ADOBA v. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 2018

SC.430/2014

Before Their Lordships

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria


Between

SUNDAY ADOBA –Appellant

AND

THE STATE –Respondent

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OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Ibadan Division, Coram: Hon. Justice Chidi Nwaona Uwa, JCA, Hon. Justice Obietonbara Daniel Kalio, JCA and Hon. Justice Haruna Simon Tsanmani, JCA. The Court’s judgment was delivered on the 27th March, 2014 affirming the judgment of the trial Court, delivered on 15th day of December, 2010.The appellant as the second accused person and one other had been charged with the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation, 2004.
Upon arraignment, the two accused persons pleaded not guilty to the charge and the case proceeded to trial. The prosecution called three witnesses while each of the two accused testified but called no other witness. The case of the prosecution goes thus:
On the 1st day of May, 2008, the two accused persons – one Michael Oloye as 1st accused and the appellant, at Idedo village along Owode/Idiroko Road, near Iju town, riding in a Nissan Bluebird car and posing as policemen accosted PW1 who was travelling in her own Nissan vanette bus with her aides towards sango. The accused flashed police identity card and asked for the vehicle particulars of her bus, which the driver to PW1 produced. The accused asked if the PW2 carried any contraband in the bus but the PW2 answered in the negative, that they did not carry any contraband. The accused then started to search the bus and discovered the sum of N365,000.00. – PW1’s money in a polythene bag where it was kept and took the money. The 2nd accused (appellant) pulled out a pistol and ordered the PW1 and her team to enter the bus. The accused dropped the money in their Nissan Bluebird car and drove off, initially towards Sango but later made a U-turn towards Atan. PW2 who was the driver to PW1 chased the accused but later lost sight of them. With the help of some Police Officers at a check point and some commercial motor cycle riders at Atan junction, they discovered that the accused had driven towards Agbara direction, hence they too followed the same direction. The accused later abandoned their car and fled. With the help of the villagers, the accused were later arrested while trying to escape through the river. The 3rd suspect however escaped with the money. The two accused were taken to Agbara Police Station where PW1 and PW2 made statements.
PW3, then Inspector Gideon Ogunlabi was the Investigating Police Officer (IPO), formally serving at the Anti-Robbery Section, State CID, Abeokuta. On 5th of May, 2008, a case of armed robbery was referred to him for investigation from Agbara Division. He obtained the statements of the witnesses and the accused persons, who volunteered their statements. He observed that the statements of the two accused were confessional in nature, hence he took each of them before a superior police officer, ASP Sola King. The two accused confirmed that the statements were their voluntary statements and then signed same before the ASP. PW3 also signed and the ASP endorsed same. The said statements were tendered in evidence and were admitted without any objection and marked Exhibits A and B for the 1st and 2nd accused respectively. The Investigating police officer at the Divisional level- one sergeant Njoku, was reported to be on a foreign mission but his own statement had been obtained and was tendered and admitted in evidence as Exhibit C. PW3 also tendered the statements made by the accused at Agbara police Division. The defence objected to the admissibility of the statements, which objection was overruled, and same were admitted in evidence and marked as Exhibits A2 and B2 respectively. PW3 led a team of policemen to Akinwumi village where the accused were apprehended but they did not find the loot in the river where the accused claimed they had dropped the money. All efforts to arrest the 3rd member of the gang proved abortive.
The defence of the two accused persons was total denial. However, the trial Court found that even though each of the two accused denied robbing the PW1, their evidence in almost every material particular confirms the case of the prosecution. Upon review of the total evidence adduced, the trial Court found that the prosecution proved the two counts of conspiracy and robbery against the two accused persons beyond reasonable doubt. They were found guilty, convicted and respectively sentenced to 14 and 21 years imprisonment on each of the two counts.
Dissatisfied with the judgment of the trial Court, the 2nd accused/appellant appealed to the Court below. In its unanimous decision handed down on 27th March, 2014, the Court below found that the appeal was unmeritorious and same was accordingly dismissed. The judgment of the trial Court was affirmed.
Further dissatisfied, the appellant appealed to this Court on 24th April, 2014 upon five grounds of appeal. Pursuant to the Rules of this Court, upon settlement of records, parties filed and exchanged their briefs of argument. The appeal was

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therefore heard upon the following processes: Appellant’s brief of argument settled by Oladipo Olasope Esq., filed on 18/9/2014 and the respondent’s brief of argument settled by Chief Henry Eshijoram Omu, filed on 25th November, 2015.
In the appellant’s brief of argument, the appellant distilled three issues for determination of the appeal but opted to abandon the third issue he had earlier formulated from ground five of his Notice and Grounds of appeal. The remaining two issues are as follows:
(a) Whether the contradictions in the evidence of the prosecution witnesses were not material. (Grounds 1 and 2).
(b) Whether the prosecution had been able to prove its 
case beyond reasonable doubt as required by law (Grounds 3 and 4).
Learned counsel for the appellant argued the two issues together in the brief of argument.
He contended that the evidence before the Court which was relied upon in convicting the accused, was the evidence of PW1 and PW2. And that the Court below also relied upon the same testimony, in affirming the conviction of the lower Court. He however submitted that the evidence of both witnesses materially contradicted, as a result, were unreliable for any Court to convict upon such unreliable evidence. Learned counsel identified what he considered as material contradictions in the testimony of the said witnesses on pages 35,37,38 and 39 of the record, in particular, as to who of the two accused persons pulled out the pistol or gun and pointed same at the victims on the day of the attack. And also as to where the money was found by the accused in the car and taken away into the accused’s own vehicle. He submitted that the said contradictions were material and went to the root of the prosecution’s case. He relied on Akano Vs. The State (2011) All FWLR (Pt.597) 624 at 663; Abogede Vs. The State (1996) 5 NWLR (Pt. 448) 270 at 279. He submitted that where prosecution witnesses contradict themselves, the Court cannot pick and choose which evidence to believe. The Court is to disregard both testimonies since it shows that the said witnesses are unreliable. He relied on Onubogu Vs State (1974) 9 SC.1; Sowemimo Vs. State (2004) 11 NWLR (Pt. 885) 515.
Learned counsel contended that the testimonies of both PW1 and PW2 being so unreliable ought to have been disregarded by the Court. And that once these testimonies were disregarded, there was nothing left for the Court to rely upon, the appellant having denied the alleged confessional statement admitted as Exhibit B2. He submitted that having been retracted, the Court is required to look for evidence outside the statement to convict. He relied on Otufalo Vs State (1968) NMLR 265. He referred to part of appellant’s testimony where he retracted the statement he was said to have made and submitted that there must be corroboration outside the said statement before the accused can be convicted. He contended that there was no corroboration in the case, hence learned counsel urged the Court to acquit and discharge the appellant.
In arguing the second issue together, learned appellant’s counsel contended that the prosecution did not prove its case beyond reasonable doubt to have warranted the Court below in affirming appellant’s conviction by the trial Court. He referred to the definition of robbery by the Court below using Section 15 of the Robbery and Firearms Act. He contended that the Court below rightly interpreted the law to show that “violence” is a necessary ingredient of robbery and that there was no evidence of use of violence in this case by the appellant, yet the trial Court convicted the appellant. He submitted that the prosecution did not prove the case beyond reasonable doubt as required by law. Learned counsel contended that the Court below fell into serious error when it held that conspiracy can be established even though the offence of robbery has not been proved. He submitted that the Court below was wrong with the conclusion, as the offence of conspiracy even though separate from the offence of robbery are both dependent on each other. He relied on – Amadi vs State (1993) 8 NWLR (Pt.314) 644 at 674; Aituma Vs. State (2006) 10 NWLR (Pt.989) 452. He submitted further that where the substantive offence has not been proved, conspiracy cannot stand. He urged the Court to allow the appeal and set aside the conviction of the appellant by the trial Court which was affirmed by the Court below.
Having chosen to abandon issue No. 3 distilled from Ground 5 of the grounds of appeal, same does not require any attention. It should be discountenanced. Accordingly issue No. 3 and the argument thereon are hereby struck out.
In its respondents brief of argument settled by Chief Henry Eshijonam Omu, two issues were formulated for the determination of the appeal. The said two issues of the respondent, though not tied to any specific grounds of the appeal

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as filed by the appellant, but are the same with the two issues distilled by the appellant. They were only differently couched and numbered.
Issue 2 of the respondent which is Issue 1 of the appellant is whether there are material contradictions in the evidence of the prosecution witnesses that are capable of vitiating the conviction and sentence of the appellant by the lower Court.
Learned respondent’s counsel referred to the arguments of the appellant on the evidence of PW1 and PW2 which the trial Court relied upon in convicting the appellant and which the Court below also relied upon in affirming the conviction of the appellant to the effect that the said evidence contradicted materially. He referred to the alleged contradiction on who among the robbers actually pulled out the gun to threaten and rob the PW1 and PW2. Learned counsel contended that, assuming without conceding that the contradiction is fatal, it can only be material to the offence of Armed Robbery but not the offence of robbery simpliciter. And he further contended that it was this that led the trial Court to hold that the prosecution did not establish that a gun or pistol was used, consequent upon which the appellant was convicted for the offences of conspiracy and robbery which he submitted were clearly proved by the prosecution against the appellant. He submitted further that to establish the offence of robbery, simpliciter, the prosecution is not required to prove the use of a gun or pistol. He urged the Court to discountenance appellant’s argument on this issue.
On the purported contradiction on the testimony of the prosecution witnesses as to where exactly in the vehicle the money was kept before it was taken by the appellant and his gang, learned counsel contended that assuming without conceding that there was such a discrepancy, then it was a minor discrepancy and not material. He stated that the important thing was that the money was in the vehicle at the time the robbery took place and was taken away by the appellant and his co-conspirators under threat and violence. He submitted that where exactly the money was kept inside PW1’s vehicle before it was removed was immaterial to the offence of Robbery. He referred to the statement of the appellant (Exhibit B2) where it was admitted that the appellant searched the vehicle and took the money they found in it, and that this statement was corroborated by the statements of the co-accused also made to the police. He submitted that the Court below was right in their holding that, where the money was kept in the vehicle before it was stolen is not a material element or ingredient to the proof of the offence of Robbery.
Learned counsel submitted that there was no material contradictions of any significance in the evidence of PW1 and PW2 that is capable of vitiating the conviction of the appellant for the offences of conspiracy to commit robbery and robbery by the trial Court which was affirmed by the Court below. He urged the Court to so hold.
Learned counsel contended that for any contradiction or discrepancy in the testimony of the prosecution witnesses to destroy the credibility and thus, the evidential value of the testimony of such witnesses, the contradictions being raised must be material contradictions, that go to the root of the evidence on the point in issue and therefore fatal to the case of the party relying on it. He relied on Akpabio Vs The State (1994) 7 NWLR (Pt.359) 635; Igabele Vs The State (2007) 6 NWLR (Pt.975) 100 at 132.
He submitted that where an appellant complains of contradictions in the evidence adduced by the Prosecution, it is not sufficient to merely show that such discrepancies exist. It must be shown that the said contradictions amount to substantial disparagement of the testimony of the witnesses and that it will be dangerous or lead to a miscarriage of justice to convict on such contradictions. He submitted that the appellant failed to show this, hence he urged the Court to hold that there were no material contradictions in the testimony of PW1 and PW2, material enough to vitiate the appellant’s conviction. He urged the Court to discountenance appellant’s argument on this point.
On its second issue, whether the prosecution proved its case beyond reasonable doubt against the appellant, to justify the affirmation of the conviction and sentence by the Court below, learned counsel contended that in every criminal trial, the prosecution is required to prove its case beyond reasonable doubt. He relied on Nigerian Airforce Vs. Obiosa (2003) 4 NWLR (Pt.810) 233 at 253; Obiakor Vs The State (2002) 10 NWLR (Pt.776) 612 at 616.
Learned counsel referred to the evidence adduced by the Prosecution to prove its case beyond reasonable doubt. In particular, the evidence of both PW1 and PW2. Also the confessional statement of the appellant which was admitted and

…………………….D…………………….

marked, Exhibits B and B2.
Learned counsel referred to Section 15 (1) of the Robbery and Firearms (Special Provisions) Act Cap 398 as it defines Robbery. He contended that the purport or proof in all criminal trial is that, if the essential ingredients of the offence have been proved by the Prosecution, the charge is proved beyond reasonable doubt. He referred to the testimony of PW1 and PW2 on how the appellant and his co-conspirators robbed the PW1 of the sum of N365,000,00.00 in a polythene bag kept inside her vehicle and contended that their testimony was not shaken during cross examination by the appellant and same remained unchallenged. He referred to Exhibit B, the confessional statement of the appellant and submitted that it is the law that the Court can convict an accused person on his confessional statement alone. However, the law enjoins the Court to subject such confessional statement to a test of whether there is anything outside the confessional statement to show that it is true. Was there corroboration, and other conditions, to render the confessional statement credible? Learned counsel submitted that Exhibit B was found by the trial Court to have corroborated the testimony of PW1 & PW2 and concluded that the Prosecution actually proved its case beyond reasonable doubt, hence the trial Court rightly found the appellant guilty, and convicted him. He further submitted that the Court below rightly affirmed the conviction and sentence.
Learned counsel contended that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. He relied on Nwaturuocha Vs The State (2011) 12 SCM (Pt. 2) 285 at 269, Ugo Vs COP (1997) 11 SC 37, Ameh Vs The State (1978) 6-7 SC 27; Dibie Vs The State (2007)SC 101 at 118-119. He submitted that based on the overwhelming evidence on record, the prosecution discharged the burden of proof placed on it by law, and has proved the case beyond reasonable doubt. He urged the Court not to disturb the concurrent findings of facts of both Courts below as they are based on sound legal principles. He relied on Ochiba vs The State (2011) 12 SCM (Pt. 2) 284 at 289. He urged the Court to hold that the Court below rightly affirmed the decision of the trial Court hence the appeal should be dismissed and the conviction and sentence of the appellant affirmed.
Since the appellant had abandoned issue No.3 distilled from his ground 5 of the Grounds of Appeal and same had been struck out along with his arguments, it is not necessary to further consider any argument of the respondent on its third issue.
As earlier stated, the appellant and one other were charged with the offences of conspiracy to commit robbery and armed robbery. They were however found guilty of conspiracy and robbery and were accordingly convicted for the lesser offence by the trial Court. The Court below found the appeal of the instant appellant unmeritorious, hence the conviction and sentence were affirmed.
Generally, conspiracy is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however, a matter of inference to be deduced from certain criminal acts of the parties accused, which were done in pursuance of an apparent criminal purpose in common between them which are hardly ever confined to one place. Therefore, being a separate and distinct offence in itself, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. It is independent of the actual offence conspired to commit. see; Kaza Vs. The State (2008) 5 SCM 70 (2008) 7 NWLR (pt.1085) 125; (2008) 1-6 SC 151; Balogun Vs. A.G Ogun State (2002) 2 SC (Pt.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196. Folorunsho Alufohai Vs. The State (2014) 12 SCM (Pt 2) 122; (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR Pt.765) 198.
On record, the trial Court had found that under cross examination, the appellant, as 2nd accused, the 1st accused and the Police Officer were together on the day of the incident. Indeed, the appellant confirmed that the police officer used his Identity Card to flag down the PW1’s bus being driven by PW2. The trial Court had further found as follows:
“The extra judicial Statements of both accused and their oral evidence in Court really confirmed and corroborated the critical aspects of the prosecution’s case namely
(i) That the accused persons and one Lanre Ogunlana, now at large, set out from Sango on an illicit adventure on the day in question.
(ii) That in the course of their journey to Sango from Owode Yewa, along ldiroko Road, the accused persons, driving a Nissan Bluebird car overtook and intercepted the PW1’s bus and forced the driver to stop impersonating to be police man on patrol duty.
(iii) That after their encounter with the PW1 and her people, the accused persons drove towards Agbara direction in order to escape after the operation.

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(iv) That at least one of the accused persons produced a Nigerian Police l.D. card as a camouflage for the nefarious operation.
(v) That the accused persons operated in a Nissan Bluebird car on the day of the operation as alleged by the prosecution.
(vi) That the two accused persons were arrested in a village along Agbara Road on the same day while the 3rd member of their group escaped.
(vii) That the accused persons volunteered the confessional statements marked as Exhibits A, A2, B and B2.” See pages 57-58 of the record.
Upon review of the totality of the evidence adduced by the prosecution, the trial Court was satisfied that the prosecution proved the two counts of conspiracy to rob and robbery simpliciter but not armed robbery. Accordingly, the appellant and his co-accused were convicted and sentenced to 14 years and 21 years imprisonment with hard labour respectively, with the sentences to run concurrently.
In its concurrent findings of fact, the Court below on page 163 of the record, stated as follows:
“In Exhibit B, which was admitted without objection, the appellant without any prevarication stated that he, his co-accused and one other who is at large were in the habit of impersonating as Policemen in order to unlawfully dispossess travelers of their money. He also narrated how they in concert with those persons robbed the PW1 of her money and how he was arrested. His story agrees with that of his co-accused which was admitted as Exhibit A2.”

Upon the above, the Court below came to the conclusion that the trial Court was right when it relied on the appellant’s confessional statement in convicting him for the offence of conspiracy as charged. The conviction was affirmed by the Court below and rightly too. The appellant was properly found guilty of conspiracy with others to rob PW1 of her money kept in her car.
On the second leg of the charge, which is armed robbery, for the prosecution to succeed and obtain conviction of an accused at the trial, it needs to prove the following.
(a) That infact there was a robbery.
(b) That the robbery was an armed robbery and;
(c) That the accused person was the armed robber or one of the armed robbers.
See; Bozin Vs. State (1985) 2 NWLR (Pt.8) 465 at 467; Alabi Vs. State (1993) 7 NWLR (Pt.307) 551; Olayinka Vs State (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM, 193; Osetola & Anor Vs The State (2012) 17 NWLR (Pt.1329) 251 at 275 (2012) 12 SCM (Pt. 2) 347; (2012) 6 SC (Pt. 101) 148.
Upon review of the evidence adduced by the prosecution, the trial Court found that the prosecution proved beyond reasonable doubt that there was a robbery involving the PW1 and PW2 on 01/5/2008 and that the appellant and the co-accused were amongst the robbers who attacked both PW1 & PW2 on the day in question. What the trial Court found not proved was that the robbery was an armed robbery as alleged. The trial Court had found that the evidence of the two victims of the alleged crime was not in unison on the question of who pulled out the pistol on the day of the incident. While the PW1 said it was the 2nd accused, the PW2 said the one who drew the pistol was at large and not before the Court.
The trial Court further found, inter alia, as follows:
“The two accused persons denied carrying or holding a gun at the time of the robbery. The Court cannot pick and choose which one to accept on these two contradictory versions of the prosecution’s case on this issue….
In the circumstance, I hold that the prosecution has failed to prove that the robbery incidence (sic) of 1/5/2008 was an armed robbery…………..
In effect, in respect of count 2, the prosecution has established only the offence of robbery simpliciter and not armed robbery.”

See pages 58-59 of the record.
Relying on Section 11 of the Robbery and Firearms (Special Provisions) Act Cap R.11, LFN, 2004, the trial Court found that there was evidence before the Court, which he believed, that the appellant and his co-accused ordered the PW1 and others to lie down in their car in the course of the robbery operation, on the pain of severe danger to their persons for any act of defiance. Both PW1 and PW2 had no option but to obey the order. The trial Court then found that the offence of robbery was established. Hence, even though the charge was armed robbery, the trial Court convicted the appellant and the co-accused for a lesser offence of robbery. The appeal by the appellant to the Court below was found unmeritorious and was accordingly dismissed. The conviction and sentence were affirmed.

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There is no doubt that the available evidence on record supported the prosecution’s case, that there was a robbery incident involving the appellant and the co-accused. The Court below rightly concurred on the findings of fact on this. However, it must be understood that for the Court to convict an accused for a lesser offence than the charge, the following conditions must be fulfilled. Firstly, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same. Secondly, the evidence adduced and the facts found must be insufficient for the conviction in respect of the offence charged but at the same time support the lesser offence. See; Adebayo Adeyemi Vs The State (1991) 6 NWLR (Pt.195) 1; (1991) 7 SC (Pt.11); (1991) 7 SCNJ 131. In other words, it is trite law that before an accused can be convicted for a lesser offence than the one charged, the ingredients or elements of the offences charged and the lesser offence must be similar. Where there is no similarities in their elements or ingredients or circumstances of their commission, the Court may not be right in convicting for a lesser offence. And where it is done, such conviction will be liable to setting aside on appeal. See; The Nigerian Airforce Vs. Kamaldeen (2007) 7 NWLR (Pt.1032) 164; (2007) 164; (2007) 3 SCM 190; (2007) 3 SC (Pt.11) 131.
Robbery generally, is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used. See; Akeem Agboola Vs. The State (2013) 11 NWLR (pt.1366) 619; (2013) 8 SCM 157; (2013) All FWLR (Pt.704) 139; Idowu Okanlawon Vs. The State (2015) 9 SCM 159.
In the same vein, by Section 11 of the Robbery and Firearms (Special Provisions) Act (supra), robbery is defined as follows:
“Stealing anything and at immediately before or after the time of stealing it, using, or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
It is clear on the record and as found by the trial Court, that the appellant and his co-accused stole the money of PW1 under threat and intimidation. The offence of robbery was therefore established. There is no doubt, that the elements of the lesser offence of robbery is similar to that of the offence with which the accused were charged. Indeed, there was evidence that one of the accused persons was carrying a dangerous weapon. Whether it was the appellant or the other gang member at large, was irrelevant, as long as the appellant admitted that he was together with their gang member who escaped arrest but was said to have carried a pistol. However, the trial Court had found that it was not proved that the appellant carried a pistol and interestingly there was no cross-appeal by the respondent, therefore, the sleeping dog should be allowed to continue to rest and not woken up for any reason.
Before I finally conclude this judgment, it is important to look at what the learned counsel for the appellant called contradiction or discrepancies in the prosecution’s case. This led to the formulation of issue NO.1 in the appellant’s brief of argument – whether the contradiction in the evidence of the prosecution witnesses were not material.
It is already settled law that “two pieces of evidence contradict one another when they are by themselves inconsistent” and a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor difference in details. But minor discrepancies between a previous written statement and subsequent oral testimony do not destroy the credibility of witness. See; Ayo Gabriel Vs. The State (1989) 5 NWLR (Pt.457) 468 at 469; Jerry Ikuepenikan Vs. The State (2011) 2 NWLR (Pt. 1229) 449 at 454.It is also settled law that, it is not in all cases where there are discrepancies or contradictions in the prosecution’s case, that an accused person will be entitled to an acquittal. It is only when discrepancies or contradictions, are on material point or points in the prosecution’s case, which create some doubt that the accused person is entitled to benefit therefrom. See; John Agbo Vs. The State (2006) NWLR (Pt.977) 545; (2006) 1 SC (Pt.4) 73. Minor contradictions in the evidence of the prosecution witnesses cannot be fatal to the case of the prosecution. But convictions in respect of material contradictions in the evidence adduced by prosecution are unsafe and will be set aside. See; Akpnenva Vs. The State (1982) 4 SC 78; (1982) 13 NSCC 85; Nicholas Wankey Vs. The State(1993) 5 NWLR (pt. 292) 542; (1993) LPELR – 3470 (SC).

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It is however trite law that for any conflict, contradiction or mix-up in the evidence of the prosecution witnesses to be fatal to the case, the conflict or mix-up must be substantial and fundamental to the issues in question before the Court. See; Manshep Namsoh Vs The State (1993) 5 NWLR (Pt 292) 129; (1993) 6 SCNJ 55; (1993) LPELR – 1937 (SC). In this case, what the learned counsel for the appellant considered to be material contradiction in the testimony of prosecution witnesses relates to who actually, amongst the alleged gang of robbers, pulled out the pistol and pointed same at their victims. This, with respect, is a misconception, to say the least. I am of the view that it will be most unreasonable and unsafe for someone being attacked by robbers to continue to look at the face of who holds the gun, to be able to identify him. Therefore, when one of the two prosecution witnesses stated that it was the appellant who pulled out the pistol and the other stated that it was the escapee member of the gang that pulled out the pistol, this cannot, in my view, be considered a material contradiction that goes to the root of the prosecution’s case. As I stated earlier, what was important was that there was threat of violence and intimidation by the accused and this was clearly found to be proved. Who exactly carried the dangerous weapon was not the main issue, but that violence was applied in dispossessing PW1 of her money found inside the vehicle when searched by the accused.
Similarly, as to where exactly the money was kept in the vehicle from where it was taken by the accused, it is also not material, as to adversely affect the case of the prosecution, that money was taken away by the appellant from the PW1’s vehicle upon the illegal search of the said vehicle. I therefore cannot see any material contradiction or discrepancy in the evidence of prosecution witnesses as to render the evidence unreliable, as contended by the learned appellant’s counsel. There is no reason to disturb the concurrent finding of facts by the two Courts below.
In the circumstance, the two issues raised are to be and are hereby resolved against the appellant.
The appellant was rightly convicted and properly sentenced for conspiracy to commit robbery and robbery.
Accordingly, this appeal is liable to dismissal and is hereby dismissed for lacking in merit. The appellant’s conviction and sentence by the trial Court which were affirmed by the Court below is hereby affirmed.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having had the advantage of reading in draft the lead judgment of my learned brother OLUKAYODE ARIWOOLA JSC just delivered, I agree with the reasoning and conclusion in the said lead judgment that this appeal being unmeritorious be dismissed.
The appellant, along with others, were convicted for conspiracy to commit robbery and robbery by the trial Court on the basis of the evidence of PW1 and PW2, victims of the offence, and his confessional statement. The lower Court on dismissing appellant’s appeal affirmed the trial Court’s findings of guilt of the appellant. The appellant has further appealed to this Court against the concurrent findings of the two Courts below.
It must be restated that appellant’s failure to challenge and contradict the credible evidence of PW1 and PW2 even in this Court leaves us, like the two Courts below, with no option than to believe that the evidence is true. The witnesses have inter-alia stated that the appellant and the others were pursued and apprehended so soon after the robbery. Further to the evidence, appellant’s extra judicial statement to the police is a confession admitted in evidence without objection.
It is trite that appellant’s confessional statement alone does ground his conviction. The law is that the appellant’s confession that is free, direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. See Idowu V. The State (2000) LPELR-1429 (SC), Solola & Anor V. The State (2005) LPELR-3101 (SC) and Asuquo Okon Asuquo V. The State (2016) LPELR-40597 (SC).
In the case at hand, more than appellant’s confessional statement, there is the unchallenged evidence of PW1 and PW2 which establish all the ingredients of the offence for which the two Courts convicted the appellant. These concurrent findings of the two Courts that arise from the evidence on record cannot be interfered with by this Court. See Omotola & Ors V. State (2009) LPELR-2563 (SC) and Musa V. State (2009) LPELR-1930 (SC).
It is for the foregoing and more so the fuller reasons marshaled out in the lead judgment that I also dismiss the

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unmeritorious appeal.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother OLUKAYODE ARIWOOLA. JSC just delivered. I agree with the reasoning and conclusion that this appeal lacks merit and should be dismissed.
Although charged with the offences of conspiracy to commit armed robbery and armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004, the appellant and his co-accused were eventually found guilty and convicted for the lesser offences of conspiracy to commit robbery and robbery by the trial Court, as the prosecution was unable to prove that they were armed during the commission of the offences. Their conviction and sentences were affirmed by the lower Court. In other words, there are concurrent findings of fact by the two lower Courts. It is not the practice of this Court to disturb concurrent findings unless such findings are shown to be perverse or some miscarriage of justice or some violation of principles of law or procedure is shown. See: Ogoala Vs The State (1991) 2 NWLR (ft. 175) 506; Kwajaffa & Ors Vs B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) 146; Akibu Vs Oduntan (2000) 7 SC (Pt. II) 106.

There was ample evidence adduced by the prosecution to prove beyond reasonable doubt that the appellant committed the crime. The evidence of the prosecution witnesses, particularly PW1 and PW2 who were victims of the crime, was direct, credible and unequivocal. They were not discredited under cross examination. The appellant made a confessional statement, which corroborated the evidence of PW1 and PW2. Furthermore, the unchallenged evidence before the Court was that the appellant and his co-accused were chased and caught immediately after the operation.
Learned counsel for the appellant was unable to show any material contradictions in the prosecution’s case to warrant interference by this Court. It is settled law that minor discrepancies in the evidence of prosecution witnesses, which do not go to the substance of the charge, cannot result in the conviction being set aside. See: Akindipe Vs The State (2012) 16 NWLR (Pt. 1325) 94; Asuquo Vs The State (2016) LPELR 40597 (SC) 1 @ 27-28 E-A Theophilus Vs The State (1996) LPELR – 3236 (SC) 1 @ 27 – 28 E – A.For instance, the slight discrepancy between PW1 and PW2 as to exact the location of the money kept in the bus, which was stolen in the course of the robbery is neither substantial nor fundamental. It was proved beyond reasonable doubt that the appellant stole the sum of N365,000 from them during the robbery operation.
The appellant’s confessional statement alone was sufficient to convict him. The two lower Courts, as is the practice, considered other facts outside the confessional statement before convicting and affirming the conviction of the appellant respectively.
The decisions have not been shown to be perverse. For these and the more detailed reasoning in the lead judgment, I find and hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the lower Court is affirmed.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Ariwoola, JSC, just delivered now. I entirely endorse the reasoning and conclusion that this appeal, being unmeritorious, should be dismissed.
In the first issue formulated for the determination of this appeal, the learned counsel for the appellant wondered whether the contradictions in the evidence of the Prosecution’s witnesses were not contradictory. In his submission, the witnesses contradicted themselves on the question who, amongst the alleged gang of robbers, pulled out the pistol and pointed same to their victims.
I agree with the leading judgment that the above submission is a misconception. With respect, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial, That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu (2004) 18 NWLR (pt 905) 362, 392; Emiator v

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State (1975) 9-10 SC 172; Ikemson v State (1989) 3 NWLR (pt 110) 455, 479; Afolalu v State [2009] 3 NWLR (pt 1127) 160.
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu v State (2003) 11 NWLR (pt 831) 327,341;Nasiru v. State (1999) 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu (2004) 18 NWLR (pt 905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State (1976) 6 SC 109; Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbi v State [2000] FWLR (pt. 3) 358; [2000] 3 NWLR (pt 648) 169.
It is for these, and the more elaborate reasons in the leading judgment that I too, hold that this appeal has no redeemable merit in it. I accordingly enter an order dismissing it. I abide by the consequential orders in the leading judgment.
EJEMBI EKO, J.S.C.: The Appellant and one other were charged and tried for the offences of conspiracy to commit robbery and armed robbery. They were tried and convicted for the offences under the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN 2004.
This appeal was argued on two issues, which in actuality are subsumed in the question: whether the guilt of the Appellant was proved beyond reasonable doubt to warrant his conviction and the sentence imposed him by the trial Court, which conviction and sentence were affirmed by the Court of Appeal. My learned brother, OLUKAYODE ARIWOOLA, JSC in the judgment just delivered, has resolved all the issues against the Appellant and affirmed his conviction and sentence. I hereby not only concur in the judgment, I also adopt it.
Appellant’s Counsel submits that there are contradictions between the PW.1 and PW.2 in the following two(2) areas. That is: between the Appellant and the Co-accused who actually pulled out the gun? The PW.1 stated on oath that the Appellant pulled out the gun. The PW.2, on the other hand, averred that it was the 3rd suspect, who escaped, that pulled out the gun. Secondly, that there was no certainty in the evidence as to which particular part of the bus the subject money was stolen from by the accused persons. The PW.1, he submits, testified that the money was found by the robbers from beneath the glove compartment of the bus in the leg space and under the carpet. On the other hand, it is the evidence of the PW.2 that the money was found under the dash board of the bus.
Upon my painstaking appraisal of the evidence of the PW.1 and PW.2, I ask the following pertinent questions –
i. There being unison in the evidence of the two witnesses that a gun was actually pulled out. ls it not asking for mathematical precision as to who actually, among the robbers, pulled out the gun? The bottomline is that a gun was displayed in the course of the robbery. That was not controverted; and
ii. Is it not a mere discrepancy, over minute details, in the insistence that “the glove compartment in the leg space” is a contradiction of another fact to the effect that the subject money was found and stolen from under the dash board of the same bus? These are mere discrepancies that did no violence to, or brought about any material contradiction in the case of the prosecution. The crux of the matter, or the bottom line, is that the subject money was stolen at the material time from the bus. The semantics, not withstanding; the fact that the money was stolen from the bus remains uncontradicted.

The Appellant has not shown in what way these so-called contradictions between the PW.1 and PW.2 had materially done violence to the substance of the charge defended by him. The core issue is that money was allegedly stolen from the PW.1 at the time the accused persons were brandishing a weapon. The Appellant’s Counsel has not shown in what way the alleged inconsistencies had caused miscarriage of justice to the Appellant.
The presumption therefore enures in favour of the Courts below being correct in their concurrent judgments. This is what Section 168(1) of the Evidence Act, 2011 is all about. Any judicial act shown to have been done in a manner substantially regular is presumed to be correct.

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I notice the learned trial Judge did not convict the Appellant for armed robbery. Rather he decided to convict the Appellant for robbery simpliciter. Evidence on the printed Record supports his findings of fact, which were affirmed by the Court of Appeal. These findings being amply supported by evidence in the printed record; the findings cannot, by any means, be said to be perverse, unreasonable and tantamounting to miscarriage of justice to the Appellant.
The presumption, strengthened by Section 168(1) of the Evidence Act, 2011, is that on facts, the findings are correct and the Respondent is entitled to an order dismissing the appeal unless the Appellant establishes some special circumstances justifying a departure from that practice. This Court will not lightly interfere with concurrent judgments on facts.
The Appellant’s Counsel submits that the offence of robbery was not proved and further that it follows that the offence of conspiracy to commit robbery was similarly not proved. He submits, albeit erroneously, that “where the substantive offence has not been proved then conspiracy cannot stand.” Agreement to commit an offence is what constitutes the offence of conspiracy which is independent of the substantive offence agreed to be committed. In this robust submission, the Appellant’s Counsel has actually misconceived the statement of law by the Court of Appeal in Abioye v. The State (1987) 2 N.W.L.R. (pt. 58) 645. At page 654 of the report, Akpata, JCA (as he then was) re-stating the law correctly had this to say
“I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy. (See OGBOZOR V. IGP (1964) 1 All N.L.R.9). In the case of R v. Cooper and Compton (supra) (1947) 2 All E.R 701) at page 704 the Court of Appeal in England made it patently clear that “in a great many cases there is no doubt that a verdict of guilty of the particular acts charged, is perfectly proper and a reasonable one.
In the instant case, on the facts, I have no difficulty agreeing with the two Courts below that both offences of conspiracy to commit robbery and the robbery had been committed and that the Appellant was properly convicted for both.
On issue 2, the Appellant’s Counsel submits: actual violence, being the necessary ingredient of robbery, must be proved in order that conviction for robbery could be sustained. Again, the learned Counsel got it all wrong. To prove robbery, it suffices if the prosecution proves either actual violence or threat “to use actual violence to any person or property in order to retain the thing stolen or to prevent or overcome resistance to its being stolen or restrained.” The restrictive interpretation of the definition of robbery as contained in Section 15 of the Robbery and Firearms (Special Provisions) Act proposed by the Appellant’s Counsel is not correct. The interpretation by Tsammani, JCA, who read the lead judgment, the subject of this further appeal, is the better and the more preferable interpretation of Section 15, specifically of the definition of robbery under the Act.
The Appellant has not shown any good cause why this Court should interfere with the concurrent judgments of the two Courts below. Appeal lacks merits and it is hereby dismissed. The judgment of the Court of Appeal affirming the conviction and sentence of the Appellant imposed by the trial Court is hereby affirmed. Appeal dismissed.

Appearances

Oladipo Olasope, Esq. –For Appellant

AND

Henry Eshijonam Omu, Esq. –For Respondent

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