Ocholi Friday v. The State

The Appellant in this appeal was charged as the 3rd accused person before the High Court of Justice, Lokoja, Kogi State presided over by Nasiru Ajanah, (C.J as he then was) (of blessed memory) on a Further Amended Eight (8) head of Counts charges for the offences of conspiracy and armed robbery alongside two other persons, the 1st and 2nd accused, contrary to Sections 97(1) and 298(c) of the Penal Code. When the amended charge was read to the Appellant, he pleaded “not guilty” to all the counts. Trial commenced thereafter. On the 2nd day of December, 2009, the trial Court delivered its judgment and found the Appellant and the co-accused guilty of Counts 2 and 6 in connection with the offences of conspiracy to commit armed robbery and armed robbery; while he was consequently discharged and acquitted on Counts 3, 4, 7, and 8, whereas only the 1st accused was convicted in respect of Counts 1 and 5. For ease of reference, Counts 2 and 6 for which the Appellant was convicted, read as follows:
2. “That you, Solomon Michaeal, Enejoh Benjamin and Ocholi Friday, on or about the 24th day of July, 2007 at

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No. 35E, Portakabin Bt. B, Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing an act to wit: you agreed to rob Mr. Alabi Akeem’s sister of vehicle documents, Nokia handset, digital Sony Camera, Sony Video CD with remote control, a cutlery set, cloths and his room key, which is an illegal act and thereby committed an offence punishable under Section 97(1) of the Penal Code.
6. That you, Solomon Michaeal, Enejoh Benjamin and Ocholi Friday, on or about the 24th day of July, 2007 at No. 35E, Portakabin Bt. B, Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you robbed Mr. Alabi Akeem’s sister of vehicle documents, Nokia handset, Digital Sony Camera, Sony Video CD with remote control, a cutlery set, cloths and his room key, thereby committed an offence punishable under Section 298(c) of the Penal Code.”

The Appellant became nettled by the decision of the trial Court and therefore filed an amended notice of appeal dated the 25th day of February, 2010 containing a sole omnibus

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ground of appeal, to wit: the decision of the trial Court was unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial. In the judgment delivered on the 31st day of January, 2014, the Court of Appeal dismissed the appeal and affirmed the conviction and sentence of the Appellant by the trial Court. Still peeved by the decision of the Court of Appeal, (the “lower Court”) the Appellant further appealed to this Court via notice of appeal dated the 26th day of February, 2014 but filed on the 28th day of February, 2014, containing two (2) grounds of appeal.

Learned Counsel for the Appellant, Ibrahim Gamdeh Adamu, Esq. leading other Counsels, filed the Amended Appellant’s brief of argument on the 18th day of December, 2023. The Appellant’s brief was deemed as properly filed and served on the 14th day of December, 2023. Learned Counsel nominated two issues for determination, the issues are set out as follows:
1. “Whether the lower Court was right in its holding that due to the Appellant’s appeal being founded on the omnibus ground, the Court lacked the power to review and re-evaluate the evidence led before

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the trial Court?
2. Whether the lower Court’s failure to re-evaluate the evidence led before the trial Court vis-a-vis the Appellant’s mens rea in the commission of the offence did not occasion a miscarriage of justice?”

On the part of the Respondent, learned Counsel Liman Salihu, Esq., leading other counsel filed the amended Respondent’s brief of argument on the 13th day of December, 2023 on behalf of the Respondent, but the brief was deemed as properly filed and served on the 14th day of December, 2023. The learned Counsel for the Respondent adopted the second issue for determination nominated by the Appellant. Meanwhile, Counsel for the Appellant argued the two (2) issues for determination together. I will now take the submissions on the two issues together.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
Counsel for the Appellant said that appeals from the High Court to the Court of Appeal are by way of rehearing and an appeal provides an opportunity for the appellate Court to look at the circumstances, facts and evidence before the trial Court which culminated into the judgment. According to the learned Counsel for the Appellant, the

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lower Court was wrong when it held that since the appeal before it was predicated on the omnibus ground alone, it was precluded from reviewing or re-evaluating the evidence. The cases of SHA (JNR) V. KWAN (2000) 8 NWLR (Pt. 670) 685 at 7011 PARAS B – E; ANACHUNA ANYAOKE V. DANIEL ADELUGBA (1986) 3 NWLR (Pt. 31) 731; ALI V. STATE (1998) 1 NWLR (Pt. 68) 21 – 221 PARAS D – E; OMEGA BANK (NIG.) PLC V. O.B. LTD (2005) ALL FWLR (Pt. 249) 1964 AT 19901 PARA F, and other cases were relied upon to argue that the omnibus ground of appeal is an attack on the findings of fact, which can be engaged to challenge the judgment of the lower Court as not being supported by evidence adduced by the successful party and can be resorted to when the testimony of a witness was wrongly ascribed credibility (as in the evidence of PW7 in this case) or where there is no evidence to ground a conviction, or the said evidence is incapable of belief or sustaining the allegation.

In the instant case, Learned Counsel argued that the evidence of PW7 shows clearly that he was not an eyewitness to the commission of the armed robbery but had merely testified to facts narrated to him by his

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sister; therefore, his evidence is inadmissible hearsay. Counsel further contended that the evidence of PW1 is full of material contradictions as to when he reported the crime to the Police; and the items/documents stolen from his residence by the accused, relying on the case of AKERE V. GOV., OYO STATE (2012) 12 NWLR (Pt. 1314) 240 at 2751 PARA G.

Citing the case of MOSES JOSHUA V. THE STATE (2010) 2 MJSC 152 AT 177 – 178, learned Counsel said the Appellant’s confessional statement is wrought with material defects, and ought not to have been acted upon by the lower Court and the trial Court. He submitted, it is sufficient that the Appellant impugns the statement as not emanating from him for the plea of non est factum to succeed, citing NWAGBOM V. THE STATE (1994) 2 NWLR (Pt. 327) 380 at 399 – 400.

It is the further contention of counsel, relying on SHEHU V. STATE (2010) ALL FWLR (Pt. 523) 1841 AT 1866, PARA G, that even though the Appellant’s testimony was not contradicted, both Courts below erred when they found nothing wrong with the mode by which the Appellant’s extrajudicial statement was taken and which raises doubt as to its

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voluntariness. Learned Counsel urged the Court to take judicial notice of the fact that the police interrogated the Appellant alone in the absence of a counsel as well as his uncontradicted evidence before the trial Court, suffices to taint the Appellant’s extrajudicial statement/ citing Sections 122(1) and 124 of the Evidence Act; SARAKI V. KOTOYE (1990) 4 NWLR (Pt. 143) 144 AT 195, PARAS B – C. Learned Counsel for the Appellant urged this Court to resolve the issues in favour of the Appellants and allow the appeal.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
On his part, the learned Counsel for the Respondent conceded that merely predicating an appeal upon an omnibus ground does not preclude the appellate Court from reviewing the evidence of the trial Court, but argued that it is not every error in a judgment that will necessarily result in the success of an appeal against same in view of the blue pencil rule, citing ONIFADE V. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130; ADEYEMI V. AGs, OYO STATE (1984) 1 SCNLR 525. It is the contention of the learned Counsel for the Respondent that even if the part of the judgment of the lower Court that an omnibus

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ground precludes a Court from re-evaluating evidence is severed, the judgment of the lower Court will still stand.

After submitting that re-evaluation of evidence by an appellate Court is not done for the fun of it and relying on AFOLAYAN V. ARIYO & ANOR (2014) LPELR-22775 (CA), 241 PARAS A – F, learned Counsel contended that the Appellant has not demonstrated that the failure of the lower Court to re-evaluate evidence has occasioned a miscarriage of justice to him. Counsel submitted that since the Appellant’s complaint relates to review of documentary evidence including Exhibit 81 the Appellant’s extra-judicial statement, which is a product of ruling delivered in connection with trial-within-trial proceedings, the Appellant can only attack same by filing an interlocutory appeal, or incorporating the interlocutory appeal into the substantive appeal since the ruling on the trial-within-trial is an appealable decision within the context of Section 25(1)(b) of the Court of Appeal Act, relying on STATE V. DUKE (2003) 5 NWLR (Pt. 813) 394. According to the learned counsel, the Appellant did not (file a distinct ground of) appeal against the said ruling

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or challenge the specific finding of the trial Court in connection with the trial-within-trial, relying on NKWOCHA V. MTN (2008) NWLR (Pt. 1099) 129 at 464-465, PARAS H – B; CHUKWUEGBO V. AGU & ORS. (2015) LPELR – 25578 (CA) 301 PARAS D- F.

In response to the Appellant’s argument that PW7’s evidence is hearsay, learned Counsel contends that the trial Court convicted the Appellant not only based on the evidence of PW7, which was unchallenged during cross-examination, but also based on the testimony of the Investigating Police Officers. Counsel relied on the cases of OLA V. STATE (2018) LPELR – 44983 (SC) 22 – 231 PARAS C – D; GAJI & ORS V. PAYE (2003) LPELR-1300 (SC) 20 on the failure to cross-examine a material witness, which is deemed to be an acceptance of the truth of the evidence of the witness. The case of MUSA V. NIGERIAN ARMY (2016) LPELR-41595 was also relied upon to argue that PW7, being a direct victim of the acts of armed robbery for which the Appellant was charged, qualifies as a witness.

Learned Counsel for the Respondent further submitted on behalf of the Respondent that a conviction can be founded on a confessional statement

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which was proven to be voluntarily made and proved at trial. The case of HARUNA V. AG., FEDERATION (2012) LPELR – 7821 (SC) 171 PARAS A – C; was relied upon in response to the Appellant’s contention that the Appellant denied making Exhibit 2, the extrajudicial statement found at page 80 of the record of appeal, to argue that the Court rightly acted on same. Counsel finally submitted that no case has been made out here to warrant an interference with the decision of the lower Court and that in view of the fact that the trial Court has unquestionably evaluated the evidence before him, it is not for the Court of Appeal to re-evaluate same and come to its own conclusion, citing ENAG V. ADU (1981) 11 – 12 SC 25; OBODO V. OGBA (1987) 2 NWLR (Pt. 54) 1. Learned Counsel then urged that the issues crafted by the Respondent be resolved in favor of the Respondent against the Appellant, Counsel also urged that the appeal be dismissed.

RESOLUTION
Having had the benefit of reading the judgment of the lower Court, the grounds contained in the notice of appeal filed in this appeal, the issues formulated as well as the arguments canvassed by learned Counsel for

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the respective parties, it seems obvious to me that the second issue nominated on behalf of the Appellant which was adopted by the Respondent is apt for the determination of the appeal. This is because, as I have found from the judgment of the lower Court, the question as to whether the lower Court was right when it held that since the Appellant’s appeal before it is solely predicated on an omnibus ground of appeal, it is precluded from reviewing and re-evaluating the evidence led before the trial Court, is of no practical relevance to the outcome of the present appeal, in view of the fact that the lower Court proceeded to consider the state of evidence led before it and reached a decision that the trial Court correctly evaluated the evidence led by the prosecution.

It is settled that, in criminal cases, as in the instant appeal, the prosecution is expected to prove the case against an accused person beyond reasonable doubt. The legal maxim in latin is expressed as in criminalibus probationes debent esse luce clariores, meaning, in criminal cases, the proof ought to be clearer than light or if you will, no man should be convicted if there is any doubt as

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to his guilt. Therefore, before a person can be convicted of an offence, the Court must be satisfied that the guilt of the person has been established beyond reasonable doubt. See LORI V. STATE (1980) 8-11 SC 81.

Prior to delving into the complaint raised by the Appellant against the judgments of the trial and the intermediate Courts, it is essential to say here that there are foundational principles regarding the burden of proof in criminal cases within a Court of law. To this extent therefore, this Court has held in a plethora of decisions that proof of the guilt of an accused person can be established through three (3) recognized modes and this include: (a) direct proof – by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s); (b) through the confessional statement(s) voluntarily made by the accused person(s); and (c) indirect proof – through circumstantial evidence, which irresistibly points to the fact that the accused person(s), and no other, committed the offence(s). In law, any one of these methods can be used to establish the guilt of an accused person. See IGABELE V. STATE (2006) 6 NWLR (Pt.

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975) 100 (SC); EMEKA V. STATE (2001) 6 SCNJ 267.

In the proceedings at the trial Court which eventually led to the appeal before this Court, the Appellant was arraigned and tried on an eight (8) count charge of conspiracy and armed robbery; however, he was only convicted by the trial Court of counts 2 and 6 and sentenced to two (2) years and five (5) years imprisonment for the offences of conspiracy and armed robbery. In reaching the decision to convict the Appellant, the learned trial judge acted on the extrajudicial statements made by the Appellant and the co-accused, as well as the evidence of PW7. See pages 188 – 189 of the records of appeal, where the trial Court held as follows:
“In the instant case, the 2nd accused who made two confessional statements to the Police which were admitted as Exhibits 1 and 5 stated in details how himself and the 3rd accused were drafted into going to the house of the said Alabi Akeem to commit the offence of armed robbery. His story of the entry into the house of the PW8 was amply corroborated in the confessional statements of the 1st and 3rd accused persons i.e. Exhibit 2, 6 and 8. There is no doubt that the

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accused persons have retracted the confessional statements which they made. However, the evidence of PW7 lends credence to the said confessional statements as it tallied in all material particular with the confessional statement. Further, the accused themselves were not able to impeach the said confessional statements which they earlier made. I am therefore, satisfied from the facts stated outside the confession by the PW7 and the Investigating Police Officers that the confession indeed represented the true state of affairs.
In this case, the confessional statement as shown in Exhibits 1, 2, 5, 6, and 8 were positive and unequivocal. I therefore, hold that the offence of conspiracy has been proved beyond reasonable doubt against the accused persons in count 2 of the charge. By the same token, the confessional statement of the three accused persons also gave a detailed account of how the robbery was committed. The said confessional statement were given credence by the evidence of PW7…”

The above finding and conclusion of the trial Court was accepted as correct by the lower Court, at pages 343 – 344 of the records of appeal, the lower

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Court held as follows:
“The appellant is calling upon this Court to review the oral and documentary evidence adduced before the trial Court. But the Acting Chief Judge evaluated the oral evidence coupled with the extra-judicial statement of the Appellant (“Exhibit 8″) having watched the demeanor of the witnesses and of the appellant. It is not the business of this Court to substitute our own view for the views of the learned Acting Chief Judge which is supported by the evidence on record. The appellant has not shown that the facts found by the Acting Chief Judge were wrongly applied to the circumstances of the case, or that the inferences drawn from those facts are erroneous, or indeed, are not reasonably justified, or are not supported by credible evidence given in the trial Court.”

As earlier stated in this judgment, the Respondent in this appeal relied on the extra-judicial statements recorded from the Appellant and the co-accused, as well as the testimony of PW7 to establish the guilt of the Appellant beyond reasonable doubt. Indeed, this evidence was evaluated by the learned trial Judge and acted upon in convicting the Appellant. Learned

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Counsel for the Appellant raised concern on the evidence of PW7. According to the Learned Counsel, the evidence of PW7 who did not witness the commission of the crime, is inadmissible hearsay and I am unable to fault this well-founded argument. For ease of reference, I believe it is necessary to reproduce the relevant part of PW7’s testimony before the trial Court, which is found at pages 125 – 128 of the records of appeal, and it reads as follows:
“I know the accused persons. I know Solomon Oke. He is among the three people standing. He is the 1st accused. I do not know Okey Omonoseh in person. I know Solomon Enejoh he is the 1st accused person.
On 24th July, 2007 at about 8.30 pm, I was at Cyber Cafe at Imo Estate. It was raining from 8.30 pm till 10 pm After the rain stopped, I came back home and met my younger sister outside crying that there was a group of armed men that came into our house. I was asking her how and she said when she heard knock on the door, she thought I was the one and she opened the door. That was how they pushed her in and pointed gun at her that she should face the floor. After that I asked what happened, she said

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they scattered the house and went away with some papers in my cupboard, her cell phone and my Video CD Machine and Digital Camera in the house and some of my trousers, about four of them.”

During cross-examination by Counsel for the 1st accused, PW7 confirmed at page 128 of the records of appeal that he “was not at home when the armed robbers visited (my) house.” I am therefore at a loss as to how a witness who admitted not being present when the crime was committed was presented to testify to the events that transpired during the commission of the said crime. It is elementary law that oral evidence must, in all cases whatsoever, be direct. See Section 126(a), (b) and (c) of the Evidence Act, 2011. Clearly, evidence of a statement made by a person, other than a witness testifying in Court, which is offered to prove the truth of the statement, is inadmissible as hearsay evidence. A witness is expected to testify in Court on oath on what he knows personally, if the witness testifies on what he heard some other persons say, his evidence is hearsay and inadmissible. See Section 38 of the said Evidence Act, 2011 and the old case of UTTEH V. THE STATE (1992)

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LPELR – 6239 (SC) 21, PARAS A – B; (1992) 2 NWLR (Pt. 223) 257 at 2731 PARA F, where this Court held as follows and I quote:
“A piece of evidence is hearsay if it is evident of the contents of a statement made by a witness who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognised exceptions.” See also: Arogundade Vs The State (2009) LPELR-559 (SC) @ 23 B – D; Kasa Vs The State (1994) 5 NWLR (Pt.344) 269. The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction See: Ijioffor Vs The State (2001) LPELR-1465(SC) @ 19 B.F.”
See also FRN V. USMAN (2012) 8 NWLR (Pt. 1301) 141 at 160; SIMEON V. STATE (2018) LPELR – 44388 (SC).
There is no dispute on the fact,

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which is already admitted by PW7, that he did not witness first-hand the alleged robbery incident that was carried out in his home on the 24th day of July, 2007. Therefore, I do not think it will be safe to turn a blind eye to the fact that the evidence elicited from PW7 in relation to what transpired at his home on the said day is clearly in the realm of hearsay, and therefore inadmissible. Such evidence ought not to have been acted upon by the trial Court in reaching a decision that the said evidence corroborates the confession contained in the Appellant’s extra judicial statement and acted upon to convict the Appellant. The evidence of PW7 is hereby expunged. The evidence of PW7 cannot offer any useful support to the case of the Respondent.

Now, what is left of the prosecution’s case is founded principally on the extra-judicial statements of the Appellant, exhibits 2 and 8, which contain his confession. Section 28 of the Evidence Act, 2011 provides that “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.” Indeed, a confession is a voluntary admission by

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a person of his participation in a crime – it constitutes an acknowledgment of guilt. Once the Court is satisfied with the veracity or genuineness of the confession, a conviction can be based entirely on it and such a conviction would not ordinarily be disturbed by an appellate Court.

Meanwhile, when the prosecution sought to tender Exhibit 2, the Appellant’s extrajudicial statement made on the 8th day of November, 2007, the Appellant’s Counsel objected on the ground that the said statement was not made by the Appellant and denied making the statement. The position of the law is that a Court can convict on a confessional statement retracted at the trial if it is satisfied that the accused person made the statement in circumstances which give credibility to the contents of the confession. In a case where a retraction is made by an accused person, it is desirable that before a conviction can be properly based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See KARIMU SUNDAY V. THE STATE (2017) LPELR-42259 (SC). The Court must carefully evaluate

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such statement in the light of other evidence placed before the Court before relying on same to convict. In the case of DAWA & ANOR V. STATE (1980) 8 – 11 S.C (REPRINT) 147, this Court referred to the decision in the English case of R. V. SYKES (1913) 18 C.A.R. 233 to enumerate the tests trial Courts are enjoined to apply in the evaluation of confessional statements before convicting thereon. According to the Court:
“Those tests have over the years been adopted by our Courts in the determination of the probative value to attach to Confessional Statements of accused persons. See for example Nwachukwu v. The State (2007) 12 S.C.M. (pt. 2) p. 447 at 455; Okeke v. The State (2003) 15 NWLR (pt. 842) p. 25; James Chiokwe v. The State (2012) LPELR – 19716 (SC); Sule v. State (2009) 17 NWLR (pt. 1169) p.33 at 60; Nsofor v. State (2004) 18 NWLR (pt. 905) p. 292 at 310 – 311 and Habibu Musa v. The State (2013) LPELR – 19932 (SC). To restate those points, I refer to the case of Ikpo v. State (1995) 9 NWLR (pt. 421) p. 540 where the Supreme Court, per Iguh, JSC said: “It is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial,

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if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; R. v. Sykes (1913) 8 CAR 233 at 236; R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu & Anor v. King (1952) 14 WACA 30; Jafiya Kopa v. The State (1971) 1 All NLR 150; James Obi Achabua v. The State (1976) 12 S.C. 63 at 68 – 69. But it is desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra).” His Lordship went on to stipulate the tests to be applied in determining the truth of such Confessional Statement in the following words: “Indeed the test for determining the truth or otherwise of a Confessional Statement is to seek any other evidence of circumstances which make it probable that the confession is true. In this regard, the Court would consider

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issues such as; (i) whether there is anything outside the confession to show that it is true. (ii) whether the statement is corroborated. (iii) whether the statement of facts made in the Confessional Statement so far as can be tested is true. (iv) whether the accused person had the opportunity of committing the offence charged. (v) whether the confession of the accused person was possible. (vi) whether the confession was consistent with other facts which have been ascertained and proved at the trial.” It would appear that if any of the above stated tests is resolved to be in the negative, the Court would be reluctant to convict on such Confessional Statement.”

I believe the above tests played prominently in the mind of the trial Court in this case, as the learned trial Judge did not convict the Appellant on Exhibit 2 alone. However, the Court also acted on other evidence before it, including Exhibits 6 and 8, which are the extrajudicial statements of other co-accused and the second extrajudicial statement obtained from the Appellant, respectively. It is noteworthy that the Appellant had indeed objected to the admissibility of Exhibit 8, contending

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that same was not voluntarily made. This prompted the learned trial judge to conduct a trial within trial in accordance with laid down procedure in criminal trials. In the Ruling on the trial within trial, found at pages 121 – 122 of the record of appeal, the learned trial judge held as follows:
“After going through the evidence preferred in this trial-within-trial, I am inclined for now to agree that the statement of the 3rd accused was taken voluntarily. The evidence of the prosecution witness on this was consistent and unshaken on this issue. The 3rd accused himself stated that at no time did he disclose to his Counsel that he was beaten or tortured before the trial. It would therefore, seem to me that his raising the issue at this stage is an afterthought. He has shown to this Court a scar which he claims was that (sic) inflicted on him. He said he bled profusely and at a point could not append his signature on the statement as was asked of him. However, there is no medical report or any witness who attended to the accused to show that he was treated for such an injury. He mentioned one Aisha who bought drugs for him but was unable to supply

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any particulars that would have enable the Court to summon such witness on his behalf. In the circumstance, I am inclined to hold that the statement of the accused said to have been made on the 16th November, 2007 was voluntarily made. The objection to its admissibility is therefore, hereby overruled and the statement of the 3rd accused dated 16th November, 2007 is hereby admitted in evidence and marked Exhibit 8.”

It is important to note that the above findings made by the learned trial judge resulting in its decision to admit Exhibit 8 and act on same, is a finding of fact based on credibility of witnesses, and by law, an appellate Court cannot ordinarily disturb or interfere with such findings, which is distinct from a finding of fact based on evaluation of evidence. In this latter case, an appellate Court is in the same position as the trial Court and has the liberty to examine, review and re-evaluate the evidence led at trial and come to a different conclusion. See OSUAGWU V. STATE (2013) LPELR – 19823 (SC). In my view, the learned trial judge who heard evidence on both sides and watched the demeanour, trait, and idiosyncrasies of the witnesses

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during the trial within trial, did not believe the Appellant’s evidence that he was tortured into making Exhibit 8. This decision cannot be faulted, and it is my view that the learned trial Judge was right when he held that Exhibit 8, the Appellant’s confessional statement was voluntarily made. It is revealed in Exhibit 8 how on the 24th day of July, 2007 at about 1920hrs, the Appellant and other persons while being armed with shotgun entered PW7’s house, and carted away several items including documents and a Nokia handset, which phone was handed over to and found with the Appellant. Where an accused person is charged with the offence of conspiracy to commit armed robbery and armed robbery, it is incumbent on the prosecution to prove that: (a) there was a robbery or series of robberies; (b) the robbery or each robbery was an armed robbery; and (c) the accused was one of those who took part in the armed robbery; and (d) there was an agreement between the accused and others to commit the armed robbery. See AFOLABI V. STATE (2010) 16 NWLR (Pt. 1220) 584.

In this case, the confession recorded from the Appellant clearly admits the ingredients of the offence

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of armed robbery as it discloses that there was a robbery on the 24th day of July, 2007; the robbers were armed with a shot gun; and the Appellant participated in the said armed robbery. This Court held in several cases that conspiracy – or the agreement to commit a crime is a matter of inference to be made from the acts or inactions of the parties concerned. In fact, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. See FAMUYIWA V. STATE (2017) LPELR-43836 (SC). In the confessional statements made by the Appellant, the Appellant gave vivid details of how he and the other co-accused achieved the common goal of carrying out the armed robbery. The absence of an express agreement between the Appellant and the others is of no moment as the said conspiracy can be inferred from the criminal acts of the parties, including the act of complicity and the attainment of a common end.
The voluntary confessional statement of an accused which is cogent, direct, positive and unequivocal may, without further evidence, sustain a conviction. In other words, an accused

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person may be convicted solely based on his confessional statement if it is positive, direct, unequivocal, and voluntarily made and consistent with other ascertained facts. See ISAH V. STATE (2017) LPELR-43472 (SC). There can be no better proof of the commission of a crime than the words of the accused himself, voluntarily stating how the offence was committed and the role he played. Exhibits 2 and 8 are confessional statements within the confines of Section 28 of the Evidence Act, 2011, since they admit the elements of the offence and/or facts which constitute the offence. Therefore, even without the evidence of PW7, the Appellant can be rightly and sufficiently convicted on his confessional statement alone and this was rightly done in this case. See ADEBAYO V. STATE (2014) LPELR-22988 (SC).

On the whole, therefore, I find no merit in this appeal, and it is hereby dismissed. The decision of the Court of Appeal delivered on the 31st day of January, 2014 in APPEAL No: CA/A/318C2/2011 is hereby affirmed.

Appeal dismissed.