Nnamdi Osuagwu V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR J.S.C

The Appellant, as accused person was arraigned before an Abeokuta High Court (Ogun State) on a two count charge which read:

COUNT 1

That you, Nnamdi Osuagwu and others still at large on or about the 27th day of November, 2001 at No, 2 School Road, Ibafo in the Abeokuta Judicial Division conspired together to commit a felony to wit. Armed Robbery and thereby committed an offence contrary to Section 5(b) and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act 1990, as Amended by the Tribunals (Certain Consequential Amendments, etc) Act 1999.

COUNT 2

That you, Nnamdi Osuagwu and others still at large on or about the 27th day of November, 2001 at No. 2 School Road, Ibafo in the Abeokuta Judicial Division, while armed with offensive weapons to wit: guns robbed one Mathew Romanus of the sum of N10,000,00 (Ten Thousand Naira) and thereby committed an offence contrary to and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended by the Tribunals (Certain Consequential Amendment) Act 1999.

Trial commenced with reading of both counts to the accused person on the 5th of December, 2003. He entered not guilty pleas to both counts. At the trial the respondent (prosecution) called six witnesses, and tendered fifteen exhibits. They are:

1. Statement of Sunday Chukura – Exh. A
2. Statement of Mathew Romanus – Exh. B
3. Statement of Mathew Romanus – Exh. C
4. Statement of accused/appellant – Exh. D
5. Statement of accused/appellant – Exh. E
6. Admission/confessional Statement Form – Exh. F
7. Damaged muzzle of short gun – Exh. G
8. Two live cartridges – Exh. G1, G2
9. Five empty shells – Exh, G3, G4, G5, G6, G7
10. Two wraps of weeds suspected to be Indian Hemp – Exh, G8. G9

A trial within trial was conducted werein a damaging confessional statement, Exhibit E was admitted in evidence.

The accused person gave evidence in his own defence, but called no witness. Closing speeches were made on the 18th January 2005, and judgment delivered on the 28th of January, 2005.

The Learned trial judge found the appellant guilty on both counts. The penultimate paragraph of the judgment explains the learned trial judge’s reasoning.

It runs as follows:

“I have tested the confession of the accused person in this case against other admitted facts and I hold that it can be sustained. It is a voluntary confession, I even hold that without confession of the accused person I believe the evidence of the prosecution witnesses implicating the accused person in the crime of the armed robbery that was committed on the 27th November, 2001 of Ibafo, I hold that there was robbery on that day, that the robbers were armed and that the accused person was one of the robbers.

I therefore find him guilty on count 1 and 2 as charged.”

The Appellant was sentenced to death. The accused person lodged an appeal. The appeal was heard by the Court of Appeal, (Ibadan Division), that court heard and dismissed the appeal as being without merit. This appeal is against that judgment.

In accordance with well laid down rules of this court, briefs were duly filed and exchanged. The Appellant’s brief was filed on the 4th of May, 2010, while the respondent’s brief was deemed filed on the 4th of May, 2011.

Learned counsel for the appellant formulated two issues from his eleven grounds of appeal. They are:

1. Whether appellant was identified as required by the law to have supported his conviction and sentence by the trial court which was affirmed by the lower court.
2. Whether the lower court was right in upholding the judgment of the trial court that the prosecution proved its case beyond reasonable doubt against the appellant.

Learned counsel for the respondent adopted the issues formulated by the appellant. This appeal shall be decided on the issues formulated by the appellant, which were adopted by the respondent. At the hearing of the appeal on the 1st of November 2012 both counsel simply adopted their respective briefs. Learned counsel for the appellant. Mr. H.O. Afolabi urged this court to allow the appeal, while Mr. C.O. Ajose-Adeogun urged on us to dismiss the appeal.

THE FACTS

A three man gang of armed robbers went to a shop owned by PW3. The shop is at No.2 School Road Ibafo, Abeokuta Ogun State. At about 8.pm, on the 27th of November, 2011, the gang made up of the Appellant, Emeka and Nnewi arrived at the shop. The appellant pointed a loaded gun at PW3 and ordered him to lie down on the floor. He complied. The other two robbers proceeded to search the shop for money. They found some money, two of the robbers fled while the appellant continued the search. PW3 on seeing that the other two robbers had fled,engaged the appellant in a fight but was knocked on the head with the gun. The appellant ran away. As he was running away several people chased him shouting thief, thief. The other two robbers escaped but he was arrested in the bush by the expressway. Two live cartridges and wraps suspected to be Indian hemp were found on the appellant. Nearby in the bush the damaged muzzle of the short gun was recovered.

I shall now proceed to examine the two issues formulated by the appellant and adopted by the respondent to see if the judgment of the court below was flawed, and in doing so I shall address the issues seriatim.

ISSUE 1

Whether appellant was identified as required by the law to have supported his conviction and sentence by the Trial Court which was affirmed by the lower court.

Learned counsel for the appellant observed that where the identity of an accused is in doubt and the prosecution’s case depends solely on the identification of the accused, great caution must be applied in convicting the accused. Reliance was placed on Archibong v. State 2006 14 NWLR pt. 1000 p. 349.

Eyisi v. State 2000 15 NWLR pt.691 p.555

Ojukwu v. State 2002 4 NWLR pt.756 p.80

Ajibade v. State 1981 1 NWLR pt.48 p.205

He submitted that appellant was not properly identified, and so the case was not proved beyond reasonable doubt contending that in such circumstances the Appellant is entitled to be acquitted and discharged.

Learned counsel for the respondent observed that the appellant was positively identified by PW2 and PW3, contending that the identity of the Appellant was never in doubt to both witnesses. He submitted that the identification of the Appellant was proper and a conviction based on this was proper. He urged the court to resolve issue No.1 in favour of the respondent.

IDENTIFICATION OF THE APPELLANT.

After reviewing the testimony of PW2 and PW3 and their statements to the Police the learned trial judge held that:

“…there was robbery on that day, that the robbers were armed and that the accused person was one of the robbers.”

After a thorough examination of the Record of Appeal the Court of Appeal had this to say:

“…the manner in which the Appellant was identified shows that an identification parade was unnecessary, PW2 and PW3 identified the appellant at the earliest opportunity…”

It is the circumstances of a case as a whole that determines whether on identification parade is necessary.

In the following situations an identification parade must be conducted. The purpose being to search for the truth, that is, to identify who committed the offence.

An identification Parade should be conducted:

1. When the offence was committed in the dark and the victim only had a fleeting encounter with the robber.
2. When it is clear that the victim was traumatized when the offence was committed.
3. Where the eye-witnesses/victim fails at the earliest opportunity to name the person known to him who he claims committed the offence.
4. When the robber was not arrested at the scene of the robbery, but was arrested after the robbery.

The above is not exhaustive. Where on the other hand the victim of the crime or a witness promptly identifies the suspect there would be no need for an identification parade. PW2 is an eye-witness while PW3 is the victim and also an eye-witness. PW2’s Statement is exhibit A. His testimony in court was as follows:

“I saw the accused person among the robbers, I saw three armed robbers as there was light, I was collecting bottles from my backyard, I cannot say which of them my bottle hit, I do not know which of them shot me.

“I saw the armed robbers when I was throwing bottles of them. At the time I was throwing the bottles I saw the accused person amongst the robbers.”

According to PW3

“…I have a lantern on top of my show glass and with that light I can see anything. There was also candle light. The accused was the first to enter and was near me at all times.

…the accused was the one that pointed the gun at me. I still saw them as I lay down. The accused took the money and handed the money to another…”

The Appellant was not arrested at the scene of the crime, rather he was chased from the scene of the crime by several people shouting thief, thief and eventually arrested in the bush very close to the expressway. The fact that the appellant was arrested in the bush was confirmed by the Appellant in his first statement Exhibit D. Surely there is no need for an identification parade in the circumstance in which he was arrested and positively identified by PW2 and PW3.

“The Accused/Appellant was the one that pointed the gun at me. He took the money and handed it to the two other members of the gang; I know the accused very well since the operation lasted about 30 minutes. The accused was the first to enter”. To my mind the above is clear proof that PW3 easily recognized the Appellant moreso as the Appellant was in the shop for about 30 minutes and it was he who pointed the gun of PW3. I hold that an identification parade was unnecessary.

Furthermore an identification parade is conducted when the identity of the suspect is in doubt. Where, an accused person confesses to have committed the offence for which he is charged, an identification parade is clearly unnecessary. It would amount to a waste of time to go looking for the person who committed an offence when that person has come forward to say that he committed the offence. Exhibit E apart from being a confession to several robberies muggings etc the Appellant made it abundantly clear that he took part in the armed robbery on the 27th of November 2001 in the shop of PW3 situated of No 2 School Road, Ibafo, Abeokuta, Ogun State. I am satisfied that the identity of the Appellant as one of the armed robbers was never in doubt.

DID THE APPELLANT HAVE AN ALIBI

Alibi means “elsewhere”. When an accused contends that he cannot be guilty of the offence charged because at the time of commission of the offence, he was somewhere else raises the defence of alibi or an alibi defence. See

Yanor v. State 1965 1 ALL NLR p.193

Ikono & anor v. The State 1973 8 NSCC p.352

Okpanefe v. The State 1969 6 NSCC p.382

After a suspect is arrested, Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence. In court an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the court but for the prosecution to disprove it. A plea of Alibi is demolished if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of the crime of the material time. See Njovens v. State 1973 5 SC p. 17.

The defence of Alibi was raised in the first statement of the Appellant to the Police Exhibit D. On 28/11/2007 was the first opportunity the Appellant had to raise the defence of Alibi when he wrote Exhibit D. He had no objection to it being admitted in evidence. His Alibi runs as follows:

“…I left Lagos around 6.pm, for Ibafo. I wanted to come and buy wood. I only went to price the wood. I come with sum of N1, 500,00k… I did not price the wood because the seller has closed.”

It is clear the Appellant’s alibi is very vague. In one breath he did not go to buy wood and yet in the next breath he went to buy wood. The following questions vital to an alibi being sustained were left unanswered, what day of the week did he go to Ibafo to buy or price wood. When did he get to Ibafo, and where in Ibafo did he go to buy wood. Who were the people he went to buy wood from In the absence of answers to these questions his alibi is vague and it would amount to a waste of time for the Police to go looking aimlessly in Ibafo for wood sellers. In the circumstances the Appellant failed woefully to establish an alibi worth examining and the Police has no duty to disprove a worthless alibi. Consequently the defence of alibi is clearly of no value whatsoever.

The defence of Alibi was raised in court when the appellant gave evidence. He said in support of his defence of alibi;

“…on day in November 2001. I left Lagos to Ibafo to buy planks for work I was at the adjacent Road of the plank sellers shop of sawmill. I saw that they have closed. This was about 6.30-7pm. On my way back I stood at the bus stop to take a vehicle back to Lagos. I saw four boys started beating me(sic) and claimed that I was a thief…”

It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not of the scene of the crime but somewhere else.

My lords, the Appellant did not call any witness from the sawmill he claimed he went to, to come to court to say that indeed the Appellant was with them at the time the crime was committed. He did not state the date that he went to Ibafo and finally since the respondent adduced sufficient and accepted evidence to wit confessional statement, eye-witness evidence by PW2 and PW3, and exhibits to fix the Appellant of the scene of the crime of the material time the plea of alibi is comfortably demolished and the prosecution has no further burden to further disprove a worthless alibi. The defence of alibi fails woefully in the circumstances.

ISSUE 2

Whether the lower court was right in upholding the judgment of the trial court that the prosecution proved its case beyond reasonable doubt against the appellant.

Learned counsel for the appellant observed that where an accused person has retracted a confessional statement, the court can only convict if satisfied that there are facts outside the confessional statement that can corroborate the alleged confession reference was made to.

Ikpo v. State 1995 9 NWLR pt.421 p.540

Agagaraga v. FRN 2007 2NWLR pt. 1019 p.586

He submitted that in this case there are no facts outside the confessional statement that can corroborate same, and so there was no credible confessional Statement.

Learned counsel observed that the prosecution was unable to link any of the exhibits to the appellant. He further observed that the issue of conspiracy becomes a mere academic exercise as the Appellant could not have conspired to commit a crime in which it was held that he was not in any way connected to. Finally learned counsel observed that there was no proper evaluation of evidence, as the trial court merely restated the evidence of the witnesses and concluded without any basis that both charges had been proved by the prosecution. He urged this court to allow the appeal since the case was not proved beyond reasonable doubt.

In his own submission Learned counsel for the respondent observed that the guilt of an accused person may be proved by (a) confessional Statement, (b) circumstancial evidence and (c) evidence of eye-witness, He observed that the evidence adduced by the prosecution clearly consisted of the Appellant’s confessional statement, evidence of positive identification by two eye-witnesses (PW2 and PW3).

He observed that the damaged mouth of the pistol was recovered in the bush where the Appellant was arrested, while the five empty shells and live cartridges were found at the scene of the robbery contending that the fact that the damaged pistol, exhibit G was found in the bush where the Appellant was arrested is enough circumstantial evidence to tie this exhibit to the appellant and his guilt can be inferred from this evidence, Reliance was placed on S. Emeka v. The State 2001 4 NWLR pt.734 p. 666.

On conspiracy learned counsel submitted that Exhibit F clearly showed that the appellant was acting in conjunction with two other people, contending that a case of conspiracy has been established by the prosecution. Reliance was placed on Sule v. State 2009 17 NWLR pt, 1169 p.33

On the confessional Statement, Learned counsel urged this court to hold that the admission of the confessional Statement was proper, contending that this court should not disturb the finding of fact by the learned trial judge. Reliance was placed on Section 27(2) of the Evidence Act.

Finally Learned counsel submitted that the learned trial judge properly evaluated the evidence and exhibits tendered and based on these, the court arrived at a just decision which resulted in the conviction of the appellant.

Concluding, he observed that this appeal should be dismissed as lacking in merit.

To succeed in a case of Armed Robbery contrary to section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999 the prosecution must prove the following:

1. That there was a Robbery
2. That the accused/appellant was armed
3. That the accused/appellant while armed participated in the robbery.

Armed Robbery is stealing with violence and the standard required is proof beyond reasonable doubt. See section 138(1) of the Evidence Act.

In Nwaturuocha v. The State 2011 3SCNJ p.148

I explained proof beyond reasonable doubt thus:

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”

In proof of its case beyond reasonable doubt, the respondent relied on the confessional statement of the Appellant. Exhibits E and F. Eye-witnesses evidence, PW2 and PW3, and exhibits. It is the duty of the prosecution (respondent) to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required a single witness can easily establish a case beyond reasonable doubt.

Now, what was the prosecution case

THE CONFESSIONAL STATEMENTS OF THE APPELLANT EXHIBITS E AND F.

Section 27(1) of the Evidence Act States 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. See

Igbinavia v. State 1981 2 SC p.5

Yusufu v. The State 1976 6 SC p.167

A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgment of guilt. A confession must either admit the elements of the offence or all the facts which constitute the offence. Once the court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an appellate court. See Sykes 8 C.A.R. p.23,R. v. Ajayi Onokoro 7 WACA p.146

Exhibit E is a confessional Statement in view of the fact that it admits the elements of the offence and/or facts which constitute the offence.

Exhibit F is on admission/confessional Statement Form. The Appellant appended his signature to it. His signature implies full agreement with everything in it. That explains why he (the appellant) did not object when exhibit F was tendered. Exhibit E and F are confessional Statements and admissions within the warm embrace of section 27(2) of the Evidence Act. A court can convict on an accused person’s extra-judicial confession which is voluntary and true but inconsistent with his evidence in court. See

Egboghonome v. The State 1993 7 NWLR pt.306 p.383

Aremu v. State 1991 7 NWLR pt.201 p. 1

Kim v. State 1992 4 NWLR pt.233 p.17

Queen v. Obiasa 1962 2SCNLR p.402

Once the court is satisfied that the confession was free, voluntary, and true, it is safe to convict, but it is desirable to have outside the confession, some evidence be it slight of circumstances which makes it probable that the confession is true. That is to say independent evidence should be identified to corroborate the confession. See R. v. Kanu 14 WACA p.30

Kopa v. State 1971 1 ALL NLR p. 150

When the Statement of the accused person is to be tendered and the accused person objects on the ground that the statement was not made voluntarily a trial within a trial should be conducted. A Statement admitted in evidence when there was an objection to its admissibility on grounds of involuntariness and a trial within trial was not conducted, such a statement should be expunged, for being inadmissible. See

Balogun v. A.G. Federation 1994 5 NWLR pt.345 p.442

Ikpasa v. Bendel State 1979-1981 12 N.S.C.C, p.300

Exhibit E is a confession to several other robberies by the Appellant and also to the armed robbery in question. Extracts from exhibit E reads as follows:

“…Three of us later left for Ibafo where we robbed a chemist man. The three of us comprises of myself, Emeka and Nnewi arrived at the chemist man’s shop at about 8.30 p.m., I entered the shop and pointed a gun at the owner of the shop and ordered him to lie down or else I will shoot him. The man obeyed immediately but when I told him to surrender all his money realized from the sale as he did not respond on time Emeka who was watching outside came in and asked me what happened and he collected the gun from me and hit the chemist man on the head… the sister of the chemist man who earlier ran out started shouting thief, thief, which alerted people and all the villagers who came out in large numbers but before their arrival Emeka had collected all the money found in the shop and we ran outside and started running. The people started pursuing us and Emeka fired back at them… at last I was arrested…”

The confessional statement, exhibit E reveals that on 27/11/2001 of about 8.30pm, the Appellant in the company of two other persons still at large while armed with locally made gun robbed PW3 in his shop of sums of money. The confession clearly admits the terms of the offence. The learned trial judge after the appellant objected to the admissibility of exhibit E on grounds of involuntariness of the Statement conducted a trial within trial. The Ruling on the trial within trial runs as follows:

Ruling

“I have listened to the case of the prosecution and the accused person. I have also watched the demeanour of the accused person. To say the least he cannot be believed when he said he was butchered before making the Statement. The Statement was made voluntarily and it is admitted as Exhibit E.”

There is a clear distinction in finding of fact based on credibility of witnesses and finding of fact based on evaluation of evidence. In the latter case an Appeal Court is in the some position as the Trial Court and so it can proceed to examine the evidence and come to a different finding from that of the trial court. This is not the case with finding of fact based on credibility of witnesses. The trial judge sees and hears the witness, he and he alone is in the best position to comment on the demenaour and credibility of a witness, After the Learned trial judge watched the demeanour of the Appellant and listened to his evidence he did not believe him for good reason in my view. The finding by the learned trial judge cannot be faulted and tremendous weight must be given to his findings, I am firmly of the view that Exhibit E, the appellant’s confessional tatement was made voluntarily; it is direct, positive, and true. The learned trial judge was right to admit it in evidence and act on it and the Court of Appeal was correct to confirm the judgment of the trial court.

A trial within trial is a mini-trial that must be conducted when on accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to lead evidence to show that the statement was made voluntarily, while the accused person and his witnesses are to prove the opposite. This is a trial where the credibility of witnesses, demeanour is very important.

Now, in such a trial, credibility of witnesses is based on demeanour. An Appeal Court cannot or ought not to interfere since it never had the advantage of seeing the witnesses. It can only interfere if the findings were based on inference drawn from evidence. See

Omoregie v. Idugiemwanye 1985 2 NWLR pt.5 p.41

Ugwu v. Ogburuzu 1974 10 SC p.191

Olatunji v. Adisa 1995 2 NWLR pt.376 p.167

Nzekwu v. Nzekwu 1989 2 NWLR pt. 104 p, 373

The learned trial judge admitted Exhibit E as voluntarily made by the appellant. This was based on the finding of fact by the trial court based on credibility of witnesses after watching demeanour. An Appeal Court would not upset such findings. If I may add, it is during a trial within trial that the defence counsel must ensure that the confessional statement is not admitted in evidence, and not on appeal.

EYE-WITNESS EVIDENCE OF PW2 AND PW3, AND EVALUATION OF EVIDENCE.

The judge takes down all relevant evidence. That is perception. Thereafter the judge weighs the evidence in the circumstances of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. See

Ibanga v. Usanga 1982 SSC p, 102

Nwankpa v. Ewulu 1995 7 NWLR pt. 407 p.269

Olatunji V. Adisa 1995 2 NWLR pt.376 p. 167

Sanusi v. Makinde 1994 5 NWLR pt.342 p.230

When evaluation of evidence is properly done the findings of the trial judge are difficult to fault by an Appellate Court. In cross-examination PW3 said that it was the Appellant who pointed the gun of him and that the operation lasted 30 minutes. He knows the Appellant very well, but he would not be able to recognize the other two.

The Learned trial judge properly evaluated evidence when he examined the testimony of PW2 and PW3 on page 31 and 32 of the Record of Appeal and was satisfied that both were indeed eyewitnesses, I have examined the evidence of PW2 and especially PW3 and, I am satisfied that he had a good look at the Appellant when the Appellant was in his shop for about 30 minutes. I tend to believe him more when he said that he may not be able to recognize the other two robbers. This is clearly the testimony of a truthful witness. Evaluation of evidence was properly done and PW2 and PW3 are genuine eyewitnesses.

EXHIBITS

A Judge is at liberty to make inferences and deduce or infer from the evidence before him. The Appellant and two other members of his gong were chased by several villagers shouting “thief” “thief”. Emeka was armed and he shot into the crowd, PW2 was the person shot. The three armed robbers were chased into the bush. The appellant attested to this fact when he said:

“I was arrested in the bush by some people in the town”. See Exhibit D.

Exhibit D was the first statement written by the Appellant. He never denied its contents. The damaged locally made gun was recovered in the bush where the Appellant was arrested and where the other two members of the armed gang ran to and escaped.

My lords it is very reasonable to infer that the armed robbers threw the gun away when they were trying to escape. The gun is easily linked to the appellant. After all if he was armed with the gun or was in company of persons armed when the armed robbery was carried out in PW3’s shop, these facts justify a conviction under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990, as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999.

The long settled position of the law is that the court may convict on accused person on his extra judicial confession provided it was made voluntary. It is desirable though, that some independent evidence, be it corroboration should be identified which would make it probable that the confession was true. The confession to armed robbery was free and voluntary and in itself consistent and probable, and the inculpating statements were corroborated by facts testified to by witnesses for the prosecution. e.g. eyewitnesses evidence of PW2 and PW3. The fact that the gun was recovered in the bush, near where the appellant was arrested, to my mind these fact show that the confession was true.

CONSPIRACY

In Oyediran v. Republic 1967 NMLR p. 122 Coker JSC explained conspiracy as follows:

1. Conspiracy may be formed in one of the following ways:

(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.

(b) There may be one person who is the hub around whom the others resolve, like the centre of a circle and the circumference.

(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is what is called the chain conspiracy.

2. In order to establish conspiracy therefore it is not necessary that the conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. See

State v. Salawu Vol. 48 NSCQLR p.290

Erin v. State 1994 5 NWLR pt.346 p.522

Oladejo v. State 1994 6 NWLR pt. 348 p.101

Conspiracy is complete upon an agreement by the conspirators and in most cases agreement is inferred or presumed. In all cases of conspiracy the court must be satisfied with evidence of complicity of the accused person in the offence. The evidence accepted by the trial court and admitted by the appellant is that the appellant and two other members of his gang of armed robbers robbed PW3 in his shop on the 27th of November 2001 while armed it is clear that the three of them agreed to steal from PW3 and that establishes the offence of conspiracy against the appellant.

Once a judgment of a Trial Court answers the following positively an appeal would be dismissed.

1. The prosecution must prove the essential elements of the offence.
2. The case must be proved beyond reasonable doubt.
3. Was evaluation of evidence of prosecution and defence witnesses properly done

All the elements of the offence of armed robbery were established beyond reasonable doubt after a thorough evaluation of evidence by the learned trial judge. The confessional statement which was made voluntary by the appellant confirms the facts that the appellant was one for the armed robbers. In the circumstances the judgment of the court of trial, confirmed by the Court of Appeal was correct.

Finally this court will not interfere with the concurrent findings of the two lower courts on issues of fact except the findings are perverse, or cannot be supported by the evidence led, or there is established a miscarriage of justice or violation of some principle of low or procedure.

See,Ugwanyi v. FRN 2012 vol.49 pt.11 NSCQLR p.1243

Afolalu v. The State 2010 vol.43 NSCQLR p.227

I am unable to see anything to warrant the interference by this court with the judgment of the two courts below. The appeal lacks merit.

I dismiss the appeal and confirm the conviction and sentence of the appellant by the Court of Appeal.

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