UGBOJI V. THE STATE (2017)

In The Supreme Court of Nigeria

On Friday, the 8th day of December, 2017

SC.593/2014

Before Their Lordships

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN 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
EJEMBI EKO Justice of The Supreme Court of Nigeria


Between

EMMANUEL UGBOJI – Appellant

AND

THE STATE – Respondent

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AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the Judgment of Court of Appeal, Makurdi Division (the lower Court) delivered on 19th December, 2013 which affirmed the decision of the Benue State High Court (the trial Court) which convicted and sentenced the appellant on the two count charge of conspiracy to commit armed robbery and armed robbery, contrary to Section 5 (a) and Section 1 (2) of the Robbery and. Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 respectively.The facts of the case, as could be gathered, from the printed record are that the present appellant and five others were charged before the trial High Court sitting in Otukpo and tried on five counts of conspiracy to commit series of robberies and armed robbery. At the trial, the prosecution called four witnesses to prove its case against the appellant and other five co-accused persons. After the close of the prosecution case, the defence made a No case Submission. The trial Court in its considered ruling on the No case Submission, ruled in favour of three accused persons. The trial Court discharged the appellant on the first count of conspiracy to commit armed robbery. The appellant was thereby called upon to enter his defence on the second count of armed robbery as well as another co-accused named Mathias Garuba Idoko and one other. The trial Court ruled that the appellant and two other co-accused had a case to answer, as prima facie case was made against them on counts 4 and 5. After the conclusion of the trial the appellant was found guilty, convicted and sentenced to death.
Piqued by the decision of the trial Court, the appellant herein, appealed to the Court of Appeal, Makurdi Division (the lower/Court below), as his appeal was dismissed by the lower Court. Still dissatisfied, the appellant appealed to this Court.
Brief of argument were filed and exchanged in compliance with the rules and practice of this Court. The appellant’s brief of argument settled by Oba Maduabuchi Esq. was filed on 17th December 2014. Upon being served with the appellant’s brief of argument, Sir Mathew Ominyi Atubu learned, Deputy Director of Public prosecution, Benue State Ministry of Justice who settled the respondent’s brief of argument, filed same on the 13th of June 2016 which was deemed filed on 20th June, 2016.
In the appellant’s brief of argument, two issues were raised for the determination of this appeal which are set out below;-
1. Whether in the circumstances of this case it was proper to convict the appellant to conspiracy (sic) to commit armed robbery proffered against the appellant
2. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt as required by law?

On its part, the respondent proposed five issues for the determination of his appeal as reproduced below;
(a) Whether the Attorney General of Benue State has power to prosecute the appellant? (Grounds 1, 2, 3 and 4.)
(b) Whether it is right to consider appellants brief and his Reply brief jointly by the lower Court (Ground 5)
(c) Whether the case against the appellant was proved beyond reasonable doubt? (Ground 6)
(d) Whether the appellant can be convicted based on his confessional statement (Ground 10)
(e) Whether the appellant can be convicted of conspiracy if the facts before the trial Court proved the offence of conspiracy against him. 
(Ground 7, 8 and 9).
Before considering the merit or otherwise of this appeal. I think it apposite to closely look at the issues raised by the parties in their respective briefs. The appellant merely raised two issues for the determination of the appeal. It is rather unfortunate that he did not marry or tie each of the two issues for determination to particular ground or grounds of appeal as contained in the notice of appeal dated 15th January, 2014 which contained ten grounds of appeal. This attitude is highly deplorable, as this Court had in the past admonished counsel for not marrying or stating the relevant ground or grounds of appeal to which the issue or issues proposed for determination relate to in their briefs of argument However, the learned counsel to the respondent herein had done a good job by specifically linking all the five issues for determination he raised, to particular or relevant ground or grounds of appeal in the notice of appeal. The learned counsel for the respondent deserves commendation for doing that.
Now looking closely at the two issues for determination raised by the appellant vis a vis the ground of appeal contained in the Notice and Grounds of appeal, I make bold to say that the appellant’s first issue for determination relates to grounds

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7, 8 and 9 which pertains to conspiracy while his second issue for determination which deals with poof of the offence beyond reasonable doubt could be said to have been lifted from grounds 6 and 10 in the Notice Appeal. The appellant therefore did not raise any issue on grounds 1, 2, 3 and 4 which have to do with whether the Attorney General of Benue State had power to prosecute the present appellant. Similarly, no issue was raised on Ground of appeal No 5 which queries whether the lower Court was correct to consider the appellant’s brief and reply brief jointly. It is trite law, that grounds of appeal on which no issue was raised is deemed to have been abandoned and deserves to be struck out. See IBATOR vs BARAKURO (2007) 9 NWLR (pt 1040) 475; BHOJSONS PLC vs DAVID KALIO (2006) 5 NWLR (pt 973) 330. I therefore hereby strike out grounds 1, 2, 3, 4 and 5 as no issue or issues were raised from those grounds of appeal.
Coming to the respondent’s brief of argument, it is noted by me, that he raised five issues for determination from all the ten grounds of appeal. As I stated supra, the appellant is deemed to have abandoned grounds 1, 2, 3, 4, and 5 because no issues were raised on any or all of them. It means that having been struck out, they do not exist at all. Despite the fact that the appellant’s brief of argument was served on the respondent, he still went ahead to raise some issues on those grounds of appeal for which no issue or issues were raised on them by the appellant. The respondent neither cross – appealed nor filed a Respondent’s Notice. As a corollary all the issues raised on the deemed abandoned grounds of appeal raised in the appellant’s notice of appeal can no longer stand. In other words, issues one and three which were abandoned by the appellant have to be and are hereby declared incompetent and accordingly struck out. All argument’s proffered on issues 1 and 2 in the respondent’s brief are also hereby discountenanced and struck out since the respondent never cross – appealed or filed any Respondent’s Notice. In view of all that I have posited above, the respondent is left with three valid issues for determination to co-exist side by side with the appellant’s two issues for determination.
Closely looking at the two issues raised in the appellant’s brief of argument I must to say that they subsumed all the three valid and existing respondent’s issues Nos 3, 4 and 5. In determining this appeal, I will choose to be guided by the two issues for determination contained in the appellant’s Brief, in view of their elegance in the way they were couched. In doing so I will however consider them together.
SUBMISSIONS OF COUNSEL ON THE ISSUES
The first issue- deals with whether it was proper for the trial Court to convict the appellant on the offence of conspiracy when there was no specific charge of conspiracy to commit Robbery.
The learned counsel to the appellant submits that trial Court was in error when it convicted the appellant for conspiracy to commit armed robbery, when he was not charged with any of such offences and that the Court below is equally in error to have affirmed such conviction.
The learned counsel for the appellant submitted that Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria has made compulsory provisions, directing that any person charged with an offence shall be told in clearest term what he is accused of having done. He referred to pages 2 & 3 of the record, where the charge against the appellant is contained. He argued that it is unthinkable that the trial Court which found that the charge of conspiracy was not proved, can later curiously convict the appellant for the offence of conspiracy. He submitted that it was wrong for the Court to rely on Sections 216 and 217 of the Criminal Procedure Codewithout giving the appellant the opportunity to react, as the Court suo motu decided that those provisions are applicable. He cited the case of STATE V OLADIMEJI (2003)7 SCNJ 67 at 73-74
He also submitted that it was wrong for the trial Court to invoke to Sections 216 and 217 of the Criminal Procedure Code to try the appellant as this would mean that the Court had to find another podium to convict the appellant. He referred to the Judgment of the trial Court at page 58 of the record and submitted that there was no confusion in the mind of the Court regarding the state of evidence. He submitted further that it is not normal to charge someone with an offence in the face of any doubt as to which offence or offences are probably committed. He cited the case of AGRO ALLIED DEVELOPMENT ENT LTD v. MV NORTHERN REEFER AND OTHERS (2009) 6 SCNJ 51 and also submitted that no Court can amend in a charge, the words used in a statute. He again submitted that the offence of conspiracy to rob could only be inferred if the appellant had been found or linked to the offence of robbing PW1 and PW2. He urged the Court to resolve this issue in favor of the appellant.

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The second issue for determination deals with whether the prosecution had proved the guilt of appellant beyond reasonable doubt. On this issue, the Learned counsel for the appellant submitted that where the prosecution’s case is subject to any doubt then there is no way the prosecution can discharge the burden placed upon it by Law. He submitted that in the charge of robbery the prosecution must prove the following:
(a) that there was a robbery
(b) that the robbery was armed robbery
(c) that the accused person was the robber.

Referring to the Judgment of the trial Court at pages 57 and 58 of the record, learned counsel asked that ‘where did the trial Court find the evidence upon which it relied on to convict the appellant when the same Court had already disparaged the evidence of the eye witness to the alleged armed robbery’? He submitted further, that where any person has not been charged with any offence or crime, then that person cannot be brought within the ambit of Section 28 the Evidence Act. He referred to the extra judicial statement of the appellant at page 15 of the record where the appellant stated that he was not an armed robber but a friend to an armed robber called Mathias Garba. He also referred to another statement of the appellant where he admitted to be an armed robber and that he had robbed at Otia Igbanomaye. (See page 16 of the record). The learned counsel submitted that confession must be with respect to the offence he was charged with and not any other offence. He also referred to the appellants last statement at page 18 of the record, where he confessed of having robbed at No 15 Norcross Primary School Otukpo on the 15th day of September, 2007. He also submitted that for a confession to ground conviction, it must pass through crucibles. He cited the case of JIMOH V STATE (2014) 10 NWLR (pt 1414) 105 at 742. He therefore submitted that a confession by an accused person that he robbed someone in Otia cannot directly or positively admit to have robbed PW1 and PW2 on the 9th day of October, 2007 at Otia f 7B Otukpo. He argued that there is nothing in the statements of the appellant to suggest that he committed the offence with which he was charged. He then urged this Court to resolve the second issue in favor of the appellant and to allow this appeal.
Responding to the contention of the appellant that he cannot be convicted of the offence of conspiracy since he was not charged with such offence, the learned counsel for the respondent argued that even though the appellant was not formally charged with the offence of conspiracy, it was lawful and proper that he was convicted of conspiracy because the facts proved against him disclosed the offence of conspiracy. He submitted that Sections 216 and 217 of the Criminal Procedure Code, Cap 30 Laws of Northern Nigeria 1965 which the trial Court invoked to convict appellant, correctly invoked or used such provisions to convict the appellant for the offence of conspiracy, notwithstanding the fact that he was not charged with such offence. He argued that the conviction of the appellant for the offence of conspiracy does not in any way offend the provisions of Section 36 (6) of the 1999 Constitution as amended, since the plea of “not guilty” by the appellant to the main charge can also stand for the offence of conspiracy to commit armed robbery on which he was convicted.
On whether the appellant can be convicted based on his own confessional statement alone, the learned counsel for the respondent submitted that the material evidence, as provided by PW1 and PW2 are enough corroboration to the confessional statement. He submitted further, that the confessional statements were rightly admitted in evidence as no objection was raised when such were tendered in evidence. He finally urged that a Court can even legally rely on confessional statement of the appellant alone in convicting and sentencing him, more so, his confessional statements were corroborated by the evidence of witnesses. He cited the case of ABIODUN V STATE (2019) ALL FWLR 1257 at 1261. He then urged this Court to dismiss the appeal.
My noble lords, permit me to observe that the appellant and four other co-accused were arraigned before the trial Court on five count charge. On the first count, all of them were accused of offence of conspiracy to commit armed robbery contrary to Section 5 (a) (b) of the Robbery and Firearms (Special Provision) Act, Cap 398 Laws of the Federation of Nigeria 1990 (hereinafter to be referred to as “the Act”). The other four counts were on various armed robberies, contrary to Section 1(2) (a) of the same Act. After their plea were taken in which they denied committing such offences, the trial proceeded (See pages 2 & 3 and pages 23 to 28 of the record.
By count one, the appellant was accused of committing the offence of conspiracy to commit armed robbery. Then after the close of the case of prosecution, the trial Court at page 64 of the Record held that the prosecution failed to prove any conspiracy to commit armed robbery and accordingly discharged the appellant and his other co-accused persons. In his own

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words, the trial Judge stated thus
“I have already made a note on how short of linking any of the accused person to the 1st, 2nd and 3rd charges the oral testimonies before me are. I say the same also of the extra judicial statements of the accused person. None of them admitted being a party to the specific offences charged in the 1st, 2nd and 3rd charges which are exclusively in relation to the incident that happened at No. 1 Achugilli Street Otukpo on or about the 10th day of October 2001. In relation to these charges, I discharge and acquit each and every one of the 1st, 2nd and 3rd accused persons.
As I stated earlier, amongst all the five counts/charges the appellant and other co-accused stood trial on, it is only on the first count that relates to conspiracy to commit armed robbery. The learned trial Judge in his finding quoted above, held that the offence fell short of proof by the prosecution/respondent and thereupon discharged and acquitted all the five accused persons, including the appellant. Now having discharged, and acquitted the appellant and other accused persons of counts 1st, 2nd and 3rd, the remaining charges then hanging on the neck of appellant are counts 4 and 5. For the avoidance of doubt, these two remaining counts relate to allegations of armed robberies committed on Adakole Ogale and Stephen Ichakpa (PWs 1 and 2) respectively, on the 9th October 2001, contrary to Section 1 (2) (a) of the Act. None of those two counts relates to the offence of conspiracy to commit armed robbery, contrary to Section 5 (b) of the Act.
With regard to these two counts, the learned trial Judge referred to the extra judicial statement of the 2nd accused person Exhibit B recorded on 20th October 2007 on which the trial Judge held that the second accused unequivocally and conclusively admitted that he and the present appellant and some other co-accused were part of the conspiracy to commit the various robberies. The trial Court then queries whether the admission by the 2nd accused was sufficient to convict the 2nd accused for the offence of conspiracy. Curiously the learned trial Judge finally arrived at the conclusion at pages 69-70 as reproduced below after extensive reference to Exhibit C, the extra – judicial statement of the appellant and Exhibit B made by the second accused person. The trial Judge’s finding or conclusion at pages 69 – 70 of the record is as follows:-
The question then is whether or not the accused persons can be convicted of conspiracy in the circumstances of this case even though they have not been specifically charged with the offence.
The provisions of Sections 216 and 217 of the Criminal Procedure Code are relevant in this regard Under these provisions read together, a trial Court has the power to convict an accused for any offence disclosed by evidence even though not specifically charged with it. In the instant case, even though in Exhibits A B and C each has admitted some robberies not charged, the reason why those admitted facts cannot form the basis of any conviction is because there are no facts by which the admissions can be tested.
The same cannot however be said of the conspiracy which the accused person have all admitted. The offence was complete upon their agreement. There are evidence outside the confessions showing that robberies were indeed committed at No 2 Otia F and at Otia 7B in furtherance of the agreement. I see the offence of criminal conspiracy to commit armed robbery established against each and every one of the 1st, 2nd and 3rd accused persons. And having also found that the offences of armed robberies in the 4th and 5th charges were indeed committed by the 1st and 
3rd accused persons in furtherance of a standing conspiracy between themselves and others including the 2nd accused, I see no escape route for the latter in relation to those specific charges even though he claims not to have participated in the robberies.
The trial Court then concluded as follows:-
In summation, after perusing the charges and considering the entire case for the prosecution as well as the defences of the respective accused persons, I am satisfied that the offences of conspiracy and armed robberies respectively punishable under Sections 5(b) and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap, 398 of the Laws of the Federation of Nigeria 1990 have each been established against each of the accused persons. They are each accordingly hereby convicted as charged and also for conspiracy punishable under Section 5(b) supra.

In affirming the trial Court’s foregoing and far reaching findings, the lower Court at pages 127 -128 of the record of appeal held thus:-
I shall, notwithstanding the above conclusion which settles the Issue in discourse still proceed to

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consider the issue of conviction for conspiracy for armed robbery and the imposition of a sentence for armed robbery even though not so charged.
Section 1(2)(a) of the Robbery and Firearms Act 1990 under which count 4 is brought provides as follows.
1(2)(a) if the offender mentioned in Sub-section (1) of this section, is armed with any Firearms or any offensive weapon, or is in company with any person so armed; or  (b)(b) at or immediately before or immediately after the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
5. Any person who — (a)— b conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
What the afore-quoted provisions of Section 5 of the Robbery and Firearms Act portends is that the law automatically deems an accused person who from the evidence 
led in a principal offence to have conspired in the commission of that offence to be presumed guilty without more. That simply means that the evidence disclosing conspiracy against an accused whether principally charged or not would be taken as evidence alluded to after a specific charge. This is a specific statutory provision which is akin to or similar to the related provision of Section 216 and 217 of the Criminal Procedure Code, discussed supra.
The offence of conspiracy arising from the principal charges(s) brought to the Notice of the Accused/Appellant and upon which a plea had been taken, cannot be said to be in violation of the constitutional guarantee for fair hearing or a violation to the Criminal Procedure Code provisions relating to arraignment, plea to specific allegations e.t.c.

In an effort to resolve the first issue, I think it is apt to state that the arguments proffered by learned counsel to the parties in this appeal, revolved on the provisions of Section 216 & Section 217 of the Criminal Procedure Code and Section 36 (6) of the Constitution of the Federal Republic of Nigeria 1999, as amended. I shall hereunder reproduce these provisions for purposes of clarity and ease of reference.
Section 216 of Criminal Procedure Code provides thus:-
Section 216 CPC. If a single act or series of acts is of such a nature that is doubtful to which of several different offences the fact which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed someone or other of the said offences.
Section 217 of Criminal Procedure Code reads:-
If in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.

Section 36 (6) of Constitution of the Federal Republic of Nigeria 1999 as amended provides as below:-
“36(6) Every person who is charged with a criminal offence shall be entitled to
(a) to be informed promptly in the language that he 
understands and in detail of the nature of the offence.
Also of significant importance, are the relevant provisions of Robbery and Firearms (Special Provisions) Act, namely Sections 1 and 5 of the Act. The provisions read as below:-
Section 1. Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.
Section 5. Any person who ———
Aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 5 of this Act; or
(a) Conspires with any person to commit such an offence, whether or not he is present when the offence is committed or attempted to be committed shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

Here, it needs to be noted, that the trial Court had never charged the appellant with the offence of criminal conspiracy. As I said earlier, the prosecution charged the appellant and other co-accused now respondents with the offence of

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conspiracy to commit armed robbery in count No. 1. After it presented its evidence in proof of the five counts, the trial Court discharged and acquitted the appellant with the offence of conspiracy along with the other co-accused as the trial Court found at that stage, that count or charge was not proved. The trial Court later went ahead in its judgment, to find in its conclusion, that the appellant and one other co-accused person did commit the offence of conspiracy, and without framing any formal charge of conspiracy, let alone taking his plea convicted him of that offence which it had earlier discharged and acquitted him. In doing so, the learned trial judge invoked the provisions of Sections 216 and 217 of the Criminal Procedure Code which said provisions had been extensively reproduced supra. Surprisingly, the lower Court endorsed such finding. The trial Court arrived at its finding in that regard without any charge framed, not to talk of, taking the plea of the appellant and calling him to present his defence. It therefore suo motu convicted him even without it being agitated to do so by the defence/respondent. It simply went ahead to sentence the appellant to death without the appellant being given any information about the offence he was accused of committing or the chance to admit or deny the allegation of committing the offence of conspiracy. This is rather bizarre, especially when one notes that the learned justices of the Court below affirmed such queer finding of the trial Court.
My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section one, made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. SeeA.G. Ondo State vs AG of the Federation and Ors (2002)9 NWLR (pt 772) 226.
By the provisions of Section 36 (6) (a) of the 1999 Constitution as amended, reproduced supra, any person charged with a criminal offence must be informed promptly and in detail, the nature of the offence he is charged with or accused of committing in the language he understands. It seems to me that by the provisions of Section 36 (6) (a), the Constitution has decreed that a formal charge has to be framed which also must be read to the accused person in the language he understands, as well as the details of the nature of the offence. The trial Court must also be certain that the accused has not been misled in his defence. The invocation of the provisions of Section 216 and Section 217 of Criminal Procedure Code to convict the present appellant of the offence of criminal conspiracy to commit armed robbery by the learned trial Judge without a formal charge framed in the circumstance, is a total breach of the constitutional provisions mentioned above.
I must state here, that there does not seem to be many reported decisions of this Court on the interpretation of Sections 216 and 217 of Criminal Procedure Code. Be that as it may, the observation of the Northern Nigeria High Court sitting an its appellate Jurisdiction on Sections 216 and 217 of the Criminal Procedure Code in the case of R. Ekechukwu vs Commissioner of Police (1966) NNLR 96 is relevant to this instant appeal or situation.
In that case the High Court of Northern Nigeria sitting in its appellate jurisdiction when considering the provisions of Sections 216 and 217 of the C P C, held that the two provisions empower a Court to convict on an offence not charged only if it had given the accused person notice of the facts of the offence of which he is convicted. I am not unaware of the fact that the prosecution at the trial Court, (now respondent) had actually sought and obtained leave from the trial Court pursuant to Rule 3(2) of the Criminal Procedure (Application for leave to frame charge in the High Court) Rules of 1970. Admittedly, the respondent annexed, to its application for leave, the name of appellant, names of the witnesses they anticipated to call to testify at the trials as well as, the proof of evidence. However, closely looking at the charges, the facts stated therein, are at large because the appellant named as an accused person in the charges was not particularly pinned down to a particular offence in the charges and which facts if established or proved will constitute which of the offence or offences he was accused of committing. Even the two counts i.e 4th and 5th counts on which the appellant was charged initially, besides them not being specific on which particular robbery out of the sundry or series of robberies allegedly committed by the appellant or which of the two counts the appellant participated in committing,

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since the offences mentioned in counts 4 and 5 were sundry. It was also not stated that the appellant participated in the two robberies mentioned in the two counts of robberies. With these anomalies manifest in the two counts, there is no gain to say, that the appellant was misled, particularly as regards the offence he was accused of committing or as to what facts constitute such offence or offences.
As I stated supra, the learned trial Judge invoked the provisions of Sections 216 and 217 of the CPC to convict the appellant. My understanding of the two provisions is that Sections 216 of CPC can only be invoked in a situation where series/several offences were suspected to have been committed and the prosecution is in doubt, as to which of the possible or available facts if proved, tend to constitute the offence. In such situation/circumstance, the prosecution is at liberty to charge the accused with all the offences or any one or more of such offences. He may even be charged in the alternative. Conversely, Section 217 of CPC only comes in to play, in a situation where an accused is charged with one of several offences but the evidence available clearly shows that the accused had instead, committed a different offence with which he is supposed to be charged initially, but was not so charged. ln that situation the Court of trial is at liberty to convict such accused of that other offence even though he was not formally charged with it. See R. Ezechukwu vs Commissioner of Police(supra).
To my mind, the conditions upon which the trial Court could invoke Section 216 and 217 of CPC were not met in this instant case, as to warrant or entitle the trial Court to apply the two provisions to convict the present appellant, more especially, if one considers the fact that the appellant, as at the time of his conviction, did not have any charge of conspiracy hanging on him or any relevant fact supporting the offence of conspiracy to commit armed robbery. Perhaps the only evidence that swayed the trial judge into convicting the appellant was Exhibit C, the alleged confessional statement of the appellant. I will come to that presently. The learned Justices of the lower Court in my view are/were wrong in affirming the decision of the trial Court when it held that the latter was right in applying the provisions of Section 216 and Section 217 of CPC to convict the appellant without a formal charge framed against him. Such finding is, in my considered view, perverse and erroneous. The first issue is therefore ultimately resolved against the respondent and in favour of the appellant.
The second and last issue for determination queries whether the prosecution had proved the guilt of the appellant beyond reasonable doubt.
The law is well settled, that the prosecution always has the burden to prove the commission of an offence (SeeSection 138 of the Evidence Act 2011 (as amended). This tallies with time honored principle of law that who asserts must prove. In criminal cases the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of ANI v STATE (2000) 6 SCNJ 98 at 107.
All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any of the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. See AGBOOLA VS STATE (2013) 11 NWLR (pt 1366) 619 at 641. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the under mentioned elements, namely:-
(I) that there was a robbery
(II) that the robbers or any of them was armed at the time of the robbery; and
(III) that the accursed person or persons was/were the armed robber(s)

SeeIKARIA v STATE (2012) SCNJ 325 at 34, Agbodeon vs State (2000)5, OLAYINKA v State (2007)9 NWLR (pt 1040)561. All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved, then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Adeoye v State (1999)6 NWLR (pt 605).
It is settled law; that there are three methods for proving an offence by the prosecution in order to obtain conviction. These three methods of proof are as follows:-
(a) By the testimony or testimonies of eye witness or witnesses.
(b) Through voluntary confessional statement of an accused Person
(c) Through circumstantial evidence.

In the instant case, the learned trial Judge having noticed that there was no reliable eye witness account fixing the appellant to the scene of the commission of the offence he was charged with and also no reliable or credible evidence

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incriminating him, the learned trial Judge resorted to relying on the purported confessional statement of the appellant Exhibit C and thereupon invoked the provisions of Section 217 of CPC to convict him. In this instant case, there is no doubt that offence or offences of armed robbery had been committed. That notwithstanding, the prosecution remains duty bound to adduce evidence fixing the appellant at the scene of the crime per se. This is because, it is not sufficient for the prosecution, (now respondent,) to lead evidence to prove that robbery or robberies took place without proving that the appellant had participated at the robbery along with the other co-accused. In an effort to prove the element of participation in the crime by the appellant herein with crime charged, the prosecution’s vital eye witnesses (the victims) i.e PW1 and PW4, failed woefully to identity the appellant as one of the robbers who robbed them on the day of the incident. In fact, at page 57 of the record, the trial Court states thus-
The Pws 1, 2 and 3 were the victims of the crimes charged. The Pw1 and Pw2 told of how robberies were committed against them in Otia area of Oturkpo town but were emphatic that they could not recognize any of those who came to rob them even at the identification parade which the police eventually conducted.
The learned Justices of the lower Court rightly endorsed the above finding of the trial Court at page 144 of the record when it stated, inter alia, that
If identified, that would have simply railed the appellant as the person that committed the offence of robbery for the absence of proof by direct or circumstantial evidence, the charge before the Court could not be proved as relating to the main or principal offence by eye witness identification.
Now, with the above far/reaching findings or pronouncements by the two Courts below, it will be correct to say that the prosecution/respondent had failed to use the two methods of proof of the offence against the appellant by means of eye witness account and through circumstantial evidence. Consequently, the learned trial Judge decided to invoke the provisions of Sections 216 and 217 of the Criminal Procedure Code to convict the appellant by using Exhibit C, his purported confessional statement which as he rightly found, there was no eye witness account to rely on or any circumstantial evidence adduced by the prosecution in proof of the offence against the appellant. The question that remains to be answered is ‘Does Exhibit C really qualify as a confessional statement that the trial Court could solely use or rely on in convicting the appellant. I will come to this later.
A confessional statement can simply be defined as an admission by a person charged/accused of committing a crime at any where stating or suggesting the inference that he committed such crime. See Section 28 of Evidence Act 2011, as amended.
It is well settled law that a free and voluntary confession of guilt by an accused person, if it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See Alabi v State (1993) 7 NWLR (pt 307)5; Fabiyi vs State (2015) 6 -7 SC (pt I) 83; Osetola & Ano vs The State (2012)6 SCNJ 3291; Nwachukwu v The State (2002) 7 SCNJ 230;Dogo v The State (2013) 3 SCNJ 144; Musa v State (2013) 2 – 3 SC (pt II) 75 at 92-94.
A dispassionate and close scrutiny of that purported confessional statement of the appellant i.e Exhibit C, one can say that neither the trial Court nor the lower Court had duly examined and evaluated Exhibit C since it is settled law that before a Court convicts an accused on his confessional statement alone, it must ascertain whether such confessional statement is voluntary, direct, positive, pungent and consistent with other facts as proved. See Jimoh v State (2014) 10 NWLR (Pt 1414) 105.
Looking at the first part of Exhibit C vis-a-vis the contents of the two counts, it can be said that there had been ambiguity as to which, who or how many robbery suspects participated and which of the robberies took place on 9th September 2001 or on 9th of October 2001. The two charges also did not specify the exact scene of the crime or the actual date the robberies took place, For instance, in count 4 it was mentioned that five accused persons took part in the robbery but only four suspects were named by the victim Adekole Ogale. It is worthy of note, that in the surrounding circumstance of this case/appeal, no charge was framed by the trial Court against the appellant as would have enabled the appellant to state his position when presenting his defence. This certainly must have been misleading and therefore must had ultimately led to gross miscarriage of Justice to the appellant/accused. The absence of a formal charge before his conviction, is infringement of his right to fair hearing as I have remarked earlier. The learned Justices of the lower

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Court ought to have closely looked at, examined and evaluated Exhibit C before later concluding whether it was safe for the trial Court to convict the appellant based on the alleged confessional statement alone as was done by it. This Court had in plethora of its decided authorities held that a Court of trial should always examine confessional statements in the light of other evidence in order to determine whether:-
(a) there is anything outside the confessional statement showing that the confession is true
(b)that the facts contained in the confessional statement are true as far as they can be tested.
(c) that the accused had opportunity of committing the offence
(d) that the confession is possible
(e)that the confession is consistent with other facts which have been ascertained and proved.

See Amadi vs State (1993) 8 NWLR (pt 314) 644; Musa vs State (Supra); Yesufu v State (1976) 6 SC 167. Obosi v State (1965) NWLR 119. In other words, it is always desirable for a trial Court to look for any independent evidence outside the confession which will ascertain the truth of that confessional statement or which will make it probable that the confession is true. See Onuoha v State (1987) 1 All NLR 150, Obosi v State (1985) NMLR 119.
In the instant case, I must say, that besides the two lower Courts failure to closely and painstakingly examine, and evaluate Exhibit C vis a vis the testimonies of Pws 1 and 2 who were the victims of the various robberies, the trial Court did not look for any corroborative evidence which, I must say, was absent in the entire or surrounding circumstance of the instant case. As I highlighted above also, no charge was framed by the Court against the appellant and therefore no opportunity was given to him to give his own account in his own defence. He also had no notice whatsoever, of the offence he was convicted on. This therefore led to a gross failure of Justice and miscarriage of justice was therefore occasioned on the appellant because Section 36 (6)(a) of the 1999 Constitution had been grossly infringed by the trial Court’s invocation of Section 216 and Section 217 of the CPC both of which runs riot and violent to the constitutional provisions. The resultant effect of the trials Court’s finding and the endorsement or affirmation of same by the lower Court and the latter Court’s failure to quash the conviction and sentence passed on the accused/appellant had occasioned miscarriage on the appellant herein.
Apropos of the above, I adjudge this appeal meritorious and I accordingly allow it. As a corollary, the conviction and sentence passed on the appellant by the trial Court which was affirmed by the lower Court is hereby accordingly set aside by me. Appellant is consequently discharged and acquitted. Appeal is allowed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother AMIRU SANUSI JSC just delivered, I agree entirely with his lordship’s reasoning and conclusion therein that the appeal has merit and succeeds. In the sister appeal No. SC. 594/2014 heard and determined in this Court on 9th June 2017, Mathias Garuba ldoko V. The State, after the resolution of the very issue raised by the instant appeal, I held as follows:-
“l am of the firm and considered view that given the facts on which the appellant is charge, he did not have the necessary notice of the offence with which he is convicted. It is, therefore, reasonable to accept the suggestion of his being misled in his defence and conclude that a failure of justice has indeed been occasioned.
Both Courts, I must finally say, wrongly relied on Section 5(b) of the Armed Robbery (Special Provisions) Act to convict the appellant on the basis of Exhibit B which they accept as sufficient proof of conspiracy against the appellant. That conclusion only avails the two Courts where the fact of the offence of conspiracy is formally charged, 
pleaded to and established by evidence. Then and only then would Section 5(b) of the Robbery Act become operative. It is not the case here as earlier stated in this Judgment.
Finally, since the appellant herein has not been given sufficient notice of the offence he is convicted for to facilitate his defence, the conviction runs against Section 36(6) {a} of the 1999 Constitution and is to that extent null and void.
In sum l find the appeal meritorious, and allow same. Resultantly, the conviction and sentence of the appellant by the trial Court as affirmed by the lower Court is hereby set aside”.

(Underlining mine for emphasis).
The foregoing decision on the very facts and law canvassed in the instant appeal must inform our decision in the subsequent appeal. See Francis Asanya V. State (1991) LPELR-574 (SC) and Chidoze Anekwe V. The State (2014) LPELR-22881 SC.

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 It is for the foregoing reason and the fuller reasons in the lead judgment that I allow the appeal and abide by the consequential orders therein.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant and 5 others were originally arraigned before the High Court of Benue State, sitting at Otukpo Judicial Division on a 5-count charge of conspiracy and armed robbery. Counts 1, 2 and 3 concerned an armed robbery incident which occurred on 18th October, 2001 at Achigili Street, Otukpo. Count 1 was a charge for conspiracy to commit armed robbery. One Salisu Mohammed was alleged to have been robbed at gun point and also shot and wounded in the course of the operation. He was allegedly robbed of the sum of N10,000.00.
In counts 4 and 5, the appellant and his co-accused were alleged to have committed the offences on 9th September 2001 and 9th October 2001 at Otia ‘F’ and Otia ‘F’ 7B, Otukpo, respectively. (See pages 2-3 of the record). They were alleged to have robbed one Adakole Ogale on 9/9/2001 and Stephen Ichakpa on 9/10/2001 of the sums of N3,500 and N16,000 respectively at gun point. Both counts were for armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria (LFN) 1990.
All the accused persons pleaded not guilty to each of the five counts. In the course of the trial, three of the accused were discharged on a no-case submission, leaving Olarewaju Akogwu, Mathias Garuba Idoko and the appellant who was the 3rd accused. They were eventually discharged and acquitted in respect of counts 1 ,2 and 3. With regard to counts 4 and 5, the learned trial Judge, relying on the accused persons’ extra judicial statement, found that the offence of armed robbery was established. He however invoked the provisions of Section 216 and 217 of the Criminal Procedure Code (CPC) and also convicted them for conspiracy to commit armed robbery, an offence for which they were not charged. He reasoned thus at pages 70-71 of the record:
“Under these provisions read together, a trial Court has the Power to convict an accused for any offence disclosed by the evidence even though not specifically charged with it. In the instant case, even though Exhibits A’, ‘B’ and ‘C’ each has admitted some robberies not charged, the reason why those admitted fact cannot form the basis of any conviction is because there are no other fact by which the truth of the admissions can be tested. The same cannot however be said of the conspiracy which the accused persons have all admitted. The offence was complete upon their agreement There are outside the confessions showing that robberies were indeed committed at No. 2 Otia ‘F’ and Otia ‘F’ 7B in furtherance of the agreement. I see the offence of criminal conspiracy to commit armed robbery established against each and every one of the 1st, 2nd and 3rd accused Persons. And having also found that the offences of armed robberies charged in the 4th and 5th charges were indeed committed by the 1st and 3rd accused persons in furtherance of a standing conspiracy between themselves and others including the 2nd accused, I see no escape route for the latter in relation to those specific charges even though he claims not to have participated in the robberies. See Section (5)(b) of the Act, supra.” 
The appellants appeal to the Court of Appeal, Makurdi Division was dismissed on 19/12/2013. The appellant is still
dissatisfied and has further appealed to this Court. My comments are mainly in respect of the appellant’s issue 1, to wit: “Whether in the circumstances of this case it was proper for the trial Court to have convicted the appellant for conspiracy when there was no specific charge of conspiracy to commit armed robbery proffered against him.” 
It is contended on behalf of the appellant that his conviction for an offence with which he was not charged amounts to a breach of his fundamental rights guaranteed by Section 36(6) of the 1999 Constitution. Learned counsel also observed that the Court raised the issue of convicting the appellant and his co-accused for conspiracy suo motu, without being so urged by any of the parties. He argued that both lower Courts misconstrued and misapplied the provisions of Section 216 and 217 of the CPC.
Learned counsel for the respondent maintained the position taken at the Court below to the effect that even though the appellant was not formally charged with the offence of conspiracy, the evidence before the Court disclosed the offence and therefore the trial Court rightly invoked the provisions of Section 216 and 217 of the CPC.
Section 36(6)(a) of the 1999 Constitution provides:

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“Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail, the nature of the offence.” 

In the instant case, it is not in doubt that the two surviving counts 4 and 5 were charges for armed robbery only involving two separate individuals in separate incidents and on different dates. It is also not in dispute that the learned trial Judge found categorically at pages 70 – 71 of the record as follows:
In the instant case, even though Exhibits A, B and C has each admitted some robberies not charged, the reason why those admitted fact cannot form the basis of any conviction is because there are no other fact by which the truth of the admissions can be tested.”

Exhibit C consists of 3 statements made by the appellant.
The learned trial Judge noted that in each of the statements, the robberies admitted were not the ones the accused persons were charged with. He was however of the view that since the statements contained facts showing that there was a conspiracy to rob, such fact coupled with the evidence that robberies actually took place at No. 2 Otia ‘F’ and at Otia ‘F’ 7B, were sufficient basis to ground their convictions for both conspiracy and armed robbery.
The question to be answered is whether the circumstances of this case met the requirements of Section 216 and 217 of the CPC to warrant the conviction of the appellant for conspiracy for which he was not charged.
Sections 216 and 217 of the CPC provide:
“216. If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together or he may be charged in the alternative with having committed someone or other of the said offences.
217. If in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed although he was not charged with it ” 

It is pertinent to state here that the 2nd accused at the trial Court, Mathias Garuba Idoko was convicted solely for the offence of conspiracy, with which he was never charged, based on his alleged confessional statement, Exhibit B. His appeal to the Court of Appeal was unsuccessful. However on further appeal, this Court it was held that the invocation of the provisions of Section 216 and 217 of the Criminal Code by the learned trial Judge in the circumstances of the case amounted to a breach of his fundamental right to fair hearing. In that case: Mathias Garuba Idoko Vs The State: SC. 594/2014delivered on 9th June, 2017, I held inter alia, as follows:
“It is settled law that an accused person may be convicted of a lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence. See: Ahmed Sule (alias Eza) Vs The State (2001) 12 SCNJ 1; Adeyemi Vs The State (1991) 6 NWLR (Pt 195) 1; Nwachukwu Vs The State (1986) 2 NWLR (Pt 25) 765.
Section 216 of the Criminal Procedure Code (CPC) seeks to address a situation where several offences might have been committed and the prosecution is in doubt as to which of the possible offences the available facts, if proved, could constitute. It permits the prosecution to charge the accused with all or any one or more of such offences. He may also be charged in the alternative.
By Section 217 of the CPC, 
where the scenario in Section 216 occurs and the accused is charged with one of several possible offences but from the evidence the accused is shown to have committed a different offence, with which he could have been charged but was not, he may be convicted of that other offence although not charged with it.
In Ezechukwu Vs C.O.P (1996) NWLR 96 @ 101, the Court of Appeal held that where Section 217 is to be relied upon in convicting an accused person of an offence with which he was not charged it must be apparent (1) that it had been doubtful which of several offence the facts which could be proved would constitute and (2) such doubt must apply only to the law and not to the fact; that is to say the fact charged must have given the accused person notice of the offence with which he is to be convicted, I think this view accords with sound reasoning and I adopt it.” 

I adopt the reasoning in the instant case. The framing of counts 4 and 5 showed that the prosecution was not in any doubt as to the offences with which they intended to charge the appellant and his co-accused. Conspiracy to commit an offence is a separate and distinct offence independent of

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the actual offence to which the conspiracy is related. The actual commission of the offence is not necessary to secure a conviction for conspiracy. The bare agreement to commit the offence is sufficient. See: Okemefune Ndozie Vs The State (2016) LPELR- 26067 (SC) @ 14-15 D-A; Sule Vs The State (2009) 17 NWLR (Pt. 1169) 33; Ikemson Vs The State (1989) 3 NWLR (Pt. 110) 455 @ 467-468.

In addition to the right of an accused person to be informed promptly and in detail of the nature of the offence with which he is charged (Section 36(6)(a) of the 1999 Constitution), he is also entitled to be given adequate time and facilities for the preparation of his defence (Section 36(6)(b) of the Constitution). To be convicted for the offence of conspiracy without being afforded an opportunity to plead thereto and to prepare his defence, is a gross violation of the appellant’s fundamental right. In my considered view, the lower Court erred in affirming the judgment of the trial Court.
With regard to the charge of armed robbery, the learned trial Judge relied essentially on Exhibit C, the appellant’s extrajudicial statements even though PW2 and PW3 stated that they could not recognize those who attacked and robbed them.
For a confessional statement to ground a conviction, it must be voluntarily made, positive and unequivocal. It must state or suggest the inference that he committed the crime. See: Section 28 of the Evidence Act 2011; Ikemson Vs The State (supra); Agboola vs The State (2013) LPELR- 20652 (SC) @ 50 E-F; Nwachukwu Vs The State(2007) 17 NWLR (Pt. 1062) 31 @ 70.
I have read the appellant’s statements admitted as Exhibit C. They are at pages 15-18 of the record. Although he admits to being member of an armed robbery gang and also admits to participating in some armed robberies, the statement is very general in nature. In counts 4 and 5 he was accused of participating in armed robberies at specific addresses on specific dates. The so-called admission in Exhibit C is not specific as to the dates on which he allegedly committed the offences or the specific addresses where the robberies allegedly took place.
The victims of the crime as noted by the learned trial Judge stated that they could not identify those who attacked them. PW2 in particular stated that he was unable to pick out the appellant and his co-accused in an identification parade conducted by the police. Although the appellant admitted being a member of an armed robbery gang there was no evidence linking him to the offences charged in counts 4 and 5. The learned trial Judge merely used the admission of an alleged conspiracy to conclude that the agreement was in respect of the armed robberies charged in the said counts.
I am of the view that there is a lacuna in the prosecution’s case, raising a doubt that ought to have been resolved in the appellant’s favour. Such doubt could not be resolved by convicting the appellant for an offence for which he was never charged.
For these and the fuller reasons ably advanced in the lead judgment of my learned brother Amiru Sanusi, JSC, I find merit in this appeal. It is accordingly allowed. The judgment of the Court below delivered on 19/12/2013 is hereby set aside. The appellant is accordingly acquitted and discharged.
JOHN INYANG OKORO, J.S.C.: I was privileged to have read in draft the judgment just delivered by my learned brother, Amiru Sanusi, JSC with which I am in agreement that this appeal is meritorious and deserves an order allowing same. I shall make a few comments in support of the judgment.
This Court has in a plethora of authorities held that for the prosecution to succeed against an accused person in a charge of armed robbery, it has to prove beyond reasonable doubt that:
(i) there was a robbery or a series of robberies
(ii) that each robbery was an armed robbery
(iii) that the appellant was one of those who took part in the armed robbery or robberies.
Thus, it is not enough for the prosecution to prove that there was armed robbery, it must go further and establish beyond reasonable doubt that the accused/appellant had participated in the robbery. SeeBozin v The State (1985) LPELR -799 (SC), (1985) 2 NWLR (pt 8) P.465, The State v Salawu (2011) LPELR – 8252 (SC), (2011) 18 NWLR (pt 1279) 580, Olatinwo v The State (2013) 8 NWLR (pt 1355) 126.

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In the instant case, it cannot be said with certainty that the Respondent proved the participation of the appellant in the robbery beyond reasonable doubt. Both the trial High Court and the Court below found that the victims of the robberies could not identify or link the appellant with the offence charged. The alleged confessional statement made by the appellant fell short of the standard required by law. For a confessional statement to be used against an accused person, it must be shown to have been voluntarily made positive, direct, pungent and consistent with other facts as proved in the case. See Jimoh vs The State (2014) 10 NWLR (pt 1414) 105, Nkie vs Federal Republic of Nigeria (2014) 13 NWLR (pt 1424) 305. Exhibit C, relied upon to link the appellant with the robbery was not direct and positive enough. It needed some measure of corroboration before it could be relied upon to convict the appellant.
Secondly, it is against the letter and spirit of Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for an accused person to be convicted of an offence he was not charged with and given opportunity to defend himself. The conviction of the appellant of conspiracy after he had earlier been found guilty of same by invoking Section 216 and 217 of the Criminal Procedure Code violently violates Section 36 (6) of the Constitution (supra). It cannot be allowed to stand.
This appeal is meritorious and is accordingly allowed by me. I set aside the conviction and sentence of the appellant as affirmed by the Court below. I adopt the fuller reasons adumbrated in the lead judgment of my learned brother Sanusi, JSC.
Appeal Allowed.
EJEMBI EKO, J.S.C.: The appellant and 5 others were prosecuted on 5 count charge at the High Court of Benue State, sitting at Otukpo. The summary of the 5 count charge runs, thus:
A. Offences allegedly committed on 18th October, 2001 at Achigili Street, Otukpo-
1. Conspiracy to commit robbery;
2. Robbing Salisu Mohammed (Pw.3) of the sum of N10,000.00;
3. shooting and injuring Salisu Mohammed (PW.3) in the course of robbing him.
B. Offences allegedly committed on 9th September, 2001 at Otia F, Igbanonmaje, Otukpo
4. Robbing Adakole Ogale (PW. 1) of N3,500.00 at gun point; and
5. Robbing Stephen Ichakpa (Pw.2) of N6,000.00 at gunpoint.
Upon a successful no-case submission all the accused persons, including the appellant herein, were discharged and acquitted on counts 1, 2 and 3 (that is A1, 2 & 3 – The offences allegedly committed on 18th October, 2001 at Achigili Street, Otukpo. The prosecution did not appeal the decision and the order).
The trial of the appellant and others proceeded to final judgment only in respect of the two robberies allegedly committed on 9th September, 2001 at Otia F, Igbanonmaje, Otukpo. That is counts 4 and 5 (or B4 & 5) Neither of PW.1 and PW.2 was able to identify any particular persons that robbed each of them.
The extra-judicial statements comprising the statements made on 19th October, 2001 and 20th October, 2001 supposedly confessional statements, were put in evidence as Exhibit C by the prosecution. They formed part of the prosecution’s case. In the statement made on 19th October 2001, the appellant out-rightly denied being an armed robber. He emphatically stated therein that, though he was a friend of an armed robber, he was himself not an armed robber. This is not a confession as it does not admit any crime the maker was charged with. An admission is only a confession if at the time it was made the maker had been charged with a crime and the maker therein admitted the crime. See Section 27 (1) of the Evidence Act, 1990 (now Section 28 of the extant Evidence Act, 2011). There lies the distinction between a confession under the Evidence Act and the confession to the Spiritual Father under the Canon law. The latter is a confession of moral guilt whereas the former must be in relation or respect of crime charged.
The appellant’s statement of 20th October, 2001 wherein he seemingly admitted committing non-specific robberies at Ameh Street and participating in other non-specific robbery operations in Igbanonmaje cannot qualify as a confession defined by the Evidence Act. The statement of 20th October, 2001 is just vague and nebulous. It neither admitted the robbery the PW.1 testified to, nor the robbery the PW2 testified to. On the totality of the extra-judicial statement of the

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appellant made on 20th October, 2001 and the evidence of PW.1 and PW.2, there has been a doubt created and cast on the prosecution’s case as to whether the appellant committed any of the criminal offences alleged in counts 4 and 5. The elementary rule in our adversarial jurisprudence or in the administration of criminal justice is; where there exists any doubt in the case of the prosecution, such doubt must be resolved in favour of the accused person. SeeIGABELE v. THE STATE (2006) 6 NWLR (PT.975) 100 at 127.
The trial of the appellant at the trial Court should have ended on the submission of the defence counsel, Mr. Omengala that; even though the statements in Exhibit C appear to be confessional in nature, they however never admitted the confession of any crime charged. On the authority of NWACHUKWU v. STATE (2002) LRCN 2110 at 2127 & 2131; HASSAN v. THE STATE (2002) 3 LRCN 1 at 8, and ALARAPE v. STATE (2001) 14 WRN 1 at 20,the learned counsel submitted quite correctly, at the trial Court, that the “confession” were not direct and positive enough.
The appellant, as the 3rd Accused, was convicted by the trial Court, purporting to be acting under Sections 216and 217 for conspiracy to commit robberies not charged. It found solace in Exhibit C. Also on the basis of Exhibit C the appellant was convicted for the robberies charged in counts 4 and 5.
The intriguing aspect of this latter posture of the learned trial Judge is that earlier on a no case submission he had ruled that –
1. Pw.1, Pw.2 and Pw.3, victims of the robberies were emphatic that they could not identify or recognise the person(s) who robbed them;
2. There would be no evidence to proceed against the accused persons, including the appellant, if the trial hinged on the evidence of the victims, Pw1, 2, & 3.
I had earlier demonstrated how, on the totality of Exhibit C and the evidence of Pw.1 and Pw.2 there is a palpable doubt cast as to whether the appellant committed the robberies alleged in counts 4 and 5. The law on this, as re-stated and espoused by this Court, in several decisions, including BOY MUKA v. THE STATE (1976) 10 SC 305; JAMES IKHANE v C. O. P (1977) 6 SC 119, is that if on the whole of the evidence presented by the prosecution the trial Court if left in state of doubt, then the prosecution in the circumstance, had failed to prove their case beyond reasonable doubt and the prisoner is entitled to be discharged.
The trial Court and the Court of Appeal seem erroneously to believe that the extra-judicial statement of the appellant made on 25th October, 2011 was part of the proceedings. It was not, and this is clear from the evidence of the pw.4, the investigating police officer at pages 34 – 37 of the record. The said statement is irrelevant to the proceedings because it related to the alleged robbery committed on 15th September, 2001 at No. 15, Japan Street, Otukpo. That statement is neither material nor relevant to any of the 5 counts the appellants defended at the trial. It is completely extraneous to the 5 charges. A confession, I repeat, is only relevant and admissible in evidence if it is in respect of the crime the accused person is charged with.
The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE v. SHORUN (1985) NWLR (pt.2)360. When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR v. IBRAHIM (1975) 5 SC 55; IROLO v. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN v. OZOKWERE (2013) LPELR  21897 (sc).
It is obvious that the trial Court, in convicting the appellant for the crimes charged in counts 4 and 5 and the conspiracies not charged, took into consideration what it calls the entire case for the prosecution. It includes the testimonies of Pw’s 1, 2, and 3 that it had earlier disparaged.
A witness discredited can no longer be credited with probative value. A Court can no longer rely on the evidence it has discredited, or which it found unreliable. Doing so, the same Court will be reprobating and approbating on the same evidence at the same. It cannot do that, as the Court of Appeal stated in ADEKA v. VAATIA (1987) 1 NWLR (pt.48) 134. Consistency is always the rule each Court is enjoined to follow. That is the essence of the principle

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of stare decisis, which enjoins the judge or adjudicator to stand by the things decided.
This Court, as a policy, is loathe to intervene and interfere with the concurrent findings of fact made by the trial and intermediate Courts. The exception is, inter alia, when the concurrent findings are perverse. I had earlier demonstrated the perversity of the decision of the trial Court affirmed by the Court of Appeal. On this basis alone the appeal will be allowed.
The Pw.1 and Pw.2 did not prove the allegations respectively in counts 4 and 5. The trial Court was emphatic that the evidence of Pw.1 and Pw.2 could not sustain conviction of the accused persons, including the appellant, for the robberies the subject of counts 4 and 5. No statement made by the appellant could sustain such conviction also. The prosecution, apparently accepting the adverse findings of fact, did not appeal on them. They are deemed to have accepted the adverse findings.
At pages 69 – 70 of record, it is obvious that the trial Court invoked the provisions of Sections 216 and 217 of the Criminal Procedure Code (CPC) applicable in Benue State, to convict the appellant, on the basis of Exhibit C, for conspiracy to commit robberies not specifically charged. The appellant also was not specifically charged for the said admitted conspiracy.
The exercise of the discretion to convict for offences not specifically charged in the instant case appears capricious. It seems also to usurp the function or prerogative of the prosecutor who, though seized of the facts in Exhibit C, elected in their undoubted wisdom and powers not to charge the appellant on the purported admission. Secondly, the exercise of the discretion, purportedly under Sections 216 and 217 of the CPC, flagrantly violatesSection 36(6)(a) & (b) of the 1999 Constitution that provide:
36. (b)Every person who is charged with a criminal offence shall be entitled to –
a. to be informed promptly in the language that he understands and in detail of the nature of the nature of offence.
b. to be given adequate and facilities for the preparation of his defence.

The purport and intent of Section 36(6) (a) of the Constitution are the poignant or emphatic audi alteram partemwhich also is inherent in Sub-section (1) of the same Section 36. Sections 216 and 217 CPC are not enacted to enable the Courts to gleefully flout and disobey the imperatives of fair hearing dictated by Section 36(6) (a) and (b) of the Constitution.
Non-compliance with mandatory provisions of a statute has the consequence of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere irregularity, but an illegality. See SANMABO v. THE STATE (1967) NMLR 314 AT 317; SALAMI OLONJE v. I.G.P (1955-56) WRNLR 1; AMOKEODO v. I.G.P (1999) 6 NWLR (pt.607) 467; THE STATE v. GWONTO (1982) NSCC 104. In the GWONTO case this Court found on the facts that the mandatory provisions as to interpretation were substantially complied with.
The consequences of any criminal proceeding conducted in violation of the mandatory arraignment procedure and Section 36(6)(a) of the Constitution are lucidly stated by this Court in OYEDIRAN v. THE REPUBLIC (1967) NMLR 122; JOSIAH v. THE STATE (1985) 1 SC 406 at 416; EYOROKOROMO v. THE STATE (1979) 6 – 7 SC 3. Citing these authorities with approval, Wali, JSC in KAJUBO v. THE STATE (1988) NWLR (pt.73) 721 stated, thus:
”A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a prerequisite of a valid trial, and where a trial judge proceeded to try the accused without strictly complying with the provisions of Section 215 of the Criminal Law and Section 33(6)(a) of the 1979 Constitution (in pari materia with Section 36(6)(a) of the 1999 Constitution), the trial would be declared a nullity by the Appeal Court.”
The conviction of the appellant for crimes he had no notice of clearly violates his right to fair trial guaranteed by Section 36(1) and (6)(a) of the 1999 Constitution. The Convictions and the sentence therefore, duly affirmed by the Court of Appeal, are null and void. They are accordingly set aside.
On the whole, there is merit in the appeal. Convictions of the appellant on counts 4 and 5, as I had earlier demonstrated, are perverse. The capricious resort to Sections 216 and 217 of the CPC to convict the appellant for crimes, in conspiracy for robberies not specifically charged flagrantly violate the right of the appellant to fair
trial guaranteed by Section 36(6)(a) of the Constitution. The conviction and the sentence therefore being a nullity are hereby set aside.
For the foregoing reasons and the more detailed reasons in the lead judgment of my learned brother, AMIRU SANUSI, JSC, which I fully concur in, I allow the appeal and abide all the consequential orders made therein.

Appearances

OBA MADUABOUOHI, with him, CHIJIOKE DIKE NDIDIGWE, EVELYN JOSEPH and ROBERT SHIAONDO. For Appellant

AND

SIR M. O ADUBU, DDPP, BENUE STATE MINISTRY OF JUSTICE. For Respondent

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