AMEH V. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 11th day of May, 2018

SC.500/2015

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

FRIDAY AMEH  Appellants

AND

THE STATE  Respondents

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JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Abuja, delivered on 26th June, 2015 wherein the lower Court affirmed the judgment of the Kogi State High Court sitting at Ankpa. The appellant and others were charged with criminal conspiracy, voluntarily causing hurt to extort property and Armed Robbery under Sections 97(1), 298 ( c) 250 (2) of the Penal Coderespectively for which the Court below affirmed the conviction and sentence of the appellant to 5 years imprisonment for the offence of conspiracy, 7 years imprisonment for the offence of voluntarily causing hurt to extort property and 15 years imprisonment for Armed Robbery earlier entered by the Trial High Court. A synopsis of the facts giving birth to the appeal will suffice.It is the case of the prosecution that the accused person and others broke into the apartment of PW1 on 3rd August, 2012 at about 2.00 a.m and inflicted injuries on her head, neck, arm and leg and robbed her of the sum of Thirty Thousand Naira. PW1 identified the appellant as her nephew and the other accused person as his friend.
PW2 is the Police Officer at Ankpa when the case of armed robbery was lodged. He took pictures of the victim while she was at the hospital and later arrested the accused persons including the appellant on a tip off. PW3 received the case from Ankpa to the State C.I.D at Lokoja and he also obtained the confessional statement of the accused person.
The Appellant who testified as DW1, told the trial Court that before his detention, he was living at Inye and that he is both an applicant and a farmer. He stated further that he did not know the other accused person until after his arrest on the 11th of August, 2012, when he was informed that he and others robbed Mrs. Elizabeth Wada on the 3rd of August 2012. According to him, on the date of the said robbery, he was away at Mubi in Adamawa State and only returned to Inye on the 6th of August, 2012. He stated under cross examination that a document was brought to him at the State C.I.D. Lokoja and he was asked to sign it. He stated that he did not get to read the document and that he knew Mrs. Elizabeth Wada and even visited her at the hospital.
At the close of evidence, counsel for both parties filed and exchanged written addresses. In a considered judgment delivered on the 18th of September, 2013, the learned trial judge convicted the accused persons for the three offences charged.
At pages 71 – 72 of the Record of Appeal, the Trial Court held as follows:
“In conclusion, I hold that the prosecution has proved the offences of criminal conspiracy, armed robbery and voluntarily causing hurt to extort property punishable under Sections 97(1), 298(c) and 250 (2) respectively of the Penal Code beyond reasonable doubt against the accused persons. In consequence, I convict both accused persons for the three offences For the offence of criminal conspiracy, I sentence the convicts, i.e. Friday Ameh and Edinoh James to five years imprisonment each. For the offence of voluntarily causing hurt to extort property to seven years imprisonment each and for the offence of armed robbery, I sentence Friday Ameh and Edinoh James to Fifteen years imprisonment. The sentences shall run concurrently.” 
Aggrieved by the above decision, the Appellant appealed to the Court of Appeal, Abuja. On the 26th day of June, 2015, the lower Court delivered its judgment dismissing the appellant’s appeal and affirmed the judgment of the trial High Court.
Further dissatisfied with the judgment of the lower Court, the appellant has appealed to this Court. Appellant filed notice and grounds of appeal on 6th July, 2015. There are five grounds of appeal in all out of which the appellant has distilled five issues for the determination of this appeal.
At the hearing of this appeal on 15th February, 2018, the learned counsel for appellant, J. O. Adele, Esq., leading other counsel, identified and adopted the appellant’s brief of argument which he filed on 29th July, 2015. On page six to eight of the said brief, contain the five issues formulated by the appellant as follows:
1. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they held the opinion the (sic) since the Appellant Counsel raised the issue of competence of the charge of the address stage, there is no evidence on record that the Appellant was never misled as to the charge he was facing and was tried of which there was no miscarriage of justice occasioned as a result of the said charged (sic) nor was there any violation of any principle of law and practice. 

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2. Whether the learned Justices of the Court, of Appeal, Abuja were legally right when they formed the opinion that upon a careful perusal of the confessional statement i.e. Exhibit P2 and the evidence of PW1, clearly shows that some of the contents of Exhibit P2 were corroborated by the evidence of PW1 and that the confessional statement met with the necessary criteria for the ascription of probative value by the Court since the evidence of PW1 have sufficiently corroborated the confessional statement of the Appellant for which the learned trial judge rightly relied on Exhibit P2 in arriving at their decision. 
3. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they formed the opinion and made findings/judgment to the effect that the respondent proved all the offences beyond reasonable doubt.
4. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they made a finding to the effect that they do not think that there is principle of law requiring the tendering of weapons of an alleged robbery to establish the guilt of the Appellant and that failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the Prosecution/Respondent.
5. Whether the Learned Justices of the Court of Appeal, Abuja were legally right when they made the opinion that medical evidence was not required in the charge of voluntary causing hurt to exhort property which culminated to this appeal because the Court can from the evidence adduced draw its inference in the absence of medical evidence as failure to produce medical evidence was purely inconsequential.

Also, in the Respondent’s brief settled by M. A. Okpanachi, Esq., and filed on 20th August, 2015 which was adopted on the date of hearing alluded to above, four issues are formulated for hearing. They are akin to the appellant’s issues but couched differently as follows:
1. Whether the learned Justices of the Court of Appeal were legally right in holding that no miscarriage of justice was occasioned by the charge drafted and signed by two different officers of the chambers of the Attorney General of Kogi State.
2. Whether the learned Justices of the Court of Appeal were legally right to hold that Exhibit P2 satisfied the 
necessary legal requirement for ascription of probative value.
3. Whether the learned Justices of the Court of Appeal were legally right in holding that the prosecution had proved its case against the appellant beyond reasonable doubt.
4. Whether the learned Justices of the Court of Appeal were legally right in holding that the non tendering of the weapons of offence and medical evidence was not prejudicial to the case of the prosecution.

Having regard to the grounds of appeal in this case, it seems to me that the four issues as couched by the respondent are more apt, succinct, and bring out the real complaint of the appellant in the appeal. I shall adopt the four issues by the Respondent in determining this appeal. Appellant’s issues four and five are fused into one issue, i.e. issue 4 by the Respondent. Both shall be treated as one issue.
ISSUE ONE:
On the 1st issue, the learned counsel for the appellant submitted that any objection in relation to the features in the charge or the condition precedent which must be fulfilled such as the appropriate legal officer which will draft the charge should sign same, should have been satisfied/or complied with before the charge is read in Court at the trial High Court, Ankpa which was not the case in this matter because the legal officer who drafted the charge did not sign same. According to him, this is an issue which affects the trial Court’s substantive jurisdiction to entertain the matter which is fundamental in law and can be raised at any stage of the proceedings which includes an address stage, relying on Egunjobi v. FRN (2013) 21 WRN p.9 at 24. 
Learned counsel stressed that the lower Court misconceived the law to have held that the appellant was not misled as to the charge he was facing and was tried when the trial High Court had no jurisdiction to have entertained the said charge, and also to have tried the appellant in respect of the said charge in the first instance. Learned Counsel submitted further that for a different person to sign the charge other than the person who preferred same, is not a mere irregularity but a fundamental irregularity which cannot be waived because the condition precedent to invoke the jurisdiction of the trial Court had not been fulfilled, relying on Mark v. Eke (2005) FWLR (pt. 259) 1, Elelu – Habeeb v.

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Attorney General of the Federation (2012) All FWLR (Pt. 629) 1011 at 1017. He urged the Court to resolve the issue in favour of the appellant.
In response, the learned counsel for the respondent submitted that while it is not in dispute that the officer who drafted the application is different from the one that signed the charges to which the appellant gave his plea and was subsequently tried upon it, it is also not in dispute that both officers i.e. Deborah Ajayi and G.P Olorunde are both legal officers in the chambers of the Attorney General of Kogi State. Making reference to Section 211(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) learned counsel submitted that both officers were legally competent to draft and sign the charges and as such each was competent to do so, also relying on Unipetrol PLC v. Edo State Board of Internal Revenue (2001) 10 NWLR (pt. 920) 167 CA, Mike Amadi v. FRN (2008) 12 KLR (pt.259) 3401 at 3401.

Learned Counsel opined that the trial of the appellant before the High Court was initiated through due process of law as provided under Section 185(b) of the Criminal Procedure Code.
According to him, at most the event of one officer drafting the application to proffer a charge and another officer signing the charge amount to a mere irregularity in procedure which cannot be used to defeat the ends of justice. He stressed that objection to a charge ought to be taken timeously, and not at the address stage, relying on Agbo v. State (2006) 6 NWLR (pt. 977) 545, Ohwovoriole v. FRN (2001) 13 NWLR (pt. 730) 428.

It is further contended that for any objection on irregularity in procedure or defect in the charge to succeed, the appellant must show that it led to a miscarriage of justice which the appellant herein failed to do, citing the case of Okorah v. The State (1990) 1 NWLR (pt.130) 140, Essien v. COP (1996) 5 NWLR (pt. 449) 489 at 500. Not having been shown that the appellant was misled or prejudiced, learned counsel submitted that the lower Court was right to hold that the charge was properly laid before the trial Court to vest it with jurisdiction to entertain the case. He urged the Court to resolve this issue against the appellant.
The main grouse of the appellant in this issue is that whereas Mrs. Deborah Ajayi drafted the application to proffer charge against the appellant, the charge which was eventually drafted was signed by G.P. Olorunde, Esq., both law officers in the chambers of the Hon. Attorney General of Kogi State. This complaint or objection by the learned counsel for the appellant was not taken at the stage when plea was taken. It was however taken in the address of counsel after plea had been taken and evidence obtained from both parties. By Section 211(1) of the 1999 Constitution of the FRN (as amended), the Attorney General of a State is empowered to institute and undertake criminal proceedings against any person before any Court of law, amongst other duties. And by Subsection 2 thereof, the power conferred on the Attorney General of a State under Subsection one (1) may be exercised “by him in person or through officers of his department”.
Both counsel agree that the two law officers are officers in the chambers of the Attorney General of Kogi State. I have no doubt whatsoever that either of them was legally qualified to initiate the proceedings or sign the charge. See FRN v. Adewunmi (2007) 10 NWLR (pt. 1042) 399. Also relying on this authority, the Court below held on page 136 of the record as follows:
“It is not in doubt that in the instant case, the application for leave was brought by one Deborah Ajayi (Mrs.) and signed by one G.P. Olorunnuhe Esq., both Legal Officers in the of/ice of the Attorney General of Kogi State.
On the strength of the above cited Supreme Court authority, I hold the view that the charge in the instant case, is properly laid before the Trial Court to vest it with the jurisdiction to entertain the case. What is more, the Appellant has not cited any legal authority challenging the validity of the charge because it was proffered and signed by different persons in the office of the Attorney General.”
I agree entirely with the position taken by the Court below in this matter. My reason is not far-fetched. Where one counsel in the office of the Attorney General has drafted an application for leave to proffer a charge against an accused person but before the charge is filed, the said counsel is either indisposed or has gone on leave or some other unforeseen incidents occur, will it be reasonable to put the process in the cooler pending when that officer will resume duties whereas there are other competent officers in the Ministry? I do not think that is the way to go. There is

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nothing legally wrong with the signing of the charge by G. P. Olorunnuhe, Esq., though it was drafted by his colleague Mrs. Deborah Ajayi, the two of them being law officers in the chambers of the Attorney-General Kogi State.
Notwithstanding the above scenario, the appellant did not challenge the competence of the charge when or before plea was taken. The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, inAdio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows:
“The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). Similarly a want of jurisdiction which ordinarily could be raised at any stage of the trial is better raised before plea is taken. See R V. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (See S.218 Criminal Procedure Act, Cap 43). This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – See R. V. Hayes (1951) I K.B. 94.
See also Attah v. The state (2010) LPELR – 597(SC), Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717.
The law is trite that a convict cannot hang on mere irregularity of Procedure (if any) to gain acquittal unless he can show that such irregularities in procedure led to substantial miscarriage of justice. The Court below held this much. Miscarriage of justice simply means justice miscarried or failure of justice. In Gbadamosi v. Dairo (2007) LPELR – 1315 (SC) at pp.23 23 – 24 paras G -8, this Court defines miscarriage of justice as follows:
“Miscarriage of Justice connotes decision or outcome of legal proceeding that is prejudiced or inconsistent with the substantial rights of the party. Miscarriage of Justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the injustice has been miscarried.”
As was rightly held by the Court below, the appellant herein has failed to show how he was cheated in the proceedings. The Appellant had a duty to show how the charge signed by a person who did not file the application to file the information has affected him. He had the onerous duty to show that had the charge been signed by the particular person who filed the application, the result would have been different. This he failed to do.
Let me make one last sentence in respect of this issue before I end it. There is no doubt that issue of jurisdiction is a threshold issue. It is so fundamental that the absence of it would rob the Court of the power to hear and determine a matter. It can be raised at the trial Court, Court of Appeal or even in this Court for the first time.
See Elelu – Habeeb v. Attorney General of Federation v. Ors (2012) 13 NWLR (pt.1318) 423; Madukolu v. Nkemdilim (1962) 2 SC NLR, 341, Odofin v. Agu (1992) 3 NWLR (pt. 329) 350. Section 167 of the Criminal Procedure Act provides that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. This provision is mandatory in view of the word “shall” used in the provision that connotes mandatoriness. See Tabik Invest. Ltd & Anor v. GTB PLC (2011) 17 NWLR (pt.1276) 240, Umeanadu v. Attorney General Anambra State & Anor (2008) 9 NWLR (pt. 1091) 175. Therefore, where a party fails to object to any formal defect on the face of the charge immediately after the charge has been read to the accused person, and takes part in the hearing of the case to conclusion, he is deemed to have forfeited that right to object. The appellant herein, having failed to comply with Section 167 of the Criminal Procedure Act before the trial Court, sought to invoke issue of jurisdiction which does not avail him as the Court below held clearly that G.P Olorunnuhe Esq., was in as good position as Mrs. Deborah Ajayi to sign the charge, both being law officers in the chambers of the Attorney General of Kogi State. This issue does not avail the appellant at all. I accordingly resolve this issue against the appellant.
ISSUE TWO:
Issue two, basically is whether the evidence of PW1 corroborated Exhibit P2, the confessional Statement of the appellant. It is the contention of the learned counsel for the appellant that the Court below was wrong to hold that the criteria for

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the ascription of probative value to the evidence was met by the trial High Court vis – a- vis the confessional statement of the appellant which was retracted by the appellant, relying on the case of Akinmoju v. The State (2002) 4-6 SCNQR page 90. It is his view that all the required legal test in respect of Exhibit P2 were not satisfied by the trial high Court yet the Court below relied on same to affirm the conviction of the appellant. He urged this Court to resolve this issue in favour of the appellant.
In response, the learned counsel for the respondent drew the attention of this Court to the judgment of the Court below particularly pp.145 – 152 of the record to show how the Court below compared Exhibit P2 with the evidence of PW1 before agreeing with the learned trial judge who also did the same exercise on pages 63 – 67 of the record. That it was after such comparison that the Court below held that the evidence of PW1 provided sufficient corroboration to Exhibit P2. He submitted that a retracted confessional statement is admissible pending the probative value that can be accorded it. Learned Counsel concluded that both the trial Court and the Court below satisfied the requirement of the law relating to corroboration of a retracted confessional statement, he relies on Ubierho v. The State (2005) 5 NWLR (pt. 909) 604, Solola v. The State (2005) 11 NWLR (pt. 937) 460. He concluded that mere retraction of a statement by an accused is not enough. That where it is proved that other evidence outside the statement pins him to the offence, a Court would be justified to convict, relying on Madjemu v. The State (2001) 9 NWLR (pt.718) 349. He urged this Court to resolve this issue against the appellant.
Evidence shows that the Appellant made a confessional statement which was admitted by the Trial Court and marked Exhibit P2.
However, at the trial Court, the appellant denied and/or retracted the said statement. The learned trial judge made the following findings on the issue on pages 65 – 66 of the record thus:
“The prosecution also tendered Exhibits P1 and P2 which are alleged to have been made by the accused persons. In their evidence in Court, both accused persons retracted the statements. I am required by law to see if there is any evidence outside the statements to show that the accused persons actually made the statements. The victim of the robbery, PW1 stated categorically that the accused persons were well known to her before the incident. Indeed, the first accused corroborated her evidence that they are relations. She also stated that the second accused is the friend of the first accused and that they all live in Inye. Let me also take a look at his evidence before me. He gave his father’s name as Mr. James Salifu Ameh. That is the name contained in Exhibit P2 as his father’s name. I am satisfied that the first accused person actually made Exhibit P2. The evidence of PW1, that the accused is well know (sic) to her was amply corroborated by the first accused who maintained that they are indeed related by blood.”
Again, the Court of Appeal, after a careful consideration of the retracted confessional statement and the evidence led by the prosecution, has this to say on page 150 of the record:
“A careful perusal of the confessional statement the Exhibit P2 and the evidence of PW1, reproduced above clearly show that some of the contents of Exhibit P2 were corroborated by the evidence of PW1. First of all, the Appellant is a relation, and the second accused is his friend. Secondly, the second accused inflicted injuries on PW1 by cutting her on her head. Finally, the amount taken is the same i.e. Thirty Thousand Naira. All these pieces of evidence amongst others convinced the Trial Judge of the truthfulness of the confessional statements. I find therefore that the overall evidence adduced at the trial confirms that there were ample evidence outside Exhibit P2 to test its truthfulness and to sustain its reliance by the Trial Judge. I agree completely with the Trial Judge that the confessional statement met with the necessary criteria for the ascription of probative value by the Court, the evidence of PW1, having sufficiently corroborated the confessional statement of the Appellant.”
I must say that I am satisfied with the position taken by the two Courts below. It is trite that an accused person may be convicted on his confessional statement even if retracted. However, the Court is expected to look for evidence outside the confessional statement no matter how slight tending to show that the accused committed the offence. The term ‘retraction’ means the act of taking or drawing back; the act of recanting or withdrawing (of something e.g. statement)

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See Black’s Law Dictionary 9th Edition 2009 at 1431. Both the trial Court and the Court of Appeal have found, quite admirably that the appellant was not convicted on his retracted confessional statement alone. They looked outside the confessional statement (Exhibits P2), and found evidence of PW1, agreeing in all material particular with the said confessional statement as I have reproduced above.
I am satisfied that the Court of Appeal was right to uphold the decision of the learned Trial Judge on the issue. See The State v. Gwangwan (2015) LPELR – (sc), Solola & Anor v. The State (2005) 11 NWLR (pt. 937) 460, Nwaeze v. The State (1996) 2 NWLR (pt. 428) 1 at 13. Simon v. The State (2017) LPELR-41988 (SC).
All I have endeavoured to say above is that a confessional statement that is so amply corroborated in every material particular, such as the one in hand and which is found to be free and voluntary, is admissible in evidence regardless of the fact that it was retracted by the maker. See FRN v. Iweka (2013) 3 NWLR (pt. 1341) 285, Okpo v. The State (1972) NSCC Vol.7, 104, Ogudo v. The State (2011) 12 SC (pt.1) p.71. In the instant case, the evidence of PW1 clearly corroborated the contents of Exhibit P2, the Confessional Statement of the Appellant. I resolve this issue against the appellant.
ISSUE 3. 
This issue is whether the prosecution proved its case beyond reasonable doubt against the appellant. I need to reiterate the trite principle of law that 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.
See Nwaturuocha v. The State (2011) 2-3 SC (pt.1) p.III, Lori & Anor v. State (1990) 12 NSCC p.269, Smart v. The State (2016) 1-2 SC. (pt. II) p.41, (2016) 9 NWLR (pt. 1518) 447, Oseni v. The State (2012) 5 NWLR (pt.1293) 351.
In the instant appeal, the learned counsel for the appellant submitted that the Court below was wrong to hold that the prosecution proved all the essential ingredients of the offences charged. Unfortunately, the learned counsel did not mention even one of the ingredients of the offence not proved. It is not enough to make an allegation or assertion, the person making an assertion must prove. Appellant’s argument on this issue was at large. There are no specifics. That notwithstanding, the appellant made a confessional statement in this case which has been adjudged voluntary, admissible and reliable. By Section 28 of the Evidence Act 2011, 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. Confessions, if voluntary, are deemed to be relevant facts as against the persons who made them only.
Thus, the appellant, having admitted in Exhibit P2 that he committed the offence charged, is not serious when he argued that the offences were not proved beyond reasonable doubt.
Apart from the statement of the appellant, PW1 told the Court that the appellant is related to her by blood and that she knew him long before the commission of the crime. She even knew the co-accused of the appellant who she described as a friend of the appellant. She graphically narrated how the appellant ordered his co-accused to inflict injuries on her and thereafter stole her Thirty Thousand Naira. Appellant confirmed this in his extra-judicial statement. There is clear evidence that there was hurt on PW1, there was extortion and both acts were carried out by the appellant voluntarily. More so, there was robbery on PW1, the robbers were armed with dangerous weapons and the appellant was certainly one of the robbers. I have no doubt in my mind that the prosecution proved its case against the appellant beyond reasonable doubt as affirmed by the Court below. Again, this issue is resolved against the appellant.
ISSUE 4:
This issue has to do with non tendering of weapon used in the robbery and medical report on the injuries inflicted on the PW1.
The appellant split this issue into issues 4 and. 5 while the Respondent put them together in its issue 4. I shall determine it as one issue.
It was submitted on behalf of the appellant that the Court below was legally wrong to hold that there is no principle of law requiring the tendering of weapons of an alleged robbery to establish the guilt of the appellant and that failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the Prosecution/Respondent. According to him, the prosecution is under a duty to explain why the weapon was not tendered especially where the weapon was recovered. Based on the above, learned counsel urged the Court to hold that the failure to tender the weapon was fatal to the

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prosecution’s case, relying on Abdullahi v. State (2008) 48 WRN page 1, Ochemaje v. State (2005) 45 WRN p.1.

On the non tendering of medical report, learned counsel submitted that the Court below misconceived the law when it affirmed the judgment of the trial Court for the offence of voluntary causing hurt to extort property under Section 250(2) of the Penal Code in the absence of medical report which ought to have shown the nature, location and the cause of the injury meted to the victim in this case. He urged the Court to resolve this issue in favour of the appellant.
In response, the learned counsel for the Respondent submitted that the tendering of weapons of offence is not a pre-requisite for proving an offence where there are sufficient evidence in the testimony of witnesses to draw inference, relying on State v. Usman (2007) 5 ACLR 34. Learned counsel stressed that the evidence of PW1 regarding how she was numerously cut was uncontroverted and unassailable even under cross-examination. That the use of weapon by the appellant was repeatedly referred to in PW’s evidence before the trial Court and even in the appellant’s statement in Exhibit P2. He opined that any evidence in support of an issue not challenged ought to be believed and acted upon, citing the case of Ikuomola v. Oniwaya (1990) 4 NWLR (pt. 146) 617 at 624 in support.
On medical evidence, the learned counsel submitted that there is no dispute that PW1 was cut and injured severally and that she was hospitalized for eleven days. That it is ridiculous to want to rely on medical evidence to establish the nature or location of the injuries when already the PW1 said she sustained the said injuries or hurt inflicted on her by the appellant. He concluded that the Court below was right to hold that the viva voce evidence led by the prosecution in Court was enough to establish the cause of the injuries without the necessity for medical evidence. He urged the Court to resolve the issue against the appellant.
The law is trite that to secure a conviction in a charge of armed robbery against an accused person, the prosecution must prove that
(1). There was a robbery, or series of Robberies.
(2). That the accused person or persons were armed with offensive weapons.
(3). That the accused person participated or was one of the robbers.

Once the above ingredients are proved, the trial Court is well positioned to convict on the evidence available. As was stated by this Court in James Simon v. The State (2017) LPELR – 41988 (SC), there is nowhere in the law that the prosecution must tender weapons used in a robbery attack before an accused person can be convicted. That is not to say that the weapons, if recovered, cannot be tendered.
It can be tendered but where it is not tendered, it cannot be a ground to set aside a conviction arising from such evidence.
In The State v. Odunayo Ajayi (2016) LPELR-40663 (SC), I made the point that once there is cogent, reliable and authentic oral and documentary evidence which the Court admits and believes, failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the prosecution. See also Gbadamosi v. The State(1991) 6 NWLR (pt. 196) 182, Olayinka v. The State (2007) 9 NWLR (pt. 1040) 561, Agugua v. The State (2017), LPELR-42021 (SC).
My Lords, all I have said above go to show that the Court below was right to affirm the judgment of the trial Court on the issue that failure to tender the weapon of the robbery did not vitiate the conviction and sentence of the appellant herein.
Also, in respect of non tendering of medical report to show the nature of injuries inflicted on the PW1 by the appellant and his cohorts, I must say that even in murder trial, tendering of medical report is not a sine qua non to the proof of the charge against an accused person. In the instant case, the PW1 gave evidence of the several cuts inflicted on her by the appellant which took her to the hospital where she spent eleven days for treatment. In Exhibit P2, the appellant stated clearly that the PW1 was inflicted with injuries. If I may ask, what was medical report intended to prove in the face of abundant and uncontroverted evidence before the Court? I am in total agreement with the Court below that failure to tender medical report is not cancerous to the conviction and sentence of the appellant by the learned trial judge as affirmed by the Court below. See Onwumere v. The State(1991) 4 NWLR (pt.186) 428, Bille v. The State (2016) LPELR-40832 (SC), Popoola v. The State (2013) LPELR- 20973 (SC), Galadima v. The State (2017) LPELR-41911 (SC).

It is very clear from the authorities of this Court cited above that tendering of both weapons used in an armed robbery

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attack and medical report to show injury inflicted on a person are not indispensable in proof of each offence respectively. Where the weapon or medical report is available, tendering same would not make any difference where there is no cogent, reliable and authentic evidence to link the accused person with the offence.
There must be credible evidence linking the accused person with the offence committed before the weapon or medical report cannot assist the case of prosecution. The appellant has again failed to reap from this issue as I resolve it against him.
Having resolved all the issues against the appellant, hold that there is no merit in this appeal and it is hereby dismissed. Consequently, the judgment of the Court of Appeal delivered on 26th June, 2015 which affirmed the judgment of the trial High Court is hereby affirmed. The conviction and sentence of the appellant is hereby further affirmed.
Appeal Dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I agree with the leading judgment which has just been delivered by my learned brother Okoro, JSC. Learned counsel for the appellant has been unable to satisfy this Court that concurrent findings of the Courts below were wrong. This Court found that concurrent findings of the Courts below were correct and the charges against the appellant were proved beyond reasonable doubt.
The conviction and sentence of the appellant is hereby further affirmed by this Court.
I too dismiss this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, John Inyang Okoro JSC who graciously made available to me the draft judgment in which he dismissed the appeal of the appellant. To register the support with the reasonings from which the decision came about, I shall make some remarks.
This is an appeal filed by the appellant against the decision of the Court of Appeal, Lower Court or Court below Abuja Division, (Coram: Abubakar Jega Abdulkadir, Abubakar Datti Yahaya and E. Ekanem JJCA) which affirmed the appellant’s conviction and sentence to 5 years imprisonment for the offence of conspiracy 7 years imprisonment for the offence of voluntarily causing hurt to extort property and 15 years imprisonment for the offence of armed robbery which were made by A. N. Awulu J of the Ankpa High Court of Kogi State.
The detailed facts are well captured in the lead judgment and no useful purpose would be achieved repeating them save for when the occasion demands a reference to any part thereof.
On the 15th day of February 2018 date of hearing, learned counsel for the appellant, J. O. Adele Esq., adopted the brief of argument filed on the 29/7/15, wherein were formulated the following issues for determination, viz:
(a) Whether the learned Justices of the Court of Appeal Abuja were legally right when they held the opinion that, since the appellant counsel raised the issue of competence of the charge at the address state, there is no evidence on record that the appellant was ever misled as to the charge he was facing and was tried of which there was no miscarriage of justice occasioned as a result of the said charge nor was there any violation of any principle of law and Practice.
(b) Whether the learned Justices of the Court of Appeal Abuja were legally right when they formed the opinion that upon a careful perusal of the confessional statement i.e Exhibit P2 and the evidence of PW1, clearly shows that some of the contents of Exhibit P2 were corroborated by the evidence of PW1 and that the confessional statement met with the necessary criteria for the ascription of probative value by the Court since the evidence of PW1 have sufficiently corroborated the learned trial judge rightly relied on 
Exhibit P2 in arriving at their decision.
(c) Whether the learned Justices of the Court of Appeal Abuja were legally right when they formed the opinion and made findings/judgment to the effect that the respondent had proved all the offences charged beyond reasonable doubt.
(d) Whether the learned Justices of the Court of Appeal Abuja were legally right when they made a finding to the effect that they do not think that there is any principle of law requiring the tendering of weapons of an alleged robbery to establish the guilt of the appellant and that failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the prosecution/respondent.
(e) Whether the learned justices of the Court of Appeal Abuja were legally right when they made the opinion that medical evidence was not required in the charge of voluntary causing hurt to extort property which culminated to this appeal because the Court can form the evidence adduced draw its inference in the absence of medical evidence as failure to produce medical evidence was purely inconsequential.

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Learned counsel for the respondent and Principal State Counsel of the Kogi State Ministry of Justice, M. A. Okpanachi adopted the brief of argument of the respondent and modified the issues raised by the appellant and thereafter adopted them to be thus:
1. Whether the learned justices of the Court of Appeal were legally right in holding that no miscarriage of justice was occasioned by the charge drafted and signed by two different officers of the chambers of the Attorney General of Kogi State.
2. Whether the learned Justices of the Court of Appeal were legally right to hold that Exhibit P2 satisfied the necessary legal requirement for ascription of probative value.
3. Whether the learned Justices of the Court of Appeal were legally right in holding that the prosecution had proved his case against the appellant beyond reasonable doubt.
4. Whether the learned Justices of the Court of Appeal were legally right in holding that the non tendering of the weapon of offence and medical evidence was not prejudicial to the case of the prosecution.

I shall make use of the Issues 1 and 3 of the respondent to answer all the questions raised in this appeal and into which all the issues are subsumed. 

ISSUES 1 AND 3:
1. Whether the learned Justices of the Court of Appeal were legally right in holding that no miscarriage of justice was occasioned by the charge drafted and signed by two different officers of the chambers of the Attorney General of Kogi State.
3. Whether the learned Justices of the Court of Appeal were legally right in holding that the prosecution had proved its case against the appellant beyond reasonable doubt.

Canvassing the stance of the appellant, learned counsel contended that his objection to the charge as fundamentally defective can be raised at any stage including the address point as is happening now since jurisdiction of the Ankpa High Court is at stake. He cited Egunjobi v FRN (2013) 21 WRN 9 at 24 25 and 41.

That they are strengthened in their view as the application for leave to prefer the charge was done by Mrs. Deborah Ajayi but another officer in the same Chambers of the Attorney General of Kogi State, precisely G, P. Oloniruha Esq., signed the charge. That the consequence is that the case was not initiated by due process of law and upon a fulfillment of a condition precedent to the exercise of jurisdiction which defect robbed the competence of the process and ousted the jurisdiction of the Court. He cited Mark v Eke (2005) FWLR (Pt. 259) 1; Elelu – Habeeb v A. G. Federation (2012) All FWLR (Pt. 629) 1011 at 1017.

Going on further, learned counsel for the appellant stated that the Court below was wrong to have come to the conclusion that some contents of the confessional statement, Exhibit P2 were corroborated by the evidence of PW1. He cited Akinmoju v State SCNJ April – June 2002 page 90 at 93 and 118.

That the required legal test for the admissibility of a confessional statement were not satisfied as the statement had been retracted by the appellant.
Learned counsel for the appellant further contended that the essential ingredients of the offences of armed robbery, criminal conspiracy and voluntarily causing hurt to extort property were not established or proved beyond reasonable doubt. He cited State v Azeez (2008) 4 SCNJ 325 at 332; Akinkunmi v State (1987) 35 SCNJ 30; Onuegbe v Queen (1957) SCNLR 30; Orepekan v Amadi (1993) 11 SCNJ 68.

Mr. Adele of counsel for the appellant submitted that the failure to tender the weapons used in the alleged offences was fatal to the case of the prosecution contrary to what the Court of Appeal held. He referred to Abdullahi v State (2008) 48 WRN 1; Ochemaje v State (2005) 45 WRN 1 at 9.

Learned counsel for the appellant went on to contend that the prosecution ought to have led evidence to tender a medical

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report to establish the cause of the injury on the victim and the failure to do so vitiated the case of the prosecution since doubts arose which should be resolved in favour of the appellant. He cited Ochemaje v State(supra) at page 9.

Responding for the respondent, Mr. Okpanachi contended that in the matter of the validity of the charge, what is important is if the officers who drafted and signed the charge were competent persons to so carry out those functions and since the answer is positive that is the end of the dispute in that regard. He cited Unipetrol Plc v Edo State Board of Internal Revenue (2001) 10 NWLR (Pt. 920) 167; Mike Amadi v FRN (2008) 12 KLR (Pt. 259) 3401 at 3410; Section 185(b) of the Criminal Procedure Code and Section 211 (2) of the Constitution of the Federal Republic of Nigeria 1999.
That this objection on the charge ought to have been raised timeously and so it is too late now even though appellant has clothed it under the guise of jurisdiction. He cited Agbo v State (2006) NWLR (Pt. 977) 545; Joshua v State (2000) 5 NWLR (Pt. 658) 591; Ohwovoriole v FRN (2001) 13 NWLR (Pt. 730) 428; Magaji v Nigeria Army (2008) 4 KLR (Pt. 251) 12749 at 1279 etc.

He stated on for the respondent that there was corroboration from the evidence of PW1 in relation to the confessional statement, Exhibit P2 and with the two Courts below so finding and no miscarriage of justice occasioned, this Court should not interfere. He cited Adekunle v State (2006) 5 LRCNCC 1; Jinadu v Esu Rombi-Aro(2009) 4 KLR (Pt. 265) 883; Ubierho v State (2005) 5 NWLR (Pt. 909) 604; Solola v State (2005) 11 NWLR (Pt.937) 460.

That the mere denial by the appellant of the statement is not enough to reject the statement where as is in this case other evidence outside of the statement pinned him to the offence. He cited Madjemu v State (2001) 9 NWLR (Pt. 718) 349.

For the respondent, it was contended that there was a surfeit of evidence from which the ingredients of the offences charged are seen to have been established beyond reasonable doubt, he referred to Akinyemi v State (2001) 2 ACLR 32; Olalekan v State (2001) 18 NWLR (Pt. 746) 713; Bolanle v State (2009) 2 KLR (Pt. 272) 2211.

Learned counsel for the respondent contended that it is not correct that the tendering of weapons of offence is a prerequisite for proving an offence. He cited State v Usman (2007) 5 ACLR 34; Ikuomola v Oniwaya (1990) 4 NWLR (Pt. 146) 617 at 624.

He stated further that it is incorrect that the failure to tender medical evidence would fatally affect a finding of injuries on the victim. He referred to Igago v State (2007) 2 ACLR 104.

The appellant had questioned the validity of the charge upon the fact that the application for the charge was made by an officer in the Attorney General’s office, Mrs. Deborah Ajayi while the Charge was signed by another legal officer in the same chambers, precisely G. P. Olorunhe. This argument of the appellant is not sustainable as the important point is that the process emanated from the Chambers of the Attorney General and it is not expected that one officer and he alone must initiate and sign the charge and where two officers or more are involved the charge is take to be defective. The view pushed forward by the appellant cannot be sustained since the vital issue is that the Attorney General Chambers is one, managed for the administration of justice by numerous officers whose acts in the chain are taken to be that of the Attorney General and no dichotomy or demarcation in functions is drawn as provided for in Section 211 (2) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN); Unipetrol Plc v Edo State Board of Internal Revenue (2001) 10 NWLR (Pt. 920) 167; Amadi v FRN (2008) 12 KLR (Pt.259) 34001 at 3410.

Also to be said is that this objection to the charge which appellant is clothing under jurisdiction is a concern that should have been raised timeously and not so far gone as this case where it is being raised at the counsel’s address. In fact the plea taking stage is most suitable. Placing a perceived irregularity to the level of a jurisdictional issue would not translate to a matter of jurisdiction being an issue that cannot go beyond an irregularity as it is not such under which the appellant can claim to have been deceived on what he is being called upon to defend.

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A follow up to the above is that the appellant having been represented by counsel from the beginning and the purported irregularity not brought up, it is taken that the appellant had consented to the procedure and cannot at the Supreme Court complain when nothing has been shown to give the semblance of a miscarriage of justice. See Joshua v State (2000) 5 NWLR (Pt. 658) 591; Ohwovoriole v FRN (2001) 13 NWLR (Pt. 730) 428 (CA); Magaji v Nigerian Army (2008) 3 KLR (Pt. 251) 1249 at 1279; Akpa v State (2008) 4 KLR (Pt.252) 1563 at 1583; Okoroah v State (1990) 1 NWLR (Pt.130) (ft.140 – 141); Essien v COP (1996) 5 NWLR (Pt.449) 500.

In respect to the matter of Exhibit P2, the confessional statement which went through the crucible of a trial within trial to ascertain its voluntariness before the Court of first instance admitted it even though the appellant resiled from the said statement which I shall quote hereunder, viz:
“…on 3/08/2012 at about 2:00 am I myself, Edinoh James, (2) Puppy, (3) Paul Tijani Ameh (4) Solomon James and two other invited boys from Ofejiji who I don’t know their names organized ourselves and proceeded to the house of Mrs. Elizabeth Wada. 
I was carrying iron rod, Edinoh James carried one single barrel gun and cutlass. The two boys invited by Edinoh James carried knives and the other one was carrying long iron pipe with welding arrow on it. When we got there, Edinoh used the cutlass in his hand to cut the woman on her head. It is true that we fired a gun shot but it was Edinoh James who did that. I know the house of Puppy (2) Paul Tijani Ameh and (3) Solomon James. We realized the sum of Thirty Thousand Naira N30,000.00 and two techno handsets. These are only items realized. After the robbery operation, we fled into the bush and since the community was looking for us, we couldn’t have the money, before I was arrested. Edinoh James used a white daylong motorcycle for the robbery operation. It is true that I have a misunderstanding with the compliant sometime ago. She also has a misunderstanding with Edinoh James. It was the grudges we have with her that constituted the robbery attack on her. It is also true that I gave Edinoh James a directive to hit the woman on her head..”
The second accused person, Edinoh James had this to say in his statement:
“…I know Mrs. Elizabeth Wada. We live together in the same village. I know Friday Ameh, he is my friend and we equally stay together. I also know Puppy (2) Paul Tijani (3) Solomon James and (4) Aboh surname unknown. They are also my friends in the same community. On 3/08/2012, at about 2:00 am Friday Ameh Alias Osaina invited me and the above mentioned boys to follow him to the house of one Elizabeth Wada. I was carrying Iron rod on the day we attacked Elizabeth while Friday Ameh carried a locally iron rod, cutlass and knife. On our arrival at the woman’s house, we pushed the door and Friday Ameh directed that I should hit the woman which I did. It is true that I am not in good terms with the complainant’s brother because we fought sometimes ago but Friday Ameh is also not in good terms with her. While the robbery operation was going on, one Paul Tijani Ameh who was with us forcefully pulled out her purse containing money. I (intend) used my daylong motorcycle to the scene where the woman was attacked.”

The learned trial judge considering the statement of appellant, Exhibit P2 and the evidence of PW1 from which he found the corroboration and also the evidence of DW3, the mother of the second accused who stated that PW1 and herself worshiped in the same church i.e. Quo Iboe Church, Inye.
The above findings of the trial Court tallied with those of the Court of Appeal and therefore brings into operation the attitude of the Supreme Court followed in a long time of cases, not to interfere or disturb such concurrent findings well made without a miscarriage of justice in view. See Adekunle v State (2006) 5 LRCNCC 1; Jinadu v Esu Rombi-Aro (2009) 4 KLR (Pt. 265) 883.

On the issue that the appellant retracted the said statement, Exhibit P2, that is not to be taken seriously as there was a lot of evidence outside of that statement that showed that the statement was not only true but the appellant was effectively pinned to the offence at the material time. I rely on Ubierho v State (2005) 5 NWLR (Pt. 919) 644; Solola v State (2005) 11 NWLR (Pt. 937) 460; Madjemu v State (2001) 9 NWLR (Pt. 718) 349.

The appellant alluded to some doubt that ought to be resolved in favour of the appellant thus knocking off the proof of the prosecution/respondent as required by law that is beyond reasonable doubt.

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I agree with learned counsel for the respondent that there is bountiful evidence before the Court to act on and the prosecution is not expected to produce proof beyond the shadow of doubt but rather proof beyond reasonable doubt and that is precisely what the prosecution has done. See Akinyemi v State (2001) 2 ACLR 32; Olalekan v State (2001) 18 NWLR (Pt. 746) 713; Bolanle v State (2009) 2 KLR (Pt. 272) 2211.

On the hue and cry by the appellant on the none tendering of the weapons of the offences, that is not buttressed by the numerous pieces of evidence all aligned to the ingredients of the offences being made out as required by law and so that the prosecution did not tender the weapons would not fatally affect the case of the prosecution. See State v Usman (2007) 5 ACLR 34; Ikuomola v Oniwaya (1990) 4 NWLR (Pt.146) 617 at 624.

Also to be noted is that the failure of the prosecution to tender medical evidence in proof of the offence of voluntary causing hurt to extort properly is an issue neither here nor there as there is a lot including the many injuries PW1 sustained that are in proof of the offence and so renders of no moment the non tendering of the injuring weapon and the medical evidence.
The prosecution has carried out the duties laid upon it by law that is proof beyond reasonable doubt of the offences charged. See Igago v State (2007) 2 ACLR 104; Agbo v State (2006) 6 NWLR (Pt. 658) 591; Akinyemi v State(2001) 2 ACLR.

In conclusion, from the foregoing and the better reasoned lead judgment I too see no merit in this appeal which I dismiss.
I abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: I had the advantage of reading the draft copy of Judgment of my learned brother Okoro JSC. I am in entire agreement with his reasoning and conclusion that this appeal lacks merit and should be dismissed. I adopt the reasoning and conclusion dismissing the appeal for want of merit as mine.
The appeal is hereby also dismissed by me and I affirm the Judgment of the lower Court which had also affirmed the Judgment of the trial Court convicting the appellant as charged. Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother John Inyang Okoro, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is accordingly dismissed by me.
Appearances

PRINCE J. O. Adele, with him, Prince A.E. Adele. – For Appellant

AND

M.A- Okpenechi Esq., Principal Legal Officer, MOJ Kogi State. – For Respondent

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