ANIEKWE v. STATE (2020)

ANIEKWE v. STATE

(2020)LCN/14553(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Monday, August 03, 2020

CA/AW/92C/2016

RATIO

PLEADINGS: PROOF BEYOND REASONABLE DOUBT

The law is trite that in all criminal cases, one of which is armed robbery, the onus is on the prosecution to prove beyond reasonable doubt that it is the accused that committed the crime. At the outset, I have to remind myself of the trite position of the law that proof beyond reasonable doubt did not mean proof beyond every shadow of doubt. See STEPHEN v. THE STATE (2013) LPELR – 20178 (SC); AKOGWU v. THE STATE (2012) LPELR – 22846 (CA). In MANU GALADIMA v. THE STATE (2012) LPELR – 15530 (SC) the apex Court held thus:
“It is also significant to re-iterate that the use of the phrase “proof beyond reasonable doubt” does not necessarily mean “proof beyond the shadow of doubt.” Per Ogunbiyi, JSC.
The Supreme Court further elucidated this principle in NWATURUOCHA v. THE STATE (2011) LPELR – 8119 (SC) when it held thus:
“Proof beyond reasonable doubt does not means proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.” Per Fabiyi, JSC. Per BITRUS GYARAZAMA SANGA, J.C.A.

RATIO

PLEADINGS: INGREDIENTS OF ARMED ROBBERY

The law is trite that for the prosecution to succeed in proving a case of Armed Robbery pursuant to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Vol. 14, LFN, 2004 it must established the following ingredients:
1. That there was armed robbery or series of robberies.
2. That the robbers were armed.
3. That the accused participated in the armed robbery.
See:OLAOYE v. STATE(2018) 8 NWLR (pt. 1621) 281. The Supreme Court also held inOLAOYE v. STATE(supra) that for the prosecution to succeed in proof of the guilt of the accused person it must rely on either or all of the following:
1. The confession to succeed in proof of the guilt of the accused; or

Circumstantial evidence; or
3. Direct evidence.
In ONYEDIKACHI OSUAGWU v. THE STATE (2016) LPELR 40836 (SC) the Supreme Court held thus:
“it is no longer in doubt that case law has identified these constitutive ingredients of the offence of armed robbery, namely, that there was a robbery or series of robberies; that the robbers were armed and that the accused persons committed the said offence, SUBERU v. THE STATE (2010) 8 NWLR (pt. 1197) 586;NWACHUKWU v. THE STATE (1985) 1 NWLR (pt. 11) 218; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 551….” Per NWEZE, JSC.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

EKENE ANIEKWE APPELANT(S)

And

THE STATE RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant and one Sunday Obi were arraigned before the High Court of Anambra State, Aguata Judicial Division holden at Ekwulobia, P. C. Obiorah J., presiding in charge No. AG/07c/2013 on a one count charge of Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The Particulars of the offence are:
“Ekene Aniekwe and Sunday Obi, on the 29th day of February, 2012, at Ifite-Ezinifite in Aguata Judicial Division being armed with firearms to wit; gun, robbed one Chioma Egwuagu of her black berry handset valued at N8,000.00 and thereby committed an offence.” (page 3 of the record of appeal).

On 23rd July, 3013 when the Appellant and his co-accused were arraigned they pleaded “Not guilty” to the charge. On 25/3/2014 trial commenced. P.W.1 is Chioma Egwuagu who testified that on 29/2/2012 she was at her shop at OyeUga when she received a call from an unknown male voice who asked if she is Chioma and she answered that she is. The caller told her to

“run back to our house because my brother gave him a message for me. I told the caller to come to Oye market as I was attending to customers and that he should call me on getting to the market so that I can direct him to my shop. He became angry saying the he has labored to locate my house and I am asking him to come to Oye market and that he will go back with my brothers message. I then asked him to wait and that I was coming to meet him.”

That she rushed home, opened the gate and saw the Appellant. He asked if she is Chioma and she said yes. That:
“As I called my child to give him my phone to charge for me the 1st Defendant pointed a gun to my neck asked me to hands up and give him the phone. I gave him the phone. The 1st defendant pulled the trigger of the gun to shoot me but the gun did not fire, and he started trying to fire the gun. At that point I ran away through the back gate which my children used in running away. The 1st defendant was not arrested on that day. He was arrested on 20th March, 2012.”

That on 20/3/2012 her father was taking her children to school when her son, who witnessed the robbery on

29/2/2012, saw the Appellant and told his grandfather that he is “the person who came to our house to rob and my father got the town security to arrest him.” That the town security a.k.a Vigilante, handed the Appellant to the police. That she earlier reported the incident to the police on the day it happened. That in the course of their investigation the police recovered her phone from the appellant. P.W.1 displayed the phone to the Court and said: “The police released the phone to me and asked me to keep but to produce it if required as exhibit in the Court.” That she signed a bond before the phone was released to her. She displayed same and learned counsel to the prosecution applied to tender it in evidence. It was admitted in evidence by the learned trial Judge and marked as Exhibit ‘A’ and the Black berry phone was also admitted in evidence and marked as Exhibit ‘B’ (the testimony of PW1 is at pages 19 – 24 of the Records).

P.W.2 entered the witness box on 10/7/2017. He is Sergeant Augustine Enejere Force No. 182074 attached to the Special Anti Robbery Squad (SARS) Neni Unit. He took down the

Confessional Statement of the appellant. Learned counsel to the prosecution applied to tender the said statement in evidence but learned counsel to the accused persons objected and the learned trial Judge ordered for Trial-within-Trial. Witnesses testified for both sides and thereafter learned counsel filed their respective written addresses which were adopted on 5/12/2016. On 26/01/2017, the learned trial Judge delivered his Ruling. (pages 56 – 63 of the record of appeal). He overruled the objection and marked the statements by the two accused persons as Exhibits C and D respectively.

P.W.3 is Sergeant Ogbu Emmanuel Force No. 440664 also attached to SARS Unit Onitsha. He was the Investigating Police Officer, he complied a report after investigation which was tendered in evidence and marked as Exhibit ‘E’.

On 18th July, 2017, the Appellant as 1st Defendant entered the witness box and testified. His testimony-in-chief and under cross-examination is at pages 71 to 74 of the record of appeal.

In his testimony-in-chief he said he was repairing his motorcycle in the mechanic workshop on 23/3/2012 when “SARS people came there

and arrested me.” That he was taken to their office and told he robbed the P.W.1. He denied ever knowing her. That he was beaten and told to mention names of “my fellow offenders.” That: “After beating me they tied me with a rope and hanged me on top of an iron. I was there for almost three hours before they brought me down. They wrote something on a piece of paper and brought to me and asked me to sign. I told them that I could not sign because of what they used in tying my hand. They signed the paper by themselves.” That it was at the police station he first saw P.W.1. Thereafter he was cross-examined. P.W.2 is Sunday Obi, his testimony on 26/9/2017 is at pages 74 -78 of the record of appeal.

Written addresses were ordered to be filed and exchanged by the learned trial Judge and the case was adjourned to 27/11/2017 for adoption of addresses. On 11/12/2017 learned counsel adopted their written addresses and the case was adjourned to 5/3/2018 for judgment. However, judgment (pages 117 -140 of the Records) was delivered on 12th March, 2018. In his judgment, the learned trial Judge reviewed the documentary and oral evidence

adduced before him and held, inter alia, as follows:
“Let me state that I believe that the 1st defendant made exhibit ‘C’ voluntarily. The only reason why I did not admit it as confessional statement, but simply as a statement made by the 1st defendant was due to the fact that Section 13 (2) of the Administration of Criminal Justice Law, 2010 was not complied with but with the positive evidence led by the prosecution, I gave value to the contents of the statement which has been corroborated and strengthened by the evidence of what the search at the compound of the 1st defendant yielded. The result is that I hold that the prosecution satisfactorily proved that the 1st defendant was actually the person who physically robbed PW1.”
“It is trite law that parties to an offence are not limited to those persons who physically and directly carried out the criminal act or omission. By Section 7 (c) and (d) of the Criminal Code, every person who aids another person in committing the offence or who counsels or procures any other person to commit the offence is guilty of the offence. See ISHOLA v. THE STATE (1978) 9 – 10 SC

(Reprint) 59 AND KOLAWOLE v. THE STATE (2015) LPELR – 24400 (SC).”
“By force of this legal provision, the 2nd defendant who procured the 1st defendant and supplied him with the weapon to commit the offence of armed robbery, and who identified Chioma Egwuagu as the target of the armed robbery to the 1st defendant, and who drove the 1st defendant on a motorcycle and dropped him a safe distance from the house of the target, is equally guilty of the offence.”
“In conclusion, I have no doubt whatsoever that the prosecution has proved beyond reasonable doubt the charge against the defendants. The result is that I find the defendants guilty of the offence of armed robbery and they are convicted accordingly.”
“By Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol. 4, Laws of the Federation of Nigeria, 2004, the punishment of the offence is death. It is a matter that does not admit of any discretion by the Honourable Court, such that I may consider the fact that the item robbed was just a handset valued at N8,000.00.
Consequently, the sentence of the Court upon you, Ekene

Aniekwe and Sunday Obi, is that both of you shall be hanged by the neck until you be dead and may the Lord have mercy on you souls.

This decision by the learned trial Judge aggrieved the Appellant (who is awaiting execution at Enugu correctional Centre). He filed a Notice of Appeal containing four grounds of appeal on 25th May, 2018. (pages 141 – 143 of the record of appeal).

The appellant’s brief of argument was prepared by F. O. Aniweta Esq. It was filed on 30/10/2018. Learned counsel to the appellant formulated one issue out of the four grounds of appeal as follows:
Whether the learned trial Judge’s decision, convicting and sentencing the Appellant to death, is not unreasonable and liable to be quashed in view of the conflicting evidence of the prosecution.

The respondent’s brief of argument filed on 10/6/2019 was settled by S.A.M. Ofokansi Esq. (Assistant Director) Ministry of Justice, Otuocha Zonal Office, Anambra State. Learned counsel to the respondent adopted the sole issue canvassed by the Appellant in arguing this appeal.

In his submission while arguing the sole issue for determination, learned

counsel to the appellant submitted that the law is trite that to succeed in gaining conviction in the offence of Armed Robbery, the prosecution must establish that:
a. There was robbery;
b. It was carried out with the use of offensive weapon;
c. The accused person participated in the robbery.

That these ingredients must be proved beyond reasonable doubt before there will be conviction. Cited: ALABI v. STATE (1993) 7 NWLR (pt. 307) 511. Learned counsel then pointed out some alleged discrepancies or conflicts between the statement of the complainant that is P.W.1 and her testimony under cross-examination. That it is obvious that PW1 did not know the appellant who allegedly robbed her since she did not mention his name in her statement. That although the statement of P.W.1 was not tendered in evidence during trial but the learned trial Judge made veiled references to it in his judgment. That the statement of P.W.1, being the initiator of the police investigation, ought to be considered by the trial Court whether it was admitted in evidence or not since the offence charged is a capital offence. That if the lower Court did not consider the

statement made by P.W.1 who is the complainant then it follows that there is no report of the crime to the police since the Court cannot act on nothing. That:
“A key must have ignited a vehicle. Before a sound is heard. Similarly, the police cannot act in vain in charging the Appellant to Court. The trial Court in the same vein, will not act, without the opportunity of seeing and examining the report made to the police, when it was still be fresh in the memory of the initiator.”

Learned counsel urged the Court to hold that the statement of PW1, Chioma Egwuagu, made to the police, at pages 6 of the record of appeal having not disclosed that the appellant will be able to identify the robber who allegedly robbed her, created a doubt as to who her attackers were. Urged the Court to resolve this doubt in favour of the Appellant. That the evidence in chief of P.W.1 at pages 19 and 12 of the record of appeal “sharply and materially contradicted her evidence under cross examination.” Learned counsel “invited” the Court to “examine closely the evidence in chief of P.W.1 and you will see that it is entirely different and

a new story line, made up from the statement to the police at page 6 of the Records and under cross examination.” Learned counsel then pointed out what he term contradictions or omissions between the statement of P.W.1 to the police at page 6 of the Records and her oral testimony under cross-examination.

Learned counsel to the appellant submitted that the evidence in chief of the PW1 was demolished under cross examination. That since her evidence is riddled with contradictions it is not safe for any Court to rely on it. Learned counsel then asked: “which of these stories will the Court believe?
a. Is it that, she the PW1 was the one who rushed to the mechanic and grabbed the Appellant on the neck and people rushed and helped her; or
b. Is it that, the security personnel were the persons who went to the shop and arrested the Appellant and handed him over to the police?, or
c. That the police called her, the PW1 on the phone when they arrested the Appellant?

That it is trite law that where there are material contradictions between the previous statement and the testimony of a witness, both should be disregarded. Cited:

STATE v. JOHN AYENI (1998)1 LRCN CC (Vol. 1) 2-5 at 24. Learned counsel to the Appellant urged the Court to reject the evidence of PW1 on this issue.

In a similar vein, learned counsel to the appellant submitted that the evidence of PW3 “is another straw that broke the camel’s back. It is completely doubtful and unreliable.” Learned counsel quoted some portions of the testimony of PW3 and analysed it vis-a-vis the testimony of PW1 and her statement to the police and submitted that the testimony of PW3 during trial-within-trial and during the trial differs. Learned counsel submitted thus:
“Your Lordships are invited to scrutinize the statement of the PW3, Sergeant Emmanuel Ogbu. Each piece of his evidence conflicted with the other. He is not stable at all. In one breath, he would say a thing, and in another breath he would say the other.”

Learned counsel also raised some questions on the testimony of PW3. That if there is any doubt in the evidence of the prosecution it ought to be resolved in favour of the accused person. That the law is that it is better to allow nine (9) guilty men to go free than to convict and punish

one innocent man. Cited: ALONU v. STATE (2009) 4 KLR (pt. 265) where the Court held that any contradiction in the prosecution witnesses should always be resolved in favour of the accused. On the locally made gun recovered in the appellant’s house which was allegedly used in the robbery, learned counsel submitted that the law requires that there must be a nexus between the gun and the robber. That in her testimony P.W.1 was not shown the gun (which was already in evidence and marked as Exhibit P3) to identify it as the one used by the appellant in robbing her. That there is no proof that it was even the one used in the alleged robbery. That no evidence that the gun was tested by the armourer to ascertain whether it was in good condition or not, “so as to match the evidence that, the gun pointed at PW1; refused to fire.”

Learned counsel to the appellant also submitted that the crime was allegedly committed on 29/2/2012 and PW1 claimed she reported the crime to the police on that date. But the police Investigation Report (Exhibit E) stated that PW1 first reported the incident to their office on 23/3/2012. Learned counsel then asked:

Why did the PW1 have to lie about when she reported the case to the police?
b. Why did the Police assist her in covering up the time the incident was reported?

That the only explanation for this is that the charge was trumped up. That it took the PW1 almost a month to report that she was robbed. That the actual position was that there was no robbery. On identifying the appellant, learned counsel submitted that it was done almost one month after the incident when her father was taking her 10 years old son to school when the boy identified the appellant, told his grandfather who called PW1 and she rushed to the mechanic workshop where the appellant’s motorcycle was being repaired, grabbed him and raised an alarm that led to the arrest of the Appellant.

Learned counsel also submitted that the learned trial Judge was “one sided.” That he did not evaluate the evidence before him. That there is no evidence before the lower Court to show that the appellant was the one who put a phone call to the PW1 since no call log from any of the service providers was displayed before the lower Court, that “these are pieces of evidence that

requires corroboration.” Learned counsel also submitted that the PW1’s 10 years old son who identified the appellant to his grandfather was a vital witness that ought to have been called by the prosecution to testify. That that should have corroborated the evidence of PW1. That corroborative evidence is evidence which shows that the crime has been committed and by the accused. Cited:ODOFIN BELLO v. STATE (1966) 1 ANLR 217. That where a confessional statement is denied, the trial Court must order for a trial-within-trial, and the Court is duty bound to rule one way or the other after the trial-within-trial. That a trial Court ought to seek corroborative evidence outside the confessional statement where the accused person denies making the statement. Cited: DELE v. STATE (2011) 1 NWLR (pt. 1229) 508. Learned counsel to the appellant submitted that the evidence of PW2 should best be said to be hearsay evidence as it was speculative. That that is why it differs from the evidence of PW1 and PW3. That it is trite law that Courts should not embark on speculation on “wholly unsupported evidence.” Cited: OKEKE v. STATE (2003) 15 NWLR (pt. 842).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel to the appellant submitted finally that in all cases attracting capital punishment, it is incumbent on the trial Court to consider all the defences put up by the accused person, express or implied; however trivial the defence is, it must be looked into; however fanciful, stupid or doubtful it is, it deserves consideration. Cited: NJOKU v. STATE (1993) 6 NWLR (pt. 299) 1; ANI v. STATE (2003) 11 NWLR (pt. 830) 149. He urged the Court to hold that the prosecution did not prove its case beyond reasonable doubt and to set aside the decision by the lower Court and to discharge and acquit the appellant.

In his submission while arguing this case, learned counsel to the Respondent stated that for the prosecution to succeed in proving a case of armed robbery under Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, it has the task of establishing the following ingredients:
1. That there was armed robbery or series of robberies
2. That the robbers were armed.
3. That the accused participated in the armed robbery.

Learned counsel cited the case of OLAOYE v. STATE (2018) 8 NWLR (pt. 1621) 281.

That to prove the foregoing elements, the standard of proof required is beyond reasonable doubt. Once the proof drowns the presumption of innocence of the accused, then the Court is entitled to convict, although there could exist a shadow of doubt. Cited: NWEZE v. STATE (2018) 6 NWLR (pt. 1615) 197 at 200-201.

Learned counsel to the respondent submitted further that for the prosecution to succeed in proof of the guilt of the accused, it is trite for him to rely on:
1. The confessional statement of the accused; or
2. Circumstantial evidence.
3. Direct evidence.
Cited: OLAOYE v. STATE (supra); OSUAGWU v. STATE (2016) 16 NWLR (pt. 1537) at 31.

That what makes an offence armed robbery is the use of firearm as offensive weapon. That the proof of the offence consists of proof that property has been fraudulently taken by an assault or by putting the fear of harm or bodily injury into the victim. That for the act to constitute robbery there must be the experience by the victim of fear and intimidation brought about by apprehension of possible violence to the person before the robbery. That in the instant case the prosecution was able to prove

through the evidence of PW1 that there was robbery in her testimony in chief. Learned counsel quoted the testimony of PW1 and submitted further that she was not shaken under cross-examination. Thus the first ingredient of robbery was proved by the respondent.

With respect by the 2nd ingredient of the offence, to wit; that the robbery was an Armed Robbery, learned counsel to the Respondent submitted that the prosecution adduced ample evidence to prove that the robbery was indeed an armed robbery. Learned counsel drew the attention of the Court to the testimonies of PW1, PW2 and Exhibits A, B, C, P3, P4 and P5. He quoted portion of the testimony of PW1 and submitted that the prosecution also tendered Exhibits P5 and P6 (the 2 search warrants); Exhibits C and D (statements of the 2 accused persons); Exhibit P3 (gun used in the robbery) and Exhibit B (the Black berry phone of PW1). That the prosecution was able to prove that the robbery was indeed armed robbery.

On the 3rd ingredient of the offence, learned counsel submitted that in criminal trials, the pertinent question is not that an offence was committed, but who committed the said offence? He

submitted that the evidence adduced by the prosecution during trial point conclusively to the fact that the Defendants were the robbers that robbed PW1 on 29/2/2012 and the learned trial Judge was right to have so held. That PW1 gave direct and unequivocal evidence of what transpired between her and the Appellant. Learned counsel referred the Court to the evidence of PW1 and Exhibit C and D. That PW1 was very precise on the role played by the Appellant in the robbery incident in which her Black berry phone was snatched at gun point. That she also identified the Appellant at the mechanic workshop where he went to repair his motorcycle. That her Black berry phone was recovered in the Appellant’s house after a search warrant was executed. That aside the confessional statement of the accused persons, all documents and items were tendered and admitted in evidence without objection by the accused persons.

That the law is trite that where a person is found in possession of recently stolen items, then the doctrine of Recent possession within the meaning of Section 167 (a) of the Evidence Act is applicable. Cited: ISIBOR v. STATE (2002) 4 NWLR (pt. 758) 74 at

That the appellant did not give any explanation as to Exhibit B (Black berry phone) found in his house. That strengthened the prosecution’s case: That the appellant admitted in his statement (Exhibit C), that he robbed PW1 of her phone at gun point and both the gun and the phone were recovered in his house. Learned counsel to the Respondent also replied to the submission by the Appellant’s counsel on the contradictions between the oral and documentary evidence of the PW1, PW2 and PW3 which I considered and will make my findings in respect thereto hereunder. Learned counsel to the Respondent urged on the Court to affirm the decision of the lower Court and dismiss this appeal.FINDING:
The sole issue canvassed by the Appellant and adopted by the Respondent Is:
Whether the learned trial Judge’s decision convicting and sentencing the Appellant to death is not unreasonable and liable to be quashed in view of the conflicting evidence of the prosecution?

I have narrated the submission by learned counsel to the parties in their respective briefs while arguing this issue. I considered the entire gamut of documentary and oral

evidence produced and adduced during trial of this case as contained in the record of appeal. It is beyond doubt that there was robbery perpetrated on the PW1 on 29/2/2012. The main contention between the parties is who robbed PW1?

The prosecution alleged it was the appellant and his co-accused (now convicts) that robbed the complainant to wit, Chioma Egwuagu who in her testimony as PW1 gave graphic details of what happened to her on the said date of the robbery. On his part, the Appellant is vehemently denying liability.

reasonable doubt” does not necessarily mean “proof beyond the shadow of doubt.” Per Ogunbiyi, JSC.
The Supreme Court further elucidated this principle in NWATURUOCHA v. THE STATE (2011) LPELR – 8119 (SC) when it held thus:
“Proof beyond reasonable doubt does not means proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.” Per Fabiyi, JSC.

With this at the back of my mind, I will consider the evidence (documentary and orally) adduced by the prosecution whether they have succeeded in discharging this burden on them beyond reasonable doubt. The first evidence I will consider is that of the main dramatis personae i.e. Chioma Egwuagu who in her testimony at pages 19 – 20 of the record of appeal stated as follows:
“I am a trader dealing in cosmetic. I know the defendants. On 29/2/2012 I was in my shop at OyeUga and I received a phone call. I picked the call and the caller asked me whether I was Chioma and I said yes. He told me

to run back to our house because my brother gave him a message for me. I told the caller to come to Oye market as I was attending to customers and that he should call me on getting to the market so that I can direct him to my shop. He became angry saying that he has labored to locate my house and I am asking him to come to Oye market and that he will go back with my brother’s message. I then asked him to wait and that I was coming to meet him. I rushed back to our house and opened the gate. I entered and saw the 1st defendant. He asked me if I am Chioma and I said yes. As I called my child to give him my phone to charge for me, the 1st defendant pointed a gun to my neck and asked me to hands up and give him the phone. I gave the phone to him. The 1st defendant pulled the trigger of the gun to shoot me, but the gun did not fire and he started trying to fire the gun. At that point I ran away through the back gate which my children used in running away. The 1st defendant was not arrested on that day. He was arrested on 20th March, 2012.
On that day, my father was taking my children to school and my son identified the 1st defendant to my father as the

person who came to our house to rob and my father got the town security to arrest him. The town security handed him over to the police. On that day, I had the encounter with the 1st defendant I reported the incident to the police. The police later recovered my phone from the 1st defendant. The phone is here with me. The police released the phone to me and asked me to keep but to produce it if required as exhibit in the Court. I signed a document for the police before the phone was released to me. This is the document which I signed.”

The document PW1 signed is a Bond which was admitted in evidence as Exhibit ‘A’ while the Blackberry phone which was recovered in the house of the Appellant after a search warrant was executed and a search conducted was marked as Exhibit B. Learned counsel to the Appellant cross-examined PW1 at pages 21 – 24 of the record of appeal and the evidence by the said PW1 was not punctured. I therefore believe the said testimony by PW1 as a true reflection of what happened on 29/2/2012.

The Appellant as 1st Defendant was arrested by the police and he volunteered a statement on 23/3/2012. He confessed

being an armed robber and mentioned the names of his gang members which include the 2nd defendant. His statement at pages 12 of the record of appeal was admitted in evidence, after a trial-within-trial, and marked as Exhibit C. A search of the house of the Appellant led to the recovery of the locally made pistol used in robbing PW1. It was marked as Exhibit P3 while the live cartridge was marked as Exhibit P4 at pages 32 of the record of appeal.

Circumstantial evidence; or
3. Direct evidence.
In ONYEDIKACHI OSUAGWU v. THE STATE (2016) LPELR 40836 (SC) the Supreme Court held thus:
“it is no longer in doubt that case law has identified these constitutive ingredients of the offence of armed robbery, namely, that there was a robbery or series of robberies; that the robbers were armed and that the accused persons committed the said offence, SUBERU v. THE STATE (2010) 8 NWLR (pt. 1197) 586;NWACHUKWU v. THE STATE (1985) 1 NWLR (pt. 11) 218; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 551….” Per NWEZE, JSC.

As I stated above, it is clear as crystal that there was robbery on 29/2/2012; the robber in this case the appellant was armed; and it was the Appellant who committed the said offence of robbery. My stand is based on the clear and unequivocal role played by the Appellant in the commission of the crime. PW1 and her 10years old child identified the appellant because the robbery took place in broad daylight at about 1:30 pm. Her Blackberry phone which was snatched by the appellant and the gun he used in committing the crime were recovered in his house, admitted in evidence

by the learned trial Judge and marked as Exhibits B and P3 respectively. The evidence by PW1 was not challenged during cross examination. I therefore discountenanced the entire submission by learned counsel to the Appellant in their brief of argument. I hold that the prosecution proved their case at the lower Court against the said Appellant beyond reasonable doubt. The judgment by the lower Court in Charge No. AG/07C/2013 delivered on 12th March, 2018 is affirmed by me.
This appeal lacks merit and it is hereby dismissed.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the judgment delivered by my learned brother, B.G. SANGA, JCA. I agree with the reasons therein advanced to arrive at the final conclusion that this appeal be dismissed.
Accordingly, the judgment of the Aguata division of the High Court of Anambra State in charge NO AG/07C/2013 delivered on the 12th of March, 2018 is hereby affirmed.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also affirm the judgment of the Court below, delivered on

the 12th March, 2018.

Appearances:

J. Obasi Esq. For Appellant(s)

A. M. Ofokansi Esq. For Respondent(s)