ABIOLA OYEYEMI v. THE STATE (2019)

ABIOLA OYEYEMI v. THE STATE

(2019)LCN/12946(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/AK/193C/2018

RATIO

MURDER CASES: THE IMPORTANCE OF MENS REA RECENTLY UNDER THE LAW

In the case of UMAR V THE STATE (2014) LPELR ? 23190 (SC) the Court held that:

It is now settled that what is relevant in our criminal law is that the act of the accused person which resulted in the death of the deceased must be unlawful. The mens rea, or malice aforethought no longer governs the criminal responsibility of the accused person as they are common law concepts. Motive is also said to be irrelevant except where if proved, strengthens the case of the prosecution. SeeADEKUNLE V THE STATE (SUPRA) per Ogbuagu JSC, NWALI V THE STATE (1991) 5 SCN, 14. As neatly put in the decision of this Court in the case of MUSA V THE STATE (2013) LPELR 21866 (CA): Now mens rea is wrapped up in the doctrine that a person desires the probable consequences of his action. See also the more recent Supreme Court case of IDAGU V THE STATE (2018) LPELR 44343 (SC).PER PATRICIA AJUMA MAHMOUD, J.C.A.

ARMED ROBBERY: WHEN A ROBBERY IS SAID TO BE ARMED ROBBERY

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

ABIOLA OYEYEMI Appellant(s)

AND

THE STATE Respondent(s)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Abiola Oyeyemi was charged and tried on a lone count charge of armed robbery, contrary to and punishable under SECTION 1(2)(B) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP RII LAWS OF THE FEDERATION OF NIGERIA, 2004 BEFORE HON. JUSTICE S. A. BOLA OF THE ONDO STATE HIGH COURT SITTING IN AKURE. The case of the prosecution was that on the 8th day of April, 2015, the appellant and two others robbed one Dosumu Stephen of two mobile phones while armed with guns. That the victim, a DSS officer was on his way home from a government rally when he got to a T-junction where he usually parked his car in front of one Mr. Asiwaju?s house, when he saw a motorcycle conveying three persons. That two of the three persons alighted from the motorcycle and took positions, one in front of his car and the other at the back. That the third person who was masked went to his side windscreen and told him to turn off the ignition of the car. That he ordered him to open the car, (which he did) collected his car key and demanded for his phones while pointing a

gun at him and telling him to cooperate and bring out ?the money?. That while the victim was begging the masked robber to spare his life the one stationed in front of the victim?s car shot at the windscreen indicating they meant business and the guns they were holding were not toy guns. The victim told the masked robber who had a gun pointed at him that there was money in the trunk of his car. That he would give them all the money if they will spare his life. The masked robber pushed the victim to the trunk of the car to get the money. On getting there the victim pretended as if he wanted to bring out the money but instead brought out his service rifle and shot the masked robber. The robber standing in front of the vehicle on hearing the gunshot ran away. The third robber who was on the motorcycle at the back of the victim?s car fired a shot at the victim to enable him escape. The victim shot at the third robber (later identified as the appellant) and he fell down from the motorcycle with the gun he was holding. Throughout this cross fire the victim kept shouting for help. His friend Asiwaju in front of whose house he was trying to park

his car, called some security agencies. They took the dead masked robber to the mortuary and the appellant to the hospital.

In proof of its case, the prosecution called two witnesses and tendered six exhibits which were admitted in evidence and marked as Exhibits A, A1, B, B1, C and D.

The accused in his defence testified in his own behalf and called one other witness. This witness was more of a character witness than a witness of the crime that resulted into this case. The accused person did not tender any exhibit in support of his defence.

At the conclusion of hearing the learned trial judge in his judgment delivered on the 24th day of January, 2018 found the appellant guilty, convicted him for armed robbery under Section 1(2)(a) of the ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT, CAP RII, LFN, 2004 and sentenced him to death.

The appellant, dissatisfied with this decision appealed to this Court in an amended Notice of Appeal filed on the 13/08/2018. In it, the appellant raised the following three grounds of appeal:
GROUND 1
The judgment of the lower Court is unreasonable and unwarranted and same cannot be supported by the

evidence adduced.
GROUND 2
The Learned Trial Judge erred in law when His Lordship held that the prosecution proved the offence of Armed Robbery beyond reasonable doubt when the prosecution failed to establish the third element of the offence.
PARTICULARS OF ERROR
i. The prosecution failed to establish the elements of the offence of Armed Robbery.
ii. The prosecution gave evidence that all the ammunitions were recovered beside the deceased at the scene of the crime and not the appellant.
iii. The prosecution failed to prove that the appellant was armed on the night of the crime.
iv. The prosecution gave evidence that it was night time and dark at the time of the commission of the crime, therefore, in the absence of evidence of illumination, the complainant could not have been able to positively identify and see that the Appellant was armed.
v. Mere presence at the scene of the crime does not constitute an offence and the prosecution failed to prove that the Appellant took any action or omission in furtherance of the armed robbery of the complainant.
GROUND 3
The learned trial judge erred in law, when his

Lordship failed to avert his mind to the defence put up by the appellant which is that the appellant was instructed to convey the deceased to the area by on Daddy Gold.
PARTICULARS OF ERROR
i. The Appellant made a defence that he was at the scene of the crime because he was instructed to convey the deceased to the area by one Daddy Gold, from the moment he was arrested.
ii. The Appellant denied knowing that deceased intended to commit a crime or that the appellant participated in same.
iii. He also put up the same defence during his testimony at trial.
iv. The learned trial judge failed to avert his mind to the appellant?s defence as to why he was at the scene of the crime.

In support of his appeal and from the three grounds of appeal, the appellant filed a brief of argument on the 25/07/2018. In arguing the appeal, Mr. M. O. Folorunsho of counsel for the appellant adopted the brief as his legal arguments in support of the appeal. In it counsel formulated a sole issue for the determination of the Court as follows:-
Based on the evidence made available by the prosecution in this case, was the noble trial judge

right in holding that the prosecution proved the offence of armed robbery against the Appellant thereby rendering him to be convicted of the offence charged

In answering this one issue, the learned counsel to the appellant conceded that the prosecution had established two of the three ingredients necessary to make out a case against the appellant. These are that there was a robbery incident on the date in question and it was an armed one. Counsel also conceded that the appellant was at the scene. His point of departure lies in the allegation that the appellant held or carried a gun. Counsel contended that the allegation that the appellant was holding a gun was not proved beyond reasonable doubt. Counsel submitted that there is a contradiction in the evidence of PW1 and PW2. He referred to both testimonies at pages 17 and 22 respectively of the printed records to contend that while PW1 testified that the gun was found on the appellant, PW2?s testimony on the contrary was that the gun was found beside the appellant. The submission of learned counsel is to the effect that the appellant never carried a gun. That he only conveyed the deceased

robber to the scene of crime. That the evidence of PW1 was that the place was dark so he could not have seen properly to establish that the appellant who was at the back of the car was carrying a gun. That the evidence of PW1 that the appellant was at the back of the car is capable of two meanings; that is the distance could be proximate or remote, close or far. Counsel referred to the cases of AKINKUNMI V STATE (1987) 1 NWLR PT 52, 608 AT 616 PARA H AND OLADELE V STATE (1993) I NWLR, PT 294 AT 307 PARAS F-G AND 310 PARAS F-H to submit that where evidence is capable of two or more different meanings the law leans towards choosing the one favourable to the accused person. Counsel urged the Court to hold that the appellant was not in any immediate distance to PW1 and it was impossible for PW1 to see the appellant especially as the scene of crime was dark. Mr. Folorunsho also submitted that the mere presence of a person at the scene of crime without more will not render one criminally liable. He referred to the case of YAKUBU MOHAMMED & ANOR V THE STATE (1980) ANLR, 138 AT 146. Counsel quoted Exhibit D extensively to show that it was one Daddy Gold, the owner

of the motor cycle he was using as ?Okada? that requested him to carry the deceased robber to Ijoka area which he did and that he knew nothing about the robbery incident. That the failure of the prosecution to cross-examine the appellant on what his mission was at the scene of crime is fatal. Counsel referred to the cases of EGWUMI V STATE (2013) 13 NWLR PT 1372, 525 AT 552 AND GAJI V PAYE (2003) 8 NWLR PT 823, 588 AT 605, PARAS A-C among other cases cited and contained in the brief to support this assertion. Counsel further submitted that since there is no contrary evidence and the evidence is not unbelievable and improbable the trial Court should have acted on it. Counsel referred to the case of MODUPE V STATE (1988) 4 NWLR PT 87, 130 AT 137, PARAS D-E. Counsel submitted that the prosecution failed to prove that the appellant participated in the armed robbery incident of 8th day of April, 2015. That having failed to prove this essential element of the offence, the prosecution cannot be said to have proved the case beyond reasonable doubt. Counsel relied on the cases of ALABI V STATE (1993) 7 NWLR, PT 307, 511 and IKARIA V STATE (2014) 1 NWLR, PT

1389, 639 AT 655, PARAS C-F and urged the Court to allow this appeal and to discharge ad acquit the appellant.

The respondent in opposing this appeal filed their brief of argument on the 4th of December, 2018 which was deemed on the 22/01/2019. Mr. R. P. Olatubora of counsel for the respondent adopted same as their legal arguments in opposition to the appeal. The sole issue raised for consideration of the Court in the brief is:-
Whether having regard to the facts of the case and the evidence led, the learned trial Court was not justified in convicting the appellant for the offence of armed robbery.

In submitting on this sole issue, counsel referred to the case of SALAWU V STATE (2010) LPELR – 9106 to reaffirm the three issues the prosecution must prove to sustain a charge of armed robbery. The first ingredient according to counsel is that there was a robbery or series of robbery. On this counsel referred to the testimonies of PW1 and PW2 which he described as clear, consistent, unequivocal and uncontradicted as establishing the fact that there was a robbery on the 8th day of the April, 2015. Counsel referred to pages 17-19 and 21-26

of the printed records. The fact that the robbery was an armed robbery was according to counsel confirmed by the evidence of PW1 which was corroborated by the testimony of PW2 as contained at pages 17-19 and 21-26 of the printed records as well as Exhibits A-A1 and B-B1 recovered from the scene of crime as well as the impact of bullets fired at the victim?s windscreen. The fact that the accused took part in the robbery according to the respondent?s counsel is established by the appellant?s admission in examination in chief and cross examination as contained at pages 29 and 31 of the printed records. That this evidence which put him at the scene of crime corroborates the evidence of PW1 at page 17 of the printed records where he testified that one of the robbers, who robbed him on the 8th of April, 2015 was armed with a gun and sat on the motorcycle that conveyed the robbers to the scene of crime. That the appellant at the lower Court did not contradict the evidence led by the respondent as to the fact that the appellant was at the scene of crime where he sustained a gunshot injury as well as the fact that two locally made guns were recovered

at the scene of crime.

Mr. Olatubora further submitted that assuming without conceding that the appellant did not show the victim a gun or did not have a gun on him at the scene of crime, this does not exonerate him from the offence of armed robbery. Counsel referred to the cases of IFEANYICHUKWU AKWUOBI V STATE (2011) LPELR ? 4825 (CA); ABUBAKAR V STATE (2015) LPELR – 40379 (CA) and LAWAL V STATE (2013) LPELR ? 22066 (CA) to buttress the point that any person in the company of a person who while armed commits armed robbery is similarly guilt of the offence. Counsel also contended that the attempt by the appellant to rely on some portions of his extra judicial statement and discard the other part is unacceptable in law. Counsel referred to the case of OKORIE V UNAKALAMBA & ANOR (2013) LPELR ? 22508 (CA) to submit that the Court cannot pick and choose the evidence to rely on. Counsel urged the Court to dismiss the appeal and affirm the decision of the lower Court.

I have read the records of appeal including the judgment of the lower Court against which this appeal lies. I have also read the briefs of argument of both parties to

this appeal. What stands out very clearly therefrom is that the appellant is agreed with the respondent on three issues which constitute the elements/ingredients of the offence of armed robbery. These are that on the night in question, 8th April, 2015 there was a robbery against the victim, one Dosunmu Stephen, the complainant in the suit in the Court below of his two mobile phones in which the robbers were armed. The appellant is also agreed that he was at the scene of crime but only to convey the deceased robber at the direction of the owner of the motorbike which he hired for commercial purposes, one Daddy Gold. That he was not there to commit robbery and did not know what the deceased robber was going to do at the scene when he agreed to carry him. In other words the crux of the appellants case on appeal is that the prosecution failed to prove that he had the necessary mens rea to have been found liable for the offence of armed robbery. This ties in very neatly with the third ingredient of the offence of armed robbery: that is whether the appellant was one of the three robbers that attacked and robbed Dosunmu Stephen on the night in question and as

found by the lower Court who convicted him.

Both parties having admitted that two of the three ingredients had been proved by the prosecution, I need not dwell on those any more in this judgement. In other words, I uphold the submissions of the respondent?s counsel that these two ingredients were properly established by the uncontradicted and uncontroverted testimonies of PW1 and PW2 and corroborated by the evidence in chief and in cross examination of the appellant.

The vital question to ask and answer is, was the appellant one of the three robbers that PW1 alleged attacked him on the night in question? The testimony of PW1, the victim of the robbery as more specifically captured at pages 7-19 of the records is that he was attacked by three persons on the night of 8th April, 2015. His evidence was that he was on his way home from a rally at the government house and had gotten to the front of Mr. Asiwaju?s house where he normally parked his car. That he saw a bike with 3 persons on it and two alighted from the bike and accosted him. That the third person who was on the bike (later identified as the appellant) fired at him in the course of

the attack. That he shot at the appellant who fell down with the gun he was holding. The evidence of PW1 was direct, consistent and unequivocal. He described all the three persons that had attacked him. The masked one was the one that followed him to the trunk of his car to collect money but met his waterloo when PW1, himself a security personnel shot him point blank. The clear evidence of PW1 in respect of the three robbers is that the masked one who followed him to the back of the car to collect money from the trunk was shot dead. The one who guarded the front of the car and fired a warning shot at his windscreen on realizing that their victim was armed and had shot their leader ran away obviously with his own gun and remains at large till date. The third robber was the one guarding the back of the car at the time of the shootout which happened at the back of the car too by the trunk. After witnessing the masked robber shot by the victim (PW1), the appellant who was at the back tried to shoot his way out of the situation but missed PW1 who however shot and injured him.

To my mind the real issue for determination in this appeal is therefore whether the

learned trial judge was right to have believed the clear, direct, unequivocal, uncontradicted and uncontroverted evidence of PW1 which not only fixed the appellant at the scene of crime but also showed him as the one who carried the other two robbers to the scene on his motorcycle. The evidence also portrayed him as being armed, being a member of the gang of three robbers that attacked PW1 and that he also fired a shot at the victim. And there are the ancillary issues of whether the place was too dark and the appellant too far for the victim to have identified him.
In trying to resolve these issues, I went back to the printed records particularly page 19. This is the page that contains the cross examination of the principal witness for the prosecution, PW1 who doubled as the victim in this case. This cross examination never shook the credibility of PW1 to the fact that the appellant was at the scene of crime but that he was also armed like the two other co-robbers. There is no doubt that throughout the testimony of PW1, the appellant was referred to as the one at the back. So when in cross examination at page 19 line 12 PW1 stated that ?the one at

the back also had a gun ….. The man on the motorcycle was pinned down at the scene. He was apprehended with the gun on him, he was without an iota of doubt referring to the appellant.
The appellant tried in his address to make issues out of this testimony. First they argued that the evidence of PW1 that the appellant was arrested with the gun on him contradicts the evidence of PW2 who stated that the two guns were recovered beside the deceased robber. The testimony of PW2 is at pages 21 through to 26. At page 22 in examination in chief PW2 stated in lines 11-12 thus ?The scene was searched and two locally made guns were recovered at the scene where the defendant was and another dead and on the ground.? In cross examination at page 26 line 13 PW2 stated thus: – ?I did not recover the two guns on the deceased body.? This is the contradiction that the appellant is making heavy weather of. To my mind this is not a material contradiction for which the Court should take cognizance of. Whether the gun(s) was/were found on the appellant, by the appellant or at the scene is not the issue.

The real issue is that the fact of finding two guns corroborates the testimony of PW1 that all three robbers were armed. One of them ran away ostensibly with his own gun. The other two had been shot one to death and the other the appellant with an injury. It makes sense that the guns the two were holding would fall down proximate to where they were both shot, i.e. at the back of the car. It is illogical to suggest in my view that the two guns belonged to or were held by the deceased robber. There is no suggestion of that from the evidence of the prosecution or even that of the defence.
The other contention of the appellant is that he had raised at the outset in Exhibit D the fact that he took the deceased robber to the scene as a passenger on his commercial motorcycle not knowing his mission and on the instruction of one Mr. Daddy Gold the owner of the motor cycle from whom he hired same. Appellant?s counsel referred to the case of AIGBADION V. STATE (2000) 7 NWLR PT 666, 686 to further contend that the failure of the prosecution to investigate this defence of the appellant is fatal to the prosecution?s case especially as the defence is not

unbelievable or improbable. Counsel also referred to the case of OPAYEMI V STATE (1985) 2 NSCC, 921 AT 928. In the latter case, like in the instant case, the prosecution put Exhibit D in evidence making it part of the prosecution?s case. The Supreme Court per Uwais, JSC as he then was held that ?the allegation in Exhibit D that it was Ademola that cut off the hand of PW1, if true, would have had the effect of exonerating the accused from the charge against him. It could also have knocked the bottom of (sic) the prosecution?s case. Therefore, if the prosecution was to be proved beyond reasonable doubt, it became incumbent on the prosecution to call Ademola to deny the allegation made by the accused against him. In this respect, the case is in all fours with R V. ESSIEN (SUPRA). In my opinion therefore, the failure of the prosecution to call Ademola was fatal to their case.?
In the instant case like in OPAYEMI?S case (SUPRA), the prosecution tendered Exhibit D, the statement of the appellant, making it part of the prosecution?s case. But to my mind that is as far as the similarities in the two cases go. In the instant case

it was never the defence of the appellant that it was the said Daddy Gold that was the third member of the three man gang that robbed PW1 on the 8th of April, 2015. His alleged defence was that the said Daddy Gold asked him to go and drop the said deceased robber at the scene of crime. Even from the testimony of the appellant, this was not what he did. I refer to the evidence in chief of DW1 (the appellant) at page 29 of the printed record lines 14-17:-
?Daddy Gold (the hirer) told me to take the motor cycle to Ijoka Road conveying the man called Soldier and I should come back. I took the man to his destination. At Ijoka Road, Oke-Ibele, he ASKED ME TO WAIT, I PARKED SAYING HE WANTED TO PICK SOMETHING—”
Assuming without conceding that Daddy Gold asked the appellant to drop the deceased robber, it is clear from the emphasized and quoted portion of Exhibit D that the appellant was no longer carrying out Daddy Gold?s instruction to drop the deceased robber and go back but was now taking and acting on instructions from the deceased robber since he alleged that he was waiting for him. More importantly is an instruction to commit a

crime or do an illegal act a defence? What is more the conduct of the appellant at the scene of crime establishes the contrary to his allegations. There is no evidence that when he became suspicious he ran away or at least left the scene. The undisputed evidence before the Court is that the appellant waited until shots were exchanged and he was injured. In other words I find the story of the appellant highly unbelievable and improbable. Where this is the case the trial court is not bound to act on it. See the case of MODUPE V STATE (1988) 4 NWLR, PT 87, 130 AT 137 PARAS D-E (cited by the appellant?s counsel). In it the apex Court per Oputa JSC (as he then was) held in part as follows:-
?But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. WHEN THERE IS ONLY ONE VERSION OF AN ESSENTIAL FACT AND THAT VERSION IS NOT PATENTLY AND OBVIOUSLY IMPROBABLE, A TRIAL COURT IS NOT LEFT WITH ANY OPTION THAN TO BELIEVE THAT WHICH HAS NOT BEEN CONTROVERTED OR CONTRADICTED IN ANY WAY.?
Borrowing from this holding, I find that the trial Court was left with no option but to believe the

evidence of the prosecution which is direct, positive, unequivocal, uncontroverted and uncontradicted. Even the evidence of PW1 shows beyond a shadow of doubt that the appellant rode with two other people, the deceased armed robber and the one who fired the warning shot on PW1?s windscreen and remains at large. The evidence showed quite emphatically that the three armed robbers arrived at the scene while PW1 was trying to park his car. Two alighted and approached PW1 who was winding up his car glasses to lock it up. The 3rd robber (the appellant) was stationed at the back of the car ostensibly as stated by PW1 to watch the road. The victim?s phones were collected by the deceased robber who was by the driver?s side. He asked for money. The robber that ran away and remains at large was in the front and had fired a warning shot at the victim?s car. PW1 tricked the deceased robber into believing he had money in the trunk of his car. He probably did but he had his service rifle either there or on him. He was able to get it and he shot the deceased robber dead. The robber in front on realizing that the victim was armed and had shot their

leader ran away. The appellant was not so lucky. He shot at PW1 but missed him. PW1 shot at him, injured him and he fell down. He was treated in the hospital for the injuries. This evidence is corroborated by the gunshot damage to the victims car, the presence of two guns which confirms that the 3rd assailant, the appellant was also armed and the fact that the appellant was shot. It is a settled principle of law that the Court can convict on the evidence of a single witness. See the cases of GIKI V THE STATE (2013) LPELR ? 22722 (SC), ADISA V THE STATE (2014) LPELR 24221 (SC) and the decision of this court in the case of OKAFOR V THE STATE (2017) LPELR – 42860 (CA). I am satisfied that the evidence of PW1 was sufficiently probative of the offences charged. The learned trial judge was therefore right in not hesitating to convict upon it as he believed and was satisfied by it. This is more so in this case as the evidence was corroborated in particular materials by the evidence of PW2 and Exhibits A ? A1 and B ? B1. It is evident from this therefore that the contention of the appellant that his mere presence at the scene of crime

only to convey the deceased robber cannot render him guilty of armed robbery cannot hold water. In the case of ORJI V STATE (2008) 10 NWLR PT 1094, 31 AT 54 PARAS F ? G which appellant relied on, the apex Court held that while the mere presence of a person at the scene of crime does not as a matter of law render the person guilty, ?There must be clear evidence that either prior to or at the time of the commission of the offence, the person did something or omitted to do any act such as aiding or abetting to facilitate the commission of the offence.?
The clear evidence of PW1 is that the appellant carried the other two armed robbers to the scene and he was armed. That he kept watch while the deceased tried to rob him for them and he never ran away when the second robber shot at the victim?s vehicle?s windscreen show that either the appellant was part of the gang ab initio or that he aided or facilitated the commission of the robbery. In other words the appellant in the circumstances of this case cannot be said to be an innocent by stander or a victim of circumstances. He was an active participant in the crime as proved by the

evidence adduced by the prosecution which remained unshaken in cross examination.
The learned counsel made allusion to the fact that the prosecution did not prove mens rea of the appellant. He contended that the appellant only conveyed somebody to the scene of crime without knowing the mission of the person he conveyed. That the appellant cannot be criminally liable for the offence for which he formed no opinion or lacked motive to commit. In other words that mens rea was not established. In the case of UMAR V THE STATE (2014) LPELR ? 23190 (SC) the Court held that: ?It is now settled that what is relevant in our criminal law is that the act of the accused person which resulted in the death of the deceased must be unlawful. The mens rea, or malice aforethought no longer governs the criminal responsibility of the accused person as they are common law concepts. Motive is also said to be irrelevant except where if proved, strengthens the case of the prosecution. SeeADEKUNLE V THE STATE (SUPRA) per Ogbuagu JSC, NWALI V THE STATE (1991) 5 SCN, 14. As neatly put in the decision of this Court in the case of MUSA V THE STATE (2013) LPELR ?

21866 (CA): ?Now mens rea is wrapped up in the doctrine that a person desires the probable consequences of his action?. See also the more recent Supreme Court case of IDAGU V THE STATE (2018) LPELR ? 44343 (SC).
The direct and positive evidence of the prosecution in this case is that the appellant conveyed two other persons to the scene of crime on his motorcycle. All three of them were armed. They robbed the victim of his two phones and were trying to rob him of money when he shot one dead and shot and injured the appellant, the third one running away in the process. The evidence is also that the appellant and two other of his colleagues were each armed with a gun. That the appellant and the robber still at large had each fired their gun at the victim?s car and victim respectfully. In the face of this evidence, I find that the series of allegations made by the appellant in this appeal are of no moment. They do not amount to any known defence in law that will justify this Court to disturb the conviction of the appellant by the Court below. In other words, I find that there is no merit in this appeal. It fails and I accordingly

dismiss it. Consequently the decision of Hon. Justice S. A. Bola delivered on the 24th January, 2018 convicting and sentencing the appellant for armed robbery is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A. : I have read in draft before now the lead judgment so eloquently articulated by my learned brother, Patricia Ajuma Mahmoud, JCA in this appeal. The capture and appreciation of the facts, the applicable position of the law and the conclusion arrived at in dismissing this appeal is unassailable.

I concur in this impeccable decision and affirm the trial Court’s decision and also dismiss the appeal.

RIDWAN MAIWADA ABDULLAHI, J.C.A. : I had the privilege of reading in draft, the lead judgment of my Learned brother PATRICIA AJUMA MAHMOUD, JCA just delivered. I agree with the reasoning therein and the conclusion reached thereat. The appeal is devoid of any merit and lacking in substance. Accordingly, I too will dismiss the Appeal. I shall make some comments in support thereof. The appellant was charged for the offence of armed robbery, contrary to and punishable under Section 1 (2) (b) and 2 of the

Robbery and Firearms (special provisions) Act Cap R 11, Law of the Federation of Nigeria, 2004. The lower Court found the appellant guilty as charged, convicted and sentenced him to death.

A robbery is said to be armed robbery when the robbery is committed by a person carrying a dangerous weapon or when the thief is accompanied by another person carrying a dangerous weapon. The essential elements of armed robbery are:
a. That there was a robbery or series of robberies.
b. That the robbery was with arms; and,
c. That the accused person was the armed robber or one of the armed robbers- See ALABI V STATE (1993) 7 NWLR (pt 307) 511, BELLO V STATE (2007) 10 NWLR (pt 1043) 564 OSETOLA V STATE (2012) 17 NWLR (pt 1329) 343, 251, ADEKOYA V STATE (2017) 7 NWLR (Pt 1565) 343.
In the instant case, it was conceded by the both sides that there was robbery and the robbery was an armed robbery. The crux of the appellant’s counsel is that the appellant never carried a gun and that the allegation that he was holding a gun was not proved beyond reasonable doubt. The law is that it is not the requirement of the law that all the accused

person must be armed with the dangerous weapon, the offence is complete once an offensive weapon is used by either of the accused person.
The facts of this case, as can be seen from the evidence before the Court show that the appellant and his co-accused were armed with guns and indeed robbed PWI, therefore his contention that he was not holding or carried a gun is out of place as he was found to be one of the armed robbers.
?
For these reasons and the fuller one able stated in the lead Judgment, I equally dismiss this appeal and affirm the Judgment of the Lower Court.

Appearances:

Mr. M. O. Folorunsho with him, Mr. A. M. AbbasFor Appellant(s)

Mr. R. P. Olatubora with him, Mr. D. P. FadamijoFor Respondent(s)

Appearances

Mr. M. O. Folorunsho with him, Mr. A. M. AbbasFor Appellant

AND

Mr. R. P. Olatubora with him, Mr. D. P. FadamijoFor Respondent