011) 48 NSCQR 290, Haruna V. State (1972) ALL NLR 738, Dr. Ogunewe V. State (2001)5 NSCQR 1 at 11.

The ingredients for the offence of armed robbery on the other hand, are as follows:

(i) That there was a robbery or series of robberies

(ii) That the robbery or each robbery was an armed robbery or robberies

(iii) That the accused took part in the armed robberies.

See Bozin V. State (1985)2 NWLR (Pt. 8) 465, Ani V. State (2003)11 NWLR (Pt.830) 145, Bello V. State (2007)10 NWLR (Pt. 1043)564, Afolalu V. State (2010)43 NSCQR 227 at 243 – 244, Nwaturuocha V. State (2011)45 (Pt. 1) NSCQR 278, Ogudo V. State (2011)48 NSCQR 377 at 412.

In the discharge of its onerous responsibility, the prosecution can prove the guilt of an accused person through any of the following ways, namely:

a. The evidence of an eye witness; b. A confessional statement; and c. Circumstantial evidence.

See the following cases: Igabele V. State (2007)2 NCC 125, Abirifon V. State (2013)9 SCM 1 at 3.

The contention of the Appellants in the instant appeal is that the prosecution has failed to prove the two counts charge against them beyond reasonable doubt. The major complaints of the Appellants against the decision of the trial Court can be compressed and summarized as follows:

“i. That the prosecution failed to present any of the residents of Mallam Karanti village to testify against the Appellants.

ii. That failure to tender weapon used or the property stolen is fatal to the prosecution’s case.

iii. That the evidence adduced by the prosecution against the Appellants is hearsay.

iv. That the confessional statements of the Appellant and their oral testimony before the lower Court are in conflict, thus, both should be discountenanced.

In proving the charges against the Appellants, the prosecution relied on the confessional statement of the Appellants as well as evidence of PW1. The confessional statement of the Appellants which was admitted by the trial Court was tendered and admitted without objection from the Appellants. Where a confessional statement is admitted without any objection from the defence as in the instant case, the irresistable inference is that same was made voluntarily and a Court can convict on the basis of the admission contained therein. See Ajibade V. State (2013)6 NWLR (Pt. 1349)25 at 47, where the apex Court, per Ogunbiyi JSC stated thus:

“Where a confessional statement is therefore admitted without any objection, the irresistible inference is that same was made voluntarily and a Court can rightly convict on the basis of the admission contained therein.”

It is settled law that where a confessional statement has admitted all the essential elements of an offence, and shows unequivocal, direct and positive involvement of the accused in the crime alleged, a Court can rely on it alone to convict the accused. See Lase V. State (2018)3 NWLR (Pt. 1607)502 at 527, Abdu V. State (2006)12 SC. (Pt. IV) 103. Hence the accused can be properly convicted solely on his confessional statement, without more as facts admitted need no further proof. See Odua V. F.R.N. (2002)5 NWLR (Pt. 761) 615, Amachree V. Nigerian Army (2003)3 NWLR (Pt. 807) 256, Lase V. State (2018)3 NWLR (Pt. 1607) 502, Idowu V. State (2000)7 SC (Pt. 11) 50 at 62, Akpa V. State (2008)163 LRCN 186 at 192, Lasisi V. State (2013)9 NWLR (Pt. 1358) 74 at 107, Ejinima V. State (1991)6 NWLR (Pt. 200) 627, Akwuobi V. State (2016) LPELR-41389 (SC), Mohammed V. State (2007)11 NWLR (1045) 300 at 310, Bassey V. State (2012) 12 NWLR (Pt. 1314) 209, Shaibu V. State (2017) LPELR- 42100 (SC), Sunday V. State (2017) LPELR-42259 (SC). The confessional statements of Appellants exhibit A-C are direct and unequivocal. The Appellants confessed to belonging to a gang of ten (10) armed robbers that terrorize Monguno, Baga and Kukawa area. That they have three (3) rifles mostly kept by their gang leader by name “Niga”. They confessed to their criminal antecedents of stealing domestic animals and extorting money from the villagers. These confessions are direct, positive and unequivocal and the trial Court was right in convicting the Appellants based on the confessions. See Lase V. State (Supra).

In considering the Appellants contention that failure of the prosecution to tender weapon used or the property stolen is fatal to the prosecution’s case. Once the prosecution proves the three ingredients of armed robbery, the failure to tender the offensive weapon cannot result in the acquittal of the accused person. I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of the accused person. Whether or not the prosecution needed to tender the weapons with which the Appellants allegedly committed the robbery depends, by and large on the character and circumstances of the case. See Olayinka V. State (2007)9 NWLR (Pt. 1040) 561 at 575 D-E and 582G to 583 H where the apex Court restated the position in the following words:

“In order to convict for armed robbery the prosecution must prove that:

(a) There was an armed robbery.

(b) The accused was armed.

(c) The accused with the arms, or participated in the robbery which makes it armed robbery

Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. Nothing stops an accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police. If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal.”

In the instant case, since there was no assertion from the prosecution witness (PW1) that any weapon was recovered from the Appellants, tendering any weapon of the alleged robbery was not necessary.

It is also not the law that items stolen during the robbery must be tendered in evidence before an accused person can be convicted for the offence. See Olatinwo V. State (2013)8 NWLR (Pt.1355) 126 Pg. 146 paras G-H where the apex Court per AKA’AH’S JSC stated thus:

“All that the learned counsel is saying is that since the stolen items were not found, the Appellant cannot be said to have participated in the commission of the offence of armed robbery. If this was the position of the law, then nobody will be convicted of a criminal offence because all that is needed is for the accused to dispose of the stolen items and he will come off clean of the commission of the offence. Happily this is not the state of the law.”

In the instant case, the argument of the Appellants’ counsel that since the items stolen during the robbery were not found, the Appellants could not be said to have committed the offence of armed robbery would not hold water.

The learned counsel for the Appellants contended that the evidence of PW1 is hearsay and therefore inadmissible. A hearsay evidence is an evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also in part on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Osho V. State (2012)8 NWLR (Pt. 1302) Pg. 243 @ 290 Paras G-F. It is fundamental rule of evidence at common law that hearsay evidence in not admissible. In criminal trials in particular, to prove that an accused person had committed an offence, evidence of a witness that he heard or read that someone else had said that the accused person had committed the offence would clearly be hearsay and so inadmissible in evidence in proof of the offence against the accused person. See Osho V. State (Supra) at Page 288-289, Paras H-A.

In the instant case from the trial’s Court record, the Appellants were convicted based on their confessional statement. As earlier held in this judgment, a confessional statement which was unequivocally made voluntarily by an accused person and which is direct, positive and cogent is alone without more, sufficient to ground a conviction for the offence which was admitted therein. In other words, confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession. See Achabua V. State (1976)12 SC 63, Nwigboke V. Queen (1959) SCNLR 248, Akpan V. State (1986) 3 NWLR (Pt. 27) 258, Egboghonome V. State (1993)7 NWLR (Pt. 306) 383. In the instant case, the Appellants in exhibits A, B & C confessed to the commission of the crime. Their confession as stated earlier were detailed and graphic.

Lastly, on the contention that the statement and the oral evidence of the Appellants in Court are in material conflict and should both be disregarded by the Court. This argument relates to the inconsistency rule. It is to the effect that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, both the oral evidence and the extra-judicial statement should be disregarded. The rule developed in the interest of justice to resolve conflicts between previous statement and evidence given in Court for the prosecution or defence. The object is to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency. See Ogudo V. State (2011) 18 NWLR (Pt. 1278) Pg. 1 @ P. 25-26 paras G-H, Onubogu V. State (1974)9 SC 1.

In the instant case, the Appellants made a confessional statement (extra-judicial statement) before the police and while giving their testimony in their defence before the lower Court retracted these statements, in the sense that they gave testimony inconsistent with their extra-judicial statement. The Appellants being accused persons testifying for themselves raise a question as to whether inconsistency rule applies to extra-judicial statement of accused which is at variance with their testimony at trial? The law is settled that the inconsistency rule is restricted only to the evidence of a witness who made an extra-judicial statement which is in conflict with the evidence given at trial. The inconsistency rule does not apply to an accused person. It does not cover a case where an accused persons extra-judicial statement is contrary to his testimony in Court. See Egboghonome V. State (199 )7 NWLR (Pt. 306) 383, Ogudo V. State (2011) 1 SCNJ 1, R V. Golder (1960)1 WLR, Odu V. Queen (1964) ALL NLR 21 at 24, Smart V. State (2016) LPELR – 40728 (SC), James Simon V. State (2017) LPELR – 41988 (SC) at 17-19. In the instant case, based on the authorities cited above, the Appellants being accused persons cannot benefit from this rule, the Appellants’ counsel submission on this point is misconceived and same is hereby discountenanced.

Consequent upon the foregoing, and in the light of all that has been said the lone issue for determination is resolved against the Appellants and in favour of the Respondent. Hence the appeal is lacking in merit and same is hereby dismissed. The conviction and sentence made by the trial Court against the Appellants in its judgment dated 16th June, 2015 in charge No. BOHC/MG/CR/63/C.T.12/2013 is hereby affirmed.

MSHELIA, JCA

I read before now the lead Judgment of my learned brother Jauro, J.C.A just delivered. I completely agree with the reasoning and conclusion arrived thereat, that the appeal is devoid of merit. Same is dismissed. The conviction and sentence made by the trial Court against the Appellants in its Judgment dated 16th June, 2015 in charge No. BOHC/MGICR/63/C.T.12/2013 is hereby affirmed.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Adamu Jauro, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

Appearances:

A.A. SANGEI ESQ. WITH HIM, M.S. USMAN, ESQ., H.M. ABDU, ESQ. and S.M. ABDULLAHI MISS For Appellant(s)

A.S. KAIGAMA, ESQ. PRINCIPAL STATE COUNSEL BORNO STATE MINISTRY OF JUSTICE For Respondent(s)