ECHIANU v. COP & ANOR (2020)

ECHIANU v. COP & ANOR

(2020)LCN/14866(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/CR/315/2020

RATIO

CRIMINAL TRIAL: WHEN WILL A DEFENDANT BE TAKEN TO HAVE PUT HIMSELF ON TRIAL

What is important and crucial is that the offence contained in the count or charge or information is known to law and the Defendant is not misled by the defect or anomaly in the charge. Once the Defendant understands or appreciates the count or charge against him and he pleads to it, the Defendant is taken to have put himself on trial and adequately understands the charge or count against him. If he has any complaint against the charge he must timeously take objection to it or challenge the validity of the charge when the charge is read to him to take his plea. Where a Defendant or Accused or his learned Counsel fails to take an early objection to the charge or count, he cannot take liberty to raise any challenge or complaints against the charge at the Appellate Court. PER PETER OLABISI IGE, J.C.A.
CRIMINAL PROCEDURE: EFFECT OF CONTRAVENTION OF CHARGES ON THE RULES OF DRAFTING CHARGES

Occasionally however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; misjoinder of offenders and misjoinder of offences, see generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited, 2004) 188; O. Doherty, Criminal Procedure in Nigeria Law and Practice (London, Blackstone Press Limited, 1999) 227; O. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd, 1998). This is the context in which Section 383 (supra) has to be viewed.
By Section 383 (supra), any objection to a charge for any formal defect (surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea. See Ogunye v. The State (1999) 5 NWLR (Pt.604) 548; Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Okeke v. The State (2003) S SCM 131, 185-186, (2003) 15 NWLR (Pt. 842) 25; Solola and Anor v. The State(2005) 6 SCM 137, 147, (2005) 11 NWLR (Pt. 937) 460; Okewu v. F.R.N (2012) 9 NWLR (Pt. 1305) 237, 369.
Where he fails to do so, he is presumed to have understood the charge preferred against him. Ogunye v. The State (supra); Adeniji v. The State (supra); Okeke v. The State (supra); Solola and Anor v. The State (supra); Okewu v. FRN (supra).
Simply put therefore, the learned DPP for the respondent was right in his submission that since counsel for the appellant did not raise any objection to the alleged defect in the charge, he cannot now canvass it here. Uwaekweghinya v. State (supra); Timothy v. F.R.N (2013) 4 NWLR (Pt. 1344) 213,231-243; Agbo v. State (supra).”
2. CHUKWUDI OYEM VS. FRN (2019) 11 NWLR (PART 1683) 333 AT 347F – 348 A – B per ABUJI, JSC who said:
“The appellant learned counsel weakly stated that the appellant was wrongly charged under Section 14(b) of the NDLEA Act instead of Section 11 (b). I think he is fully aware of the law that is why he did not make any issue or argument out of it nor is he asking this honourable Court to tamper with the lower Court’s judgment because of it. Nevertheless, without the risk of superfluity, the law is settled that it does not matter under which section of the law, the definition or the penal section, on appellant is charged and convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even on entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial been rectified by the trial Court. See Per Muhammad, J.S.C in Okpa v. State (2017) LPELR-42205 (SC), (2017) 15 NWLR (Pt. 1587) 1.”
At page 354 F – H to 355 A per M. D. MUHAMMAD, JSC who said:
“Appellant counsel’s further contention that the concurrent conviction of the two Courts below are not sustainable because of their being placed under the wrong section of the law, learned respondent’s counsel is again right must equally be discountenanced.
In Akinola Olatunbosun v. The State (2013) LPELR – 20939 (SC), (2013) 17 NWLR (Pt. 1382) 167 this Court per Aka’ahs, JSC restated the principle thus-
“The bone of contention in the dissenting judgment by Denton-West JCA is anchored on the view that the appellant was charged under the punishment section and not the section that created the offence. That argument will hold water only if the offence for which the appellant was convicted is not known to law. the facts on which an appellant was convicted are known to law, the fact that the accused was charged Linder a wrong law or section of the law, will not lead to his acquittal.” PER PETER OLABISI IGE, J.C.A.
CRIMINAL LAW: INGREDIENTS OF SUSTAINING THE OFFENCE OF ARMED ROBBERY

In order to sustain the offence of Armed Robbery, the prosecution must establish the following namely:
(a) That there was a robbery or series of robberies;
(b) That each or any of the robbers was armed at the time of robbery operation;
(c) That the accused was one of the robbers or had taken part in the robbery operations.
See 1. THE STATE V SANI IBRAHIM (2019) 8 NWLR (PART 1674) 294 AT 326 E – H per KEKERE-EKUN, JSC who said:-
“In a charge for armed robbery, the prosecution must prove the following essential ingredients:
(a) That there was a robbery or series of robberies;
(b) That each robbery was an armed robbery; and
(c) That the accused person was the robber or one of those who participated in the armed robbery.”
2. USMAN SAMINU (aka DANKO) VS THE STATE (2019) 11 NWLR (PART 1683) 254 AT 2691-1 TO 270 A – F per ARIWOOLA, JSC who held:-
“Robbery generally is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Akeem Agboola v. The State (2013) LPELR 20652; (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM 157; (2013) All FWLR (Pt.704) 139; (2013) 54 NSCQR (Pt. 11) 1162; (2013) 5 SCNJ 653.
It is trite law that for the prosecution to establish the offence of armed robbery, the following are required to be proved:-
(a) That there was infact a robbery or series of robberies;
(b) That the robbery was an armed robbery;
(c) That the accused person was the armed robber or one of the armed robbers.
See; Bozin v. State (1985) 2 NWLR (Pt.8) 465; Suberu v The State (2010) 8 NWLR (Pt. 1197) 586: Ani v The State (2003) 11 NWLR (Pt. 830) 142; Ani v The State (2010) 10 NWLR (Pt. 1201) 190 e 244 B – b; Olayinka v The State (2007) 9 NWLR (Pt. 1040) 561. PER PETER OLABISI IGE, J.C.A.

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED

The law is settled that there are various ways of proving the guilt of an accused person standing trial. It can be proved by:
Confessional statement of an accused person:
Evidence of eye witness of the crime;
Circumstantial evidence.
See; Agboola v. The State (supra);Nigerian Navy & Ors v. Lambert (2007) 18 NWLR (Pt.1066) 300; Alufohai v. The State (2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172. PER PETER OLABISI IGE, J.C.A.
CRIMINAL LAW: PRESUMPTION OF INNOCENCE OF AN ACCUSED

Under our criminal justice system, an accused person is presumed innocent until the prosecution prove his guilt. Hence, an accused is not expected to prove his innocence before the law Court. It is clearly the duty of the prosecution to establish the charge against an accused beyond reasonable doubt. See; Uche Williams v. The State (1992) 10 SCNJ 74; (1992) 8 NWLR (Pt. 261) 515; (1992) LPELR- 3492.”
3. CHIBUIKE OFORDIKE VS THE STATE (2019) 3 SCM 132 AT 156 F -H per OKORO, JSC.
4. DANIEL JIYA VS THE STATE (2020) 13 NWLR (PART 1740) 159 AT 190 B – C per NGWUTA, JSC. PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

OBINNA ECHIANU APPELANT(S)

And

1. COMMISSIONER OF POLICE 2. NNOROM EVERLY (DISCHARGED BY ORDER OF COURT) RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By an Amended charge dated and filed on the 10th November, 2017, the Appellant and one other person were arraigned before the High Court Federal Capital Territory Abuja Judicial Division.

The said charge containing five counts reads as follows:
COUNT 1
That you Obinna Echicnu, male, 42 yrs old of No. 13 Eziama Street, Aba, Abia State and you Nnorom Everly, male, 27 years old of Umuerim, Nekede Polytechnic, Owerri, Imo State on or about the 25th day of December, 2016 at about 19:00 hours at Gosa Pedestrian Bridge, Airport Road, Abuja within the jurisdiction of this Honourable Court agreed and conspired among yourselves to commit criminal offence to wit: Criminal Conspiracy to commit offences of Armed Robbery and Culpable Homicide Punishable with death; in that on the said date, while armed with one Revolver Pistol and Thirty Three live Ammunitions (Bullets), robbed one Mr. Inalegwu Edwin Ali (now deceased) mate, of Wuse 2, Abuja of his Nissan Almera Vehicle, Blue in Colour with Registration Number KUJ 627 LC and One Gionee 5 GSM Phone; that after both

of you successfully robbed the deceased, you Obinna Echianu shot him in the head thereby causing his death. You both thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act LFN 2004.
COUNT 2
That you Obinna Echianu, male, 42 years old of No. 13 Eziama Street, Aba, Abia State and you Nnorom Everly, male, 27 years old of Umuerim, Nekede Polytechnic, Owerri, Imo State on or about the 25th day of December, 2016 at about 19:00 hours at Gosa Pedestrian Bridge, Airport Road, Abuja within the jurisdiction of this Honourable Court agreed and conspired among yourselves to commit criminal offence to wit: Armed Robbery; in that on the said date, while armed with one Revolver Pistol and Thirty Three live Ammunitions (Bullets), you both robbed one Mr. Inalegwu Edwin Ali (now deceased) male, of Wuse 2, Abuja of his Nissan Almera Vehicle, Blue in Colour with Registration Number KUJ 627 LC and one Gionee 5 GSM Phone. You both thereby committed an offence punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provision) Act LFN 2004.
COUNT 3
That you Obinna Echianu, male, 42

years old of No. 13 Eziama Street, Aba, Abio on or about the 25th day of December, 2016 at about 19:00 hours at Gosa Pedestrian Bridge, Airport Road, Abuja within the jurisdiction of this Honourable Court committed criminal offence to wit: Culpable Homicide Punishable with Death; in that on the said date, you intentionally caused the death of one Mr. Inategwu Edwin Ali of Wuse 2, Abuja when you shot him in the head with one Magnum Revolver Pistol with No. 160/18708 knowingly that death is the probable result of your action. You thereby committed an offence punishable under Section 221 of the Penal Code Law.
COUNT 4
That you Obinna Echianu, male, 42 years old of No. 13 Eziama Street, Aba, Abia State on or about the 1st day of March, 2017 at about 11 hours at Apo Mechanic Village, Abuja within the jurisdiction of this Honourable Court committed criminal offence to wit: Unlawful Possession of Firearm; in that on the said date, without lawful excuse, you had in your possession one Magnum Revolver Pistol with No. 160/18708 which you used and shot to death one Mr. Inalegwu Edwin Ali of Wuse 2, Abuja on the 25th December, 2016 at Gosa Pedestrian Bridge,

Airport Road, Abuja. You thereby committed an offence punishable under Section 27 (1) (a) (i) of the Firearms Act, CAP F28, LFN 2004.
COUNT 5
That you Obinna Echianu, 42 years old of No. 13 Eziomo Street, Aba, Abia State on or about the 1st day of March, 2017 at about 11 hours at Apo Mechanic Village, Abuja within the jurisdiction of this Honourable Court committed a criminal offence to wit: Unlawful Possession of Live Ammunitions (Bullets); in that on the said date, without lawful excuse, you had in your possession 33 live ammunitions (bullets). You thereby committed an offence punishable under Section 27 (1) (a) (ii) of the Firearms Act. CAP F28, LFN 2004.

The Appellant and the Co-defendant pleaded NOT GUILTY to each of the Counts contained in the charge and the matter proceeded to trial. The Prosecution called six witnesses and tendered exhibits. After the adoption of Written Addresses the Learned trial Judge, HON. JUSTICE U. P. KEKEMEKE delivered judgment on the matter on 6th day of February, 2020. The 2nd Defendant in the charge one NNOROM EVERLY was discharged. He convicted the Appellant on Counts 2 and 3 of the charge.

The Learned Trial Judge found on pages 55 – 58 as follows:
“However, all the circumstance proved by the Prosecution are consistent with the hypothesis that 1st Defendant is guilty and at the same time. It is inconsistent with the hypothesis that he is innocent on such as to exclude every other reasonable or rational hypothesis. In respect of the 2nd Defendant, the 3rd Count was also not prove against him beyond reasonable doubt.
The 4th and 5th Counts are unlawful possession of firearm i.e. magnum Revolver Pistol and 33 rounds of live ammunitions by the 1st Defendant.
The evidence is that the Exhibit F are recovered from the 1st Defendant while driving in his car, Exhibit G1. He confessed orally to have bought some in Spain. Although there is no evidence to suggest that he obtained a licence to use firearms. There is inconsistency as to where Exhibit ‘F” was recovered from. The Charge states, they are recovered in his house at 13 Eziomc Street, Aba. The evidence is that the Exhibit F were recovered in his car at APO.
In the circumstance, the Prosecution has failed to prove the offences of unlawful possession as contained Counts 4 and 5 beyond reasonable doubt.

In totality, it is my humble view and I so hold that the Prosecution has proved Counts 2 and 3 against the 1st Defendant beyond reasonable doubt and I so hold while he is discharged and acquitted in counts 4 and 5. Counts 1 and 2 under which the 2nd Defendant was charge were not proved against him. He is therefore hereby discharged and acquitted on each of the said Counts.
The 1st Defendant is found guilty on Counts 2 and 3 respectively. He is accordingly convicted on the said Counts. ALLOCUTOS: The 1st Defendant is a first offender. He is a graduate. There is no previous record of conviction. He is married and has children. I urged the Court to tamper justice with mercy.
SENTENCE: The offences for which the 1st Defendant is convicted are offences of strict liability.
This Court has no option. The 1st Defendant is hereby sentenced to death by hanging in each of the Counts.
Consequential Orders:
1. The 1st Defendant’s vehicle Exhibit G 1, ABIA ABA 81 BQ and Exhibit F, the Magnun Revolver Pistol with 33 rounds of ammunitions shall be forfeited to the Federal Government of Nigeria.
2. Exhibit G – Vehicle No. KUJ

627 LC and the Gold colour Gionee Phone belonging to the deceased shall be released to the Deceased’s family through the Nominal Complainant Eimiogo Audu.
3. The Commissioner of Police is hereby ordered to investigate the veracity if the 1st Defendant’s allegation that the Police audaciously took him to the Zenith Bank to withdraw money from his account for their benefit while in custody.
4. All those found culpable should be charged forthwith.
5. The Report of the investigation should be furnished this Court within one month.”

The Appellant was aggrieved and has by his Notice of Appeal dated 5th March, 2020 and filed on 6th March, 2020 contained in the Supplementary Record of Appeal transmitted to this Court on 8th June, 2020, appealed to this Court on sixteen (16) grounds which without their particulars are as follows:
“GROUND I
ERROR IN LAW
The trial Judge erred in law and occasioned a gross miscarriage of justice when he held –
“The PW4 also testified to the effect that it was a gunshot injury that killed the deceased. There is evidence from PW6 that the Appellant was armed. Exhibit F was recovered from him.”

GROUND II
ERROR IN LAW
The learned trial Judge erred in law and occasioned a gross miscarriage of justice when after holding as follows:
The PW6 evidence touching on conspiracy is what he was allegedly told by the 2nd Defendant himself when he was arrested which 2nd Defendant later denied.
Learned Prosecuting Counsel relied on the confessional statement of the Defendants to urge the Court to convict them.
There is no evidence of criminal conspiracy against the Defendants aside the confessional statements of the Defendants which are Exhibits Hand H1.
I am very weary of Exhibits H and H1. They are not obtained in accordance with Section 16 and 17 of the Administration of Criminal Justice Act. There are also no other evidence outside the confessional statements that makes it probable that the said confessional statement are true. The 2nd Defendant also had a gun shot injury. The 3rd Prosecuting witness referred to the and Defendant as the injured victim lying on the ground with the deceased. It is improbable therefore to infer that the 2nd Defendant conspired to commit the offence in which he is a victim.

In the circumstance, there is no credible, positive and equivocal evidence before me to enable the Court come to a conclusion that the offence of conspiracy is provided beyond reasonable doubt.
Still proceeded to convict the Appellant in count 2 of the charge.
GROUND III
ERROR IN LAW
The learned trial Judge erred in law and occasioned a gross miscarriage of justice when in convicting the Appellant in Count 2 of the charge, held that the Respondent established the three (3) elements of Armed Robbery against the Appellant.
GROUND IV
ERROR IN LAW
The learned trial Judge erred in law and occasioned a gross miscarriage of justice when he held thus:
“On whether the Defendants were armed, the evidence of PW6 is that the 1st Defendant was found in possession of Exhibit F, a Magnum revolver pistol and 33 rounds of ammunition which are marked Exhibit F. He stated that during investigation the Defendant said the deceased Edwin Inalegwu was shot by him with the Exhibit F along the Airport Road. That they visited the scene with the 1st Defendant and also visited the nearest Police Station. They told them that there was a robbery

on the day of the incident. That the 1st Defendant implicated the 2nd Defendant. That the 2nd Defendant also confessed that he was with the 1st Defendant in their confessional statement Exhibits H and H1.”
GROUND V
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:
The evidence of PW1 on the other hand is that his cousin was missing. He reported at the Police Station Wuse Zone 3.
That he left in a Blue Nissan Almera vehicle which he uses for taxi. He told them he has Gionee M5 Phone Gold in colour. He supplied the particulars of the car and phone number. The police recovered the phone and he identified it. The police said they arrested PW5, Frank Agwunobi with the phone. He said the phone was given to him for repairs by the 1st Defendant who he later identified among other persons in an identification.
GROUND VI
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:
The evidence is that the 1st Defendant took the Police to his house in Aba, Abia State where the deceased

vehicle the Blue Nissan Almera was recovered with the 1st Defendant vehicle all marked Exhibit G and GI i.e. KUJ 627 LC and ABIA ABABI BQ. The evidence is that the Pistol and 33 rounds of ammunitions were recovered in the Sienna vehicle Ash in colour belonging to the 1st Defendant.
The PW6 gave a graphic explanation of the investigation which led to the recovery of the deceased phone and vehicle Exhibit G from the 1st Defendant.
He also gave evidence of how the 1st Defendant moved after the crime from Wuse Zone 6 to Kaduna to Zaria and then to Aba.
GROUND VII
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:
The PW4 also testified to the effect that it was a gunshot injury that killed the deceased. There is evidence from the PW6 that the 1st Defendant was armed Exhibit F was recovered from him.
That PW6 said in evidence that the deceased told them during investigation that it was the Exhibit F that he used in killing the deceased.
The vehicle of the deceased Exhibit G and phone in Exhibit B were also found in his possession.
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GROUND VIII
ERROR IN LAW
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held as follows:
On the 3rd element, there is abundant evidence that the 1st Defendant participated in the robbery.
The 2nd Defendant participated on the other hand is a matter of suspicion and probability. There is scanty or no evidence to drive same.
GROUND IX
ERROR IN LAW
The learned trial Judge erred in law and occasioned a gross miscarriage of justice when he held as follows:
“The 1st Defendant was found with a revolver gun and 33 rounds of ammunition. He confessed orally during investigation that it was a gun which he used in killing the deceased.”
GROUND X
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held thus:
The Gionne Gold in colour i.e. Exhibit B which is Defendant’s property was recovered from a phone repairer he gave it to in Kaduna. The 1st Defendant was identified by PW5 the person the 1st Defendant gave the deceased phone for repairs in Kaduna. Although an identification paraded is not a sine qua non to a conviction for a

crime alleged, the evidence is that the PW5 identified the 1st Defendant as the person who gave him the Deceased phone for repairs.
GROUND XII
ERROR IN LAW
The learned trial Judge erred in law and occasioned a gross miscarriage of justice when after holding thus;
The 1st Defendant tendered Exhibit 11 his Zenith Bank Account Statement. He was charged to Court on the 25/09/17.
He was in the custody of the Police throughout this period.
The Exhibit 11 shows that on 13/03/17 and 16/03/17 while in custody, he withdrew N400,000, N100,000 and N220,000. The 1st Defendant’s evidence that money was extorted out of him by the Police could be true. It seems to be like Armed Robbers in uniform investigating an armed robber.
Proceeded to give credence to the evidence of PW2 PW3 and PW6.
GROUND XIII
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held thus:
He further said that he is an International Businessman. That he supplies stock fish in Umuahia, Port-HarCourt, Okigwe and Abuja.
There is no iota of evidence to corroborate those assertions. However,

all the circumstances proved by the prosecution are consistence with the hypothesis that the 1st Defendant is guilty and at the same time. It is inconsistent with the hypothesis that he is innocent on such as to exclude every other reasonable or rational hypothesis.
GROUND XIV
ERROR IN LAW
The learned trial judge erred in law when having held as follows;
“The evidence is that the Exhibit F are recovered from the 1st Defendant driving in his car Exhibit G1. He confessed orally to have bought same in Spain although there is no evidence to suggest that he obtained a license to use firearms.
There is inconsistency as to where Exhibit ‘F’ was recovered from. The Charge states, they are recovered in his house at 13 Ezianna Street, Aba. The evidence is that the Exhibit F were recovered in his car at Apo;
In the circumstance the prosecution has failed to prove the offence of unlawful possession…”
Still proceeded to convict the Appellant in Counts 2 and 3 of the Charge.
GROUND XV
ERROR IN LAW
The trial Judge erred in law and occasioned a gross miscarriage of justice when he failed to hold that the

inconsistency in the case of the Respondent as to the date of the identification parade, as well as the number of persons paraded, casted a doubt on the case of the prosecution and ought to be resolved in favour of the Appellant.
GROUND XVI
The judgment is unreasonable and cannot be supported having regard to the evidence
RELIEF SOUGHT
The Court of Appeal is urged to allow the appeal, set aside the judgment of the lower Court, and to acquit the Appellant.”

The Appellant’s Brief of Argument was dated and filed the 27th day of May, 2020 while the Respondent’s Brief of Argument was filed on 3rd day of July, 2020. The Appellant filed an Appellant’s Reply Brief of Argument on 29th day of July, 2020. It was dated same date. The appeal was heard on 4th October, 2020 when the parties adopted their Briefs of Argument.

The Learned Senior Counsel to the Appellant, Dr. Onyechi Ikpeazu SAN distilled four issues for determination as follow:
1. “Having discharged the 2nd Defendant who was jointly charged with the Appellant with agreeing and conspiring to commit the offence of Armed Robbery in Count 2 of the Charge, whether the

learned trial Judge was not wrong in convicting the Appellant on the same count. GROUND II.
2. Whether the learned trial Judge was not wrong when in convicting the Appellant in Count 2 held that the prosecution established the three (3) elements of Armed Robbery against the Appellant. Grounds III, IV, V, VI, VII, VIII.
3. Whether the learned trial Judge was not wrong in convicting the Appellant for the offence of culpable homicide punishable with death by the use of Exhibit F, the Magnum Pistol, when the trial Judge found that the prosecution failed to prove that the appellant was in possession of the same gun Grounds IX, XIV.
4. Whether the learned trial Judge duly evaluated the evidence led before him and ascribed probative value to same in convicting the Appellant for the offence of culpable homicide punishable by death. Grounds I, X, XI, XII, XIII and XV.

On his part, YUNUS ABDULSALAM, ESQ., for the Respondent nominated two issues for consideration of the appeal viz:-
1. Whether or not the Respondent from the evidence laid before the Court proved the case against the appellant beyond reasonable doubt as required by law? Issue 1 is drawn from Grounds i –XV.

Whether the judgment of the trial Court was against the weight of evidence? Issue 2 is drawn from Ground xvi.The appeal will be considered on the four issues formulated by the Appellant’s learned Senior Counsel. Issues 1 and 2 will be considered together.
“1. Having discharged the 2nd Defendant who was jointly charged with the Appellant with agreeing and conspiring to commit the offence of Armed Robbery in Count 2 of the Charge, whether the learned trial Judge was not wrong in convicting the Appellant on the same count. GROUND II.
2. Whether the learned trial Judge was not wrong when in convicting the Appellant in Count 2 held that the prosecution established the three (3) elements of Armed Robbery against the Appellant Grounds III, IV, V, VI, VII, VIII.”

Under issue 1, the learned Senior Counsel submitted that the learned trial Judge was not correct when he convicted the Appellant for the offences of Armed Robbery as charged in Count 2. He submitted that attention ought to be paid to the constituents of Count 2 and the need for the Respondent to prove all the ingredients beyond reasonable

doubt in the absence of which learned Silk stated that the two Accused must be discharged without more. He laid out the said Count 2 of the Charge and what could be discerned from it. That all elements must be proved. He relied on the cases of:-
1. CHUKWUMA V FRN (2011) 13 NWLR (PART 1264) 391 AT 408D;
2. TAFIDA V FRN (2015) 5 NWLR (PART 1399) 129 and
3. FRN V BARMINAS (2017) 15 NWLR (PT 1588) 177 at 2026 per EJEMBI, JSC.

He opined that in all its ramifications Count 2 primarily charged the Defendants for offence of conspiracy. On how to prove conspiracy, he relied on the case of PETER V STATE (2018) 13 NWLR (PT. 1635); 2018 LPELR – 44357 pages 21 – 22. He drew the attention of the Court to the finding of lower Court on pages 444 – 445 of the record to the effect that lower Court appreciated that the charge has to do with conspiracy. That the Appellant was charged alone in Count 2 and that since conspiracy was not proved against the Defendants, the said Count 2 ought to collapse along Count 1.

That Appellant cannot be convicted without any amendment to the Charge and that what the trial Judge did amounted to an amendment of the

Charge without the prosecution following the procedures contained in Sections 216, 217 and 218 of Administration of Criminal Justice Act, 2015. The Appellant cannot be convicted alone on offence which accused him of “agreeing and conspiring” with 2nd Defendant. He relied on the case of TORRI V NPSN (2011) 13 NWLR (PART 1264) 365 and INDYEL VS THE STATE (2019) LPELR 491 – 55 CA P 12 – 13 D – E.

On issue 2 as to whether the lower Court erred in convicting the Appellant on Count 3, the learned Silk contended that if as held by the lower Court there was no evidence of conspiracy to commit Armed Robbery, then there was no basis for the trial Judge to convict the Appellant for offence charged in Count 2. He accused the learned trial Judge of wrongfully holding that the 1st Defendant now Appellant was guilty of Armed Robbery when there was no definite findings made by him when he was considering the elements of Armed Robbery. He quoted profusely what the learned trial Judge said on pages 447 – 450 of the record of appeal to submit that the lower Court did not evaluate the evidence led by the prosecution and the contrary evidence given by the Appellant.

He referred to evidence of PW6, PW1, PW4 and PW5. That the Court only chronicled or paraphrase the evidence without evaluating the evidence. He relied on the cages of:-
1. LAGGA V SARHUNA (2008) 16 NWLR (PART 114) 427.
2. BOZIN V STATE (1985) 2 NWLR (PART 8) 465.

That having discharged the Appellant on Counts 4 and 5 relating to unlawful possession of arms and ammunition and having disregarded the alleged confessional statement Exh. H, the prosecution has obligation to establish elements of Count
That having rejected Exhibit F on ground that prosecution’s case was contradictory he cannot rely on the same evidence to find Appellant guilty of Count 2.

That the evidence of identification of Appellant and how the process was conducted was faulty and that there were material contradictions between evidence of PW6 and PW5. He relied on BOZIN V STATE SUPRA. That a Court cannot pick and choose between evidence of prosecution witnesses. He also found fault with evidence of all prosecution witnesses on every aspect of their evidence linking the Appellant as unreliable.

That failure of the trial Judge to properly evaluate the evidence

of prosecution and in particular the defence of the Appellant rendered the findings unsustainable and that the finding of lower Court has led to miscarriage of justice. He relied on WACHUKWU VS OWUNWANNE (2011) 14 NWLR (PART 1266) 1 and ADAMU V STATE (1991) 4 NWLR (PART 187) 530.
He urged this Court to resolve issues 1 and 2 in Appellant’s favour.

In response to the above submissions, the learned Counsel the Respondent YUNUS ABDULSALAM, ESQ state that the Appellant was charged pursuant to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act, LFN, 2004 and he stated the elements of the offence that must be established as follows:-
i. That there was robbery or series of robbery;
ii. That the robberies were done with arm;
iii. That the Accused was among the robbers.

He stated that a cursory look at the evidence before the lower Court shows that the ingredients of offence contained in Count 2 were established against the Appellant beyond reasonable doubt. He relied on the evidence of 2nd Defendant who he said maintained throughout that deceased was robbed on 25/12/2016 and that Exhibits B (GIONEE 5) and G

(NISSAN BLUE ALMERA VEHICLE) belonged to deceased. He also relied on the evidence of PW1, PW3 and PW6 who testified there was robbery.

That it is on record that the Appellant voluntarily led the Police to his residence in Aba where Exhibit G was handed over to the Police. That PW6 evidence on pages 350 – 379 of record of proceedings further shows that Exhibit “F” the Revolver Pistol and 30 rounds of ammunitions were discovered from the residence of the Appellant in Aba where Appellant confessed orally that it was the revolver pistol that he used to shoot the decease at the head which led to deceased death.

He also stated that Exhibit B was traced to Appellant relying on pages 346 – 350 of record where PW5 consistently put the Appellant as the person who gave him Exhibit B That the culpability of the Appellant was established. He relied Section 167 of the Evidence Act as amended and decisions in the case:-
1. OKUNADE KOLAWOLE VS THE STATE (2015) LPELR – 24400 (SC);
2. ATANDA V THE STATE (1983) 6 SC and
3. EZE V. STATE (1985) LPELR – 1189.
He urged the Court to hold that essential ingredients of armed robbery were proved beyond

reasonable doubt relying on the case of JOSEPH BILLE V THE STATE (2016) LPELR – 40832 SC.

On whether there was proper evaluation of the evidence, Learned Counsel to Respondent contended there is proper evaluation and that the judgment was not against the weight of evidence. That the case was proved beyond reasonable doubts vide evidence of PW1 – PW6 and Exhibits A – G relying on pages 336 – 379 of the record. He also submitted that the evidence was properly evaluated.

On the proprietary of conspiracy crafted into Count 2 and the fact that the Court found on Count 1 that no conspiracy was established, the Respondent’s learned Counsel submitted that Count 2 is explicit enough and that even of it could be said that the charge was badly drafted it will not lead to Appellant’s acquittal. He relied on Section 220 of Administration of Criminal Justice Act, 2015 and the case of EBRI V STATE (2004) 11 NWLR 885.

He submitted that evidence of PW5 and PW6 and the discovery of deceased car in Appellant’s residence in Abia State pointed solely against the Appellant and not in any way inextricably interwoven around the 2nd Defendant.

That the evidence against the Appellant is not similar to the evidence exculpating. That it does not mean that once an accused is discharged his co-accused must be discharged. He relied on the case of IDIOFE V STATE (2008) 6 MJSC 36 AT 49.

He submitted that the evidence before the lower Court was properly evaluated. Learned Counsel to also submitted that the failure of the Appellant to lead evidence to buttress his defence of alibi is grievous disservice to his case. He relied on the case of CHUKWUMA EZEKWE V STATE (2018) LPELR – 44393 (SC).

On whether there was proper identification of the Appellant, the learned Respondent’s Counsel submitted that contrary to the complaints of Appellant that there were discrepancies in evidence of PW5 and PW6, he submitted that identification parade is not even sine qua non for the prosecution to prove its case. That there was no necessity for identification in the first place. He relied on the case of BALOGUN V A.G. OF OGUN STATE (2002) 6 NWLR (PT. 737) 512 AT 534. He stated that failure to tender Exhibit B through PW1 is not fatal to the Respondent’s case. That the evidence of PW1 is relevant and that no one dispute it

that Exh. B is a GIONEE phone. That this consistent with testimonies of PW1, PW2, PW5 and PW6. That slight discrepancy in description of Exh. B if any is an inconsequential discrepancy which he said did not affect prosecution’s case. He relied on the case of IGBELE V STATE (2006) NGSC 45.

On whether exculpation of Appellant on Counts 4 and 5 amounts to failure of prosecution on Counts 2 and 3, learned Counsel to the Respondent submitted that the Appellant’s contention cannot be sustained having regard to the peculiarity of facts in this case. That ingredients or elements in Counts 2 and 3 are not the same as that in Counts 4 and 5.

That it was the trial Judge who erroneously mistaken the first Charge dated and filed 25/9/17 to the Amended Charge of 10/11/2017.

That the Amended Charge stated that the alleged Magnum Revolver Pistol – Exhibit F was found in Appellant’s possession at Apo Mechanic, Abuja. He relied on the evidence of PW6 page 351 of the record.

That the finding of the trial Judge on pages 456 and 457 of the record was obviously wrong. He also made reference to pages 320 – 321 of the record. He urged this Court not to

dismantle the findings so that Appellant would not escape his culpability under Count 2.

RESOLUTION OF ISSUES 1 AND 2
One of the major contentions of the Appellant is that having been discharged and acquitted on count of conspiracy to commit offence of armed robbery and culpable homicide punishable with death as charged under count one with one Nnorom Everly then his conviction under count 2 cannot stand. The Appellant believes that same facts or pieces of evidence were relied on by the prosecution to prove count 2. That since the trial Court found the evidence insufficient to convict the Appellant and his co-defendant on count 1, the pieces of evidence relied on by the learned trial Judge could not have met the requirement of proof beyond reasonable doubt in criminal trials.

Another central argument on issue 1 can be found in paragraph 5.11 of the Brief of Argument of the Appellant where the learned Senior Counsel to him had this to say:
“5.11 Not only was Count 2 not amended, the Appellant did not take a plea with respect to a Count which charged him alone with the offence of armed robbery. He, therefore, did not offer any defence in

the manner of such non-existent Count. The Count before the Court on which he was arraigned and which he defended was that which accused him of “agreeing and cospiring with the 2nd Defendant, and nothing more.”
I have read the said count 2 of the charge against the Appellant and Nnororn Everly and there is no doubt that the charge is/was accusing the Appellant of being among persons who participated in robbery of the deceased one – Mr. INALEGWU EDWIN ALI of his NISSAN ALMERA Vehicle “blue in colour with registration No. KUJ 627 LC and one Gionee 5 GSM phone and you both thereby committed an offence punishable under Section 1(2)(a) and (b) of Robbery and Firearms (Special Provisions) Act LPN 2004.”
It is true that the said count 2 stated that the crime was committed “within the jurisdiction of this Court agreed and conspired among yourselves to commit criminal offence.” To my mind this is mere inelegant drafting that does not affect the substratum of count 2 against the Appellant.
The court will not strike down a count or counts contained in a charge on the ground of omission or commission by the drafter of the count or charge if

there are sufficient particulars in the count or the charge explicit enough to enable the Defendant/Appellant understand the charge against him or her. What is important and crucial is that the offence contained in the count or charge or information is known to law and the Defendant is not misled by the defect or anomaly in the charge. Once the Defendant understands or appreciates the count or charge against him and he pleads to it, the Defendant is taken to have put himself on trial and adequately understands the charge or count against him. If he has any complaint against the charge he must timeously take objection to it or challenge the validity of the charge when the charge is read to him to take his plea. Where a Defendant or Accused or his learned Counsel fails to take an early objection to the charge or count, he cannot take liberty to raise any challenge or complaints against the charge at the Appellate Court.
In this case, the Appellant never complained that the charge was bad or that it was invalid. The Appellant pleaded NOT GUILTY to all and each of the counts contained in the charge on pages 316 – 317 of the record as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“Prosecution: The case is for arraignment. The Defendants are in the Court: We pray the Court to take their pleas.
Registrar: Do you understand English 1st Defendant: Yes I do.
1st COUNT
1st Defendant: I understand the Count. I am not guilty.
2nd Defendant: Yes I do.
Registrar: Listen to the Charge preferred against you.
PLEAS
2nd Defendant: I understand the Charge, I am not guilty.
2ND COUNT
1st Defendant: I understand the Count. I am not guilty
2nd Defendant: I understand the Count. I am not guilty.
COUNT 3:
1st Defendant: I understand the Count. I am not guilty.
COUNT 4:
1st Defendant: I understand the Count. I am not guilty
Prosecution: The Defendants having entered their plea, we are asking for a trial date. We pray that the Defendants be remanded in Prison custody.
It is too late now for Appellant to complain. See: 1. OBINNA JOHN VS. THE STATE (2019) 9 NWLR (PT. 1676) 160 AT 172B – 173A where NWEZE, JSC held:
“It is this same impression that led to the extensive arguments in the appellant’s brief on the absence of signature in the charge. Now, just

like Sections 166, 167 and 168 of the old Criminal Procedure Law, Section 382 of the Criminal Procedure Code, which was applicable in Plateau State, at the relevant time, dealt with the effect of errors, defects or omissions in charges at the trial Court, Okewu v. F.R.N. (2012) 9 NWLR (Pt. 1305) 237, 369; John Agbo v. State (2006) 1 SCNJ 332, 335-337, (2006) 6 NWLR (Pt. 977) 545; Uwaekweghinya v. State (2005) 3 SCNJ 32, 42; (2005) 9 NWLR (Pt. 930) 227.
Thus, in order to accentuate the irrelevance of the submissions of the appellant’s counsel, it is necessary to adumbrate on the import of this section of the Criminal Procedure Code (supra). By virtue of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with any offence shall be entitled to be informed, promptly, in the language he understands, and in detail, of the nature of the offence.
Only one or two cases may be cited here to illustrate this point. See Amala v. State (20) 12 NWLR (Pt. 888) 520; Ezeze v. State (2004) 14 NWLR (Pt. 894) 491; Okeke v. The State (2003) 15 NWLR (Pt. 842) 25; Madu v. The State (2012) LPELR – 7867 (SC),

(2012) 15 NWLR (Pt. 1324) 405; Solola v. The State (2005) 11 NWLR (Pt. 937) 460. Ostensibly therefore, the statutory prescription that every charge shall state the offence for which the accused person is standing trial stems from this constitutional mandate.
Occasionally however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; misjoinder of offenders and misjoinder of offences, see generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited, 2004) 188; O. Doherty, Criminal Procedure in Nigeria Law and Practice (London, Blackstone Press Limited, 1999) 227; O. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd, 1998). This is the context in which Section 383 (supra) has to be viewed.
By Section 383 (supra), any objection to a charge for any formal defect (surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused

person is under obligation to raise any objection to any formal defect to a charge before he takes his plea. See Ogunye v. The State (1999) 5 NWLR (Pt.604) 548; Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Okeke v. The State (2003) S SCM 131, 185-186, (2003) 15 NWLR (Pt. 842) 25; Solola and Anor v. The State(2005) 6 SCM 137, 147, (2005) 11 NWLR (Pt. 937) 460; Okewu v. F.R.N (2012) 9 NWLR (Pt. 1305) 237, 369.
Where he fails to do so, he is presumed to have understood the charge preferred against him. Ogunye v. The State (supra); Adeniji v. The State (supra); Okeke v. The State (supra); Solola and Anor v. The State (supra); Okewu v. FRN (supra).
Simply put therefore, the learned DPP for the respondent was right in his submission that since counsel for the appellant did not raise any objection to the alleged defect in the charge, he cannot now canvass it here. Uwaekweghinya v. State (supra); Timothy v. F.R.N (2013) 4 NWLR (Pt. 1344) 213,231-243; Agbo v. State (supra).”
2. CHUKWUDI OYEM VS. FRN (2019) 11 NWLR (PART 1683) 333 AT 347F – 348 A – B per ABUJI, JSC who said:
“The appellant learned counsel weakly stated that the appellant was

wrongly charged under Section 14(b) of the NDLEA Act instead of Section 11 (b). I think he is fully aware of the law that is why he did not make any issue or argument out of it nor is he asking this honourable Court to tamper with the lower Court’s judgment because of it. Nevertheless, without the risk of superfluity, the law is settled that it does not matter under which section of the law, the definition or the penal section, on appellant is charged and convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even on entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial been rectified by the trial Court. See Per Muhammad, J.S.C in Okpa v. State

(2017) LPELR-42205 (SC), (2017) 15 NWLR (Pt. 1587) 1.”
At page 354 F – H to 355 A per M. D. MUHAMMAD, JSC who said:
“Appellant counsel’s further contention that the concurrent conviction of the two Courts below are not sustainable because of their being placed under the wrong section of the law, learned respondent’s counsel is again right must equally be discountenanced.
In Akinola Olatunbosun v. The State (2013) LPELR – 20939 (SC), (2013) 17 NWLR (Pt. 1382) 167 this Court per Aka’ahs, JSC restated the principle thus-
“The bone of contention in the dissenting judgment by Denton-West JCA is anchored on the view that the appellant was charged under the punishment section and not the section that created the offence. That argument will hold water only if the offence for which the appellant was convicted is not known to law. the facts on which an appellant was convicted are known to law, the fact that the accused was charged Linder a wrong law or section of the law, will not lead to his acquittal.”
Section 1(2)(a) and (b) of the Robbery and Firearms Act under which the Appellant was charged reads as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“1 (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less that twenty-one years.
(2) If:
(a) any offender mentioned in Subsection (1) is armed with any fire arms or any offensive weapon or in company with any person so armed; or
(b) at or immediately before or immediately after the time of 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.”
As could be seen above, the Appellant was not charged for offence of conspiracy but of offence of actual commission of offence of Armed Robbery. Appellant is deemed to have consciously pleaded NOT GUILTY to Count 2. See JOHN TIMOTHY VS THE FEDERAL REPUBLIC OF NIGERIA (2013) 4 NWLR (PART 1344) 213 AT 266 H TO 247 A – D per PETER-ODILI, JSC.

The next port of call is to examine whether the said count 2 was established or proved against the Appellant.

In order to sustain the offence of Armed Robbery, the prosecution must establish the following namely:
(a) That there was a

robbery or series of robberies;
(b) That each or any of the robbers was armed at the time of robbery operation;
(c) That the accused was one of the robbers or had taken part in the robbery operations.
See 1. THE STATE V SANI IBRAHIM (2019) 8 NWLR (PART 1674) 294 AT 326 E – H per KEKERE-EKUN, JSC who said:-
“In a charge for armed robbery, the prosecution must prove the following essential ingredients:
(a) That there was a robbery or series of robberies;
(b) That each robbery was an armed robbery; and
(c) That the accused person was the robber or one of those who participated in the armed robbery.”
2. USMAN SAMINU (aka DANKO) VS THE STATE (2019) 11 NWLR (PART 1683) 254 AT 2691-1 TO 270 A – F per ARIWOOLA, JSC who held:-
“Robbery generally is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Akeem Agboola v. The State (2013) LPELR 20652; (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM 157; (2013) All FWLR

(Pt.704) 139; (2013) 54 NSCQR (Pt. 11) 1162; (2013) 5 SCNJ 653.
It is trite law that for the prosecution to establish the offence of armed robbery, the following are required to be proved:-
(a) That there was infact a robbery or series of robberies;
(b) That the robbery was an armed robbery;
(c) That the accused person was the armed robber or one of the armed robbers.
See; Bozin v. State (1985) 2 NWLR (Pt.8) 465; Suberu v The State (2010) 8 NWLR (Pt. 1197) 586: Ani v The State (2003) 11 NWLR (Pt. 830) 142; Ani v The State (2010) 10 NWLR (Pt. 1201) 190 e 244 B – b; Olayinka v The State (2007) 9 NWLR (Pt. 1040) 561.
The law is settled that there are various ways of proving the guilt of an accused person standing trial. It can be proved by:
Confessional statement of an accused person:
Evidence of eye witness of the crime;
Circumstantial evidence.
See; Agboola v. The State (supra);Nigerian Navy & Ors v. Lambert (2007) 18 NWLR (Pt.1066) 300; Alufohai v. The State (2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172.
Under our criminal justice system, an accused person is presumed innocent

until the prosecution prove his guilt. Hence, an accused is not expected to prove his innocence before the law Court. It is clearly the duty of the prosecution to establish the charge against an accused beyond reasonable doubt. See; Uche Williams v. The State (1992) 10 SCNJ 74; (1992) 8 NWLR (Pt. 261) 515; (1992) LPELR- 3492.”
3. CHIBUIKE OFORDIKE VS THE STATE (2019) 3 SCM 132 AT 156 F -H per OKORO, JSC.
4. DANIEL JIYA VS THE STATE (2020) 13 NWLR (PART 1740) 159 AT 190 B – C per NGWUTA, JSC.

The prosecution relied heavily on the pieces of evidence given by PW1, PW2, PW3, PW4 and in particular that of PW6 the Investigating Police Officer.

The evidence of PW1 was to the effect that the victim of the offence now deceased (INALEGWU EDWIN ALI) left the house in his Blue Nissan Almera Vehicle which he used as taxi on 25/12.2016 but when they could not find him they reported case of missing person to the Police on 27/2/16. He told the Police the deceased had a phone GIONEE Gold in colour and on 7/1/17 Police invited members of family and they identified Appellant’s phone at the Police station. Police informed them one Frank already arrested

was found with the phone belonging to deceased the victim of Robbery. PW2 is one Sat Langinwa Hanna gave evidence of how the Police traced the deceased phone to one Mr. Frank at Kaduna Road, Sabo Kaduna State. The phone was tendered as Exhibit “B”.

PW3, one Sgt. Kelvin Ejembi testified to the fact that he found and Defendant at the scene of crime with a lifeless body and took them to hospital.

PW5 is Frank Agunobi who was arrested for being in possession of the deceased phone Exhibit B. He gave evidence to the effect that it was the Appellant that brought the phone of the deceased victim of the robbery to him. He confirmed he was arrested by the Police. He identified the Appellant as the person who brought the phone to him for repairs. ADOLE BERNARD is the Investigating Police Officer who gave very extensive evidence of his investigation of how the Appellant was arrested.

On pages 350 – 351 of the record, PW6 testified as follows:-
“PW6:
Witness affirms and states in English
I am Adole Bernard. I am a Police Officer attached to SARS.
I reside in Mararaba. I know why I am in Court. I also know the Defendants.

On the 11th of January, 2017, a case of missing person was transferred from Wuse Division to state CID and it was transferred to us for investigation. It was transferred with an Exhibit Gionee 5 and one suspect. Frank Agwunobi for further investigation. We gathered intelligence and travelled and got the 1st Defendant. At Apo Mechanic Village on the 1st March, 2017, we saw the 1st Defendant in his Siena Toyota vehicle, he panicked and started moving. We double-crossed him with our vehicle. He came down. He was about running and we apprehended him. The information at our disposal was based on our handset found with the 1st suspect. That was what we were looking for him to tell us. We searched his vehicle in his presence. Two of my team members were holding him. He told me that he has a pistol under his driver’s seat. He brought out a small bog. We asked him to open it and he did. We saw a revolver pistol and some ammunitions. We counted the ammunitions. They were 33. He said his father was kidnapped sometimes in the past and threat of kidnapping was around him. That he used it for his security purpose.”

On page 353 of the record PW6 said:-
“The victim left home with his Blue Nissan Almera vehicle. I asked him where the vehicle was. It was KUJ 627 LC for possible recovery. 1st Defendant said he carried the vehicle to Wuse Zone 5 and slept in the vehicle that night. The following day, he woke up and moved with the vehicle to Kaduna. At Kaduna, he gave out the Gionee 5 to one man repairing phone for N20,000 and drove the vehicle to ZARIA and from Zaria to Aba. That the vehicle was at Aba.
I asked if he could take us there. He agreed, and we went to Aba. At No. 13 Ezinwa Street, when he opened the gate, we entered and we saw the vehicle. We took possession of the vehicle. We brought the vehicle to SARS. Both the Sienna, Pistol and the deceased were duly registered with our Exhibit Keeper.”

Under Cross-Examination by the learned to the 1st Defendant now Appellant PW6 said:-
“Cross-examination by 1st Defendant’s Counsel: I am one of the IPOs in this case. The 1st Defendant took me to the scene on the 14/03/17, told the Court I went to the nearest Police Station. It is Iddo Divisional Police Station.
It is not the practice to book at the nearest Police Station before visiting scene of crime.

The office investigating this case oversees the Divisional Police Station.
Yes, there was a report of Robbery lodged at Iddo Police Station. It was Kelvin Ejembi who had testified in this case and was the IPO at Iddo that said there was a report.
Everly 2nd Defendant was not asked to identify the Deceased at Abuja Teaching Hospital. The 2nd Defendant had not been arrested at the time the body was released for burial. The body was released on the 5/03/17.
Dr. Mukhtar PW4 was served with Corono Inquest. The precise date when identification parade was taken is not known to me but it is a date of a date of March.
Nine people took part in the parade.
As soon as he turned, he identified him.
Prior to that date, he gave us his description. He said he was dark and a bit taller than himself and spoke Igbo language like himself. The 9 persons were all of similar height. The persons’ were of similar complexion. None had a beard. I selected the persons based on his description. I recorded 1st Defendant’s statement as he was speaking. There is no date on “the front page of Exhibit H1. He had earlier answered many questions. He denied some;

when we got to the office, he made the opening paragraph in Exhibit H 1. Refers to Exhibit A.
He recorded the statement in my presence and in my office. He indicated the particulars of the missing vehicle. I was furnished with the particulars of the missing vehicle and the victim which enable my investigation. The Deceased vehicle was recovered from the house of the 1st Defendant at No. 13 Eziama Street, Aba, Abia State. I apply for a Search Warrant. It was approved and executed. I made the application in Abia State. I did not apply in Abuja. I cannot remember the Court that issued the Warrant but if I see it, I can identify it. Three of us from the team went to Aba for the recovery.
Mobile Police Officers from Aba accompanied us to the Scene.
We did not furnish the local Court with a return of the executed warrant.”

In his findings against the Appellant, the learned trial Judge found on pages 449 – 450 of the record justifiably and correctly too as follows:-
“The evidence is that the 1st Defendant took the Police to his house in Aba, Abia State where the deceased vehicle the Blue Nissan Almera was recovered with the 1st Defendant

vehicle all marked Exhibit G and G1 i.e. KIJJ 627 LC and ABIA ABA81 BQ. The evidence is that the Pistol and 33 rounds of ammunitions were recovered in the Sienna vehicle Ash in colour belonging to the 1st Defendant.
The PW6 gave a graphic explanation of the investigation which, led to the recovery of the deceased phone and vehicle Exhibit G from the 1st Defendant.
He also gave evidence of how the 1st Defendant moved after the crime from Wuse Zone 6 to Kaduna to Zaria and then to Aba.
The PW4 also testified to the effect that it was a gunshot injury that killed the deceased. There is evidence from the PW6 that the 1st Defendant was armed Exhibit F was recovered from him.
That PW6 said evidence that the deceased told them during investigation that is was the Exhibit F that he used in killing the deceased.
The vehicle of the deceased Exhibit G and Phone in Exhibit B were also found in his possession.
However, there is no evidence to suggest that the 2nd Defendant was armed.
The only evidence relied don by the Prosecution is Exhibit H which is not equivocal or positive. In the circumstance, the 2nd element of the offence

was not proved against the 2nd Defendant.
On the 3rd element, there is abundant evidence that the 1st Defendant participated in the robbery.
The 2nd Defendant’s participation on the other hand is a matter of suspicion and probability. There scanty or no evidence to prove same.”
(underlined mine)

The pieces of evidence given by the Prosecution’s Witnesses particularly PW5 and PW6 is quite overwhelming, positive and cogent to justify the conviction and sentence imposed upon the Appellant.
In criminal proceedings, the Prosecution is not under an obligation to call horde of witnesses. All that it is required to do is to dislodge the presumption of innocence accorded the Accused under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence or offences for which a Defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt. Evidence of a sole witness where its positive, direct and fixed the Defendant with the commission of offence(s) charged will suffice.

See:-
1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 5061-1 – 507 A where I. T. MUHAMMED, JSC now Ag. CJN said:-
“It is equally in tandem with our Constitution (Section 36(5) of the Constitution 1999 as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all time, presume a person innocent until proved guilty, the onus which rests on the shoulders of the prosecution.”
2. SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI JSC (LATER CHIEF JUSTICE OF NIGERIA (Rid) said:
“In criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
3. THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 AT 267H TO 268 A – B per OKORO JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond

reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR – 3528 (SC), (1992) 4 SCNJ 113, Ogundiyan v. State(1991) LPELR – 2333 (SC), (1991) 3 NWLR (Pt 181) 519. Akibge v. IOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9 SC 1 at 20. Babuga v. State (1996) LPELR – 701 (SC), (1996) 7 NWLR (Pt 460) 297.”
4. DANIEL JIYA V THE STATE (2020) 13 NWLR (PART 1740) 159 AT 198 H TO 199A – B per PETER- ODILI, JSC.
The onus has been discharged in this Case.

I am not unmindful of the Appellant’s concern pertaining to PW6 evidence. The evidence of PW6 is direct and positive and not suspect. It is not hearsay or unbelievable as Appellant would want this Court to believe. The evidence of both sides was properly evaluated by the learned trial Judge and there is no denial

of fair hearing at all and no miscarriage of justice against the Appellant. He was given every opportunity to defend himself. There was no serious cross examination by Appellant’s Counsel at the lower Court on PW6’s evidence that the deceased phone and car were found in Appellant’s possession and the damnifying evidence of PW6 that it was Appellant who took them to his house in Abia State where the deceased (victim’s) car was found in Appellant’s house.
PW6 was also not cross examined on the fact that Appellant made oral confession to the crime which led to the discovery of deceased car in Appellant’s home. See;
1. LEKAN OLAOYE VS THE STATE (2018) LPELR – 43601 (SC) 1 AT 23 – 24 per SANUSI, JSC who said:-
1. Also on the quality of the testimony of PW3 who is the investigation Police officer which the appellant’s Learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay because an IPO narrates to the Court the outcome of his investigation or enquires or what he recovered and in the course of his duty he must

have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Court normally consider in arriving at just decision one way or the other. The lower Court was therefore right in refusing to discountenance the evidence adduced or given by PW 3.”
2.IJEOMA ANYASODOR V THE STATE (2018) LPELR 43720 SC 1 AT 20 – 21 per SANUSI, JSC who said:-
2. “On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW 3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnesses, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and position evidence and therefore not hearsay

evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.”

The complaints of the Appellant cannot be countenanced. Issues 1 and 2 are resolved against the Appellant.
ISSUES 3 AND 4
3. Whether the learned trial Judge was not wrong in convicting the Appellant for the offence of culpable homicide punishable with death by the use of Exhibit F, the Pistol, when the trial Judge found that the prosecution failed to prove that appellant was in possession of the same gun. Grounds IX, XV.
4. Whether the learned trial Judge duly evaluated the evidence led before him and ascribed probative value to same in convicting the Appellant for the offence of culpable homicide punishable by death. Grounds I, X, XI XII, XIII and XV.

The Learned Senior submitted under issue 3 that the lower Court wrongfully convicted the Appellant for offence of culpable homicide punishable with death by use of Exhibit F, Magnum Pistol when the learned trial Judge had found that prosecution failed to prove that Appellant was in possession of the same gun. His argument is substantially based on submissions canvassed under issue one and two with reference

to the discharge and acquittal of the Appellant on Count 1 of the charge.

The Learned Senior Counsel is of the view that it will amount to doubt jeopardy for the same Court to now conviction for culpable homicide. That having rejected Exhibit F which Learned Senior Counsel submitted is the crux of Count 3 has been obliterated. Attention was drawn to what the Appellant believed to be inconsistent findings of the trial Judge on Exhibit F.

That since the learned trial Judge rejected the alleged oral confession of possession of Exhibit F same should apply to the alleged oral admission of shooting the deceased. That to rely on such evidence will be a breach of Section 17 of Administration of Criminal Justice Act 2015 that requires that if an Accused or Defendant is to make statement his statement must be taken in the presence of his Legal Practitioner or Officials of Legal Aid or Justice of Peace. That to invent an alleged oral confession where a Written Statement was made is to circumvent the law.

That the cause of death would have been better proved if a Ballistician had been called. That the prosecution failed to prove the elements of the

Culpable Homicide against the Appellant and that none of the prosecution’s witnesses proved possession of the gun by the Appellant. He relied on the case of KWALE v. STATE (2016) at 436 – 437. He accused the PW6 of being the mastermind behind the scheme which roped Appellant into an offence the prosecution was unable to establish.

Under issue four, the Appellant is complaining of failure of the lower Court to properly evaluate evidence led and ascribe probative value to same in convicting the Appellant of offence of Culpable Homicide punishable by death on Count 3 of the charge. Learned Senior Counsel agreed the trial Court appreciate the onus of proof and the ingredients of the offence as stated by the lower Court.

He submitted that the Learned trial judge appraisal of evidence of causal link fall short of requisite rules and principles of law before conviction may be secured. He stated that the learned trial Judge used the word “hypothesis” three times in the sentence wherein he convicted the Appellant on page 456 of the record. Learned Silk explored what the word connotes in Merriam – Webster Dictionary which is “an idea or theory that is not

proved but that leads to further study” “an assumption or concession made for the sake of argument.” It is the Appellant submission that a Court cannot base its conviction for capital punishment on such an unfounded basis. He also relied on page 454 – 455 of the record and went into extensive review of prosecutions oral and documentary evidence and made critical assessment of PW6 evidence who he accused of extorting a confessional statement from Appellant contrary to law. He stated that Appellant was beaten up and that PW6 colleagues stole huge sums of money from Appellant which Learned Silk stated the lower Court ought to have favourably considered.

On the issue of Alibi set up by the Appellant, the Learned Senior Counsel made allusion to the finding of Learned Trial Judge to the effect that Appellant claimed to be in his village Aba on 25/12/2016. But that he failed to call a witness to corroborate the testimony and that Appellant also failed to substantiate his claim that he was an international Businessman.

That the law is trite that once a Defendant sets up and alibi in his statement the Police is bound to investigate it but in this case they

failed to investigate it but according to Learned Silk where the defence is raised in the testimony of the Defence, the burden rests on Defendant. That in this case, the Appellant’s statement was rejected after trial within trial. That Appellant testified on how he was beaten up and was not allowed to make a statement of his own volition. That the only opportunity Appellant had to set up his alibi was in Court. That there is no law requiring that evidence of alibi by an Accused should be corroborated. That the trial Court failed to property evaluate the Appellant’s evidence.

On whether the deceased phone allegedly found with Appellant was against Appellant, the Learned Silk submitted there was no nexus between Exhibit B and PW1’s evidence who claimed that he knew deceased phone. That ownership of the phone was not established. That PW5 contradicted evidence of identification parade because he claimed under cross examination that he acted through photographs shown to him.

On the nature of circumstantial evidence that will warrant a conviction of a defendant, he drew attention of this Court to the fact that lower Court relied on Odogwu v. State (2013)

14 NWLR (PART 1373) 74. Learned Silk relied on pages 71 – 72 A – B of the record in urging this Court to resolve issue and to discharge the Appellant on Count 3.

In his own submission on Count 3 relating to conviction of Appellant Learned Counsel to the Respondent submitted that the requisite ingredients of the offence are:
(a) That there death of human being must have taken place.
(b) That the death was caused by the accused
(c) That the act was done with the intention of causing death or that it was done with intention of causing bodily injury.

He stated the three methods of proving a criminal case which he said must be proved beyond all reasonable doubt but no shadow of doubt. He relied on the cases of BORI v. STATE (1980) 8 – 11 SC 18 and EMEKA vs. STATE (2011) 14 NWLR (Part 734) 668.

That on the 1st ingredient which is the death of the deceased Edwin Ali was established beyond per adventure. He stated that Exhibit C and C1 speak for themselves and that evidence of PW3 and PW4 confirmed the death of the deceased Edwin Ali. He relied on pages 339 to 346 of the record of appeal. That the accused himself admitted

orally that he killed the deceased with Magnum Revolver Pistol Exhibit F. He also relied on the evidence of PW6 who he said gave graphic account of how the Appellant confessed to killing the deceased. That PW6 testified that Blue Nissan Almera Vehicle with Plate Number KUJ/627 LC (Exhibit G) belonging to the deceased was found in Appellant’s house in Aba. He relied on pages 334 – 350 of the record. That the deceased phone was also taken for Repairs by Appellant.

On 2nd ingredient of the offence of culpable homicide Learned Counsel to the Respondent relied on evidence of PW1 PW5 and PW6. That the law is settled that testimony of investigation police officer is credible and not hearsay. That whatever an IPO sees, witness or discovered or was told in the course of investigation is admissible. He relied on the cases of:
1. ANYASODOR VS. STATE (2018) 8 NWLR (PART 1620) 125.
2. AJIBOYE VS. STATE (1994) 8 NWLR (PART 364) 587 at 593
3. OLAOYE VS. STATE (2018) 8 NWLR (PART 1621) 281 at 301.

He urged the Court to rely on the pieces of evidence highlighted.

That by way of circumstantial evidence the facts of the Appellant confession

and founding deceased car with Appellant are enough to draw inference that Appellant killed the deceased. He relied on the case of LORI & ANOR v. THE STATE (1980) NSCC vol. 12 269.

On 3rd ingredient of culpable homicide he relied on the fact of shooting of deceased by Appellant and stated that a person intend the consequences of his action.

Still on issue 3 as to whether the acquittal of Appellant on Count 4 and 5 was not fatal to prosecution efforts to establish charge of culpable homicide against Appellant, the Learned Counsel to the Respondent is of the view that the submissions of Appellant have no support in law. That the discharge of Appellant on Counts 4 and 5 was not because the prosecution could not prove the Appellant’s possession of Exhibit F.

On whether the evidence of Ballistician is fundamental to prove Counts, the Respondent submitted that it is not necessary where there is abundance of evidence to establish the guilt of the accused person. He relied on the case of OMODHOLA v. COP (1977) NSCC 158 and JOSEPH BILLE v STATE supra.

The Appellant as stated earlier filed Appellant’s Reply Brief. The Learned Silk found fault

with 1st Respondent’s issue 1 which is whether the judgment of lower Court was against the weight of evidence in that Appellant did not formulate any issue from Ground 16 which is on weight of evidence. That since the Appellant did not formulate any issue from ground 16 it is deemed abandoned. He relied on the cases of:
1. ADEJUMO V. OLAWAIYE (2014) 12 NWLR (PART 1421) 252.
2. SALIHU V. WASIU (2016) 5 NWLR (PART 1506) 423
3. DAKOLO V. REWANE DAKOLO (2011) 16 NWLR (PART 1272) 22.

That issue 2 drawn from ground 16 is incompetent. Apart from the above, the argument of the Appellant, the Reply is a rehash or repetition of the main Brief of Argument filed by the Appellant.

RESOLUTION (3) OF ISSUE 3 AND 4
The settled position of the law is that in order for the prosecution to prove or establish an offence against a Defendant or an Accused, the prosecution must adduce credible and cogent evidence vide any of the following modes viz:
a. Through testimony or testimonies of eyewitness or witnesses, and/or
b. Through confessional statement, voluntarily made by the accused person; and/or
c. Through circumstantial

evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged.

The Appellant was charged with the offence of culpable Penal Code Law. An offence of culpable homicide punishable with death is committed when a person does an act with intention of causing death or bodily injury which is likely to cause the death of another human being. The prosecution has a bounden duty to prove the following elements or ingredients of the offence beyond reasonable doubt:
(a) the death of a human being;
(b) That the death resulted from the act of the accused person:
(c) that the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm would be its probable.
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G – H TO 34 34A – D per RHODES-VIVOUR, JSC who said:-
Culpable homicide is defined in Section 220 of the Penal Code. It reads:
“220. Whoever causes death –
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or

(b) by doing an act with the knowledge that he is likely by such act to cause death, or
(c) by doing such a rash or negligent act, commits the offence of culpable homicide.
In Smart v. State (2016) 1 -2 SC (Pt. 11) p. 41, – (2016) 9 NWLR (Pt. 1518) 447 at page 479-480, papas. H-A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt:
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt. 1 368) p. 337.”
2. THE STATE VS. ALI AHMED (2006) 14 NWLR

(PART 1743) 1 at 17 per ARIWOOLA JSC who said:
‘Generally, homicide means the killing of one person by another.
In other words, it is the act of purposely, knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide means a wrongful act that results in a person’s death but does not amount to murder. See Umar Adamu v. The State (2014) 10 NWLR (Pt. 1416) 441 at 460.
Therefore, it is already settled that for the prosecution to secure conviction in a charge of culpable homicide punishable with death, under the Penal Code, the following ingredients must be established:-
(a) That the death of a human being has actually taken place;
(b) That the death resulted from the act of the accused and;
(c) That the act was done with the intention of causing death, or that The accused did not care whether the death of the deceased will result from his act.
See Durwode v. State (2000) 15 NWLR (Pt.691) 467 at 487; Ogbu & Anor. v. The State (2007) 4 SCM 169 at 185; (2007) 5 NWLR (Pt. 1028) 635; Tunde Adava & Anor. v. The State (2006) 9 NWLR (Pt.984) 152 at 167; The State v. Babangida John

(2003) LPELR- 20590. It needs not be specifically stated again that all the above ingredients of the offence must be proved together and that failure to prove anyone of them means failure of the charge itself. See Haruna Alhaji Galadima v. The State (2017) LPELR-43469 (SC), (2017) 12 NWLR (Pt. 1580) 339″

In convicting the Appellant, the lower Court found against him as follows:
“The 1st Defendant was found with revolver gun and 33 rounds of ammunition. He confessed orally during investigation that it was the fun which he used in killing the deceased.
The Gionee Phone Gold in Colour i.e. Exhibit B which is Defendant’s property was recovered from a phone repairer he gave it to in Kaduna. The 1st Defendant was identified by PW5 the person the 1st Defendant gave the Deceased Phone for repairs in Kaduna. Although an identification paraded is not a sine qua non to a conviction for a crime alleged, the evidence is that the PW6 conducted an identification parade and PW5 identified the 1st Defendant as the person who gave him the Deceased Phone for repairs. The deceased vehicle Exhibit G which he was using as Taxi and which he went out with before

he was missing recovered in the house of the 1st Defendant in Aba, Abia State. The evidence is that it was the 1st Defendant who led the Police Officers for its recovery.
See the evidence of PW6.
There is also no doubt that the act of the 1st Defendant that caused the death was done with the intention of causing death and the 1st Defendant know that death will be the probable consequence of his act.
The 1st Defendant said in his defence that he was with his family in the village on the 25/12/16. He did not call any member of his family to corroborate same in evidence. He also said he was charged because of the money the Investigating Police Officers collected from him during his incarceration. This piece of evidence is not logical. Money cannot be extorted from the 1st Defendant for the purpose of charging him to Court.”
See pages 454 – 455 of the record.

The above findings are fully supported by the evidence on record and the Learned trial Judge’s findings will not be disturbed by this Court.

I am very conscious of the contention of the Learned Senior Counsel to the Appellant to the effect that the gun allegedly used and

which formed the nucleus of Count 3 was essentially rejected by the learned trial Judge and that this mainstay of Count 3 had been dislodged.

I am not at one with Learned Silk with considerable respect to the Learned Senior Counsel that Exhibit “F” was rejected. It was not rejected and the finding of the trial Court in respect thereto concerning Counts 4 and 5 is of no avail to the Appellant. The trial Court had in the course of consideration of Counts 4 and 5 which charged the Appellant for unlawful possession of firearm and unlawful possession of 33 live ammunitions found as follows:
“The 4th and 5 Counts are unlawful possession of firearm i.e. magnum Revolver Pistol and 33 rounds of live ammunition by the 1st Defendant.
The evidence is that the Exhibit F are recovered from the 1st Defendant while driving in his car Exhibit 61. He confessed orally to have bought same in Spain. Although there is no evidence to suggest that he obtained a license to use firearms. There is inconsistency as to where Exhibit ‘F’ was revered from. The Charge states, they are recovered in his house at 13 Eziama Street, Aba. The evidence is that the Exhibit F were

recovered in his car at APO.
In the circumstance, the prosecution has failed to prove the offences of unlawful possession as contained in Counts 4 and 5 beyond reasonable doubt.”

What is glaring from the above decision on counts 4 and 5 is that the prosecution failed to prove that the Appellant was in unlawful possession of the gun Exhibit “F” and the 33 live ammunitions and NOT that Appellant did not possess them. All the pieces on record clearly show the gun and 33 live ammunition were found in his car at Apo Mechanic Village Abuja. See Counts 4 and 5 as reproduced by the Learned trial Judge on pages 406 and 407 of the record and PW6 evidence on pages 350 – 351 of the record.

His discharge on Count 4 and 5 on the ground that unlawful possession of firearms and ammunition was not proved does not translate or amount to non-possession of Exhibit F. The trial Judge made mention of evidence of the Prosecution witnesses including that of PW6 and oral admission of Appellant that he bought the gun and used same on the deceased.

The Learned Silk also vehemently submitted that the Learned trial Judge did not duly evaluate the evidence before him

and ascribed probative value to same in convicting Appellant of offence of Culpable Homicide.

An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See:
1. AMOS BAMGBOYE ORS VS. RAMI OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE JSC late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of Appeal Court is at a disadvantage as to the demeanour of the witnesses, in the tower Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place

on their evidence.”
2. IRENE NGUME (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMAD, JSC who held thus:
It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the Court of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable Tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial Court therefore for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently.
“Where however the trial Court failed to

use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA vs. NIPOST (2003) NWLR (PT. 833) 308, 343 – 344, ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 706) 1 and IRAGUNMA VS R.S.H.P.D.A. (200B) 12 NWLR (PT. 2. 834) 427.”

I have calmly read the record of proceedings, the oral and documentary evidence given and proffered by the prosecution. I have also read all the submissions made in the Briefs of Argument adopted at the hearing of this appeal vis-a-vis the judgment of the Learned Trial Court and the conviction of Appellant on Counts 2 and 3 of the charge, I have no doubt in my mind that all the findings of the trial Court and the conviction and sentence imposed on the Appellant are amply supported by the evidence on record. The learned trial Judge duly and correctly evaluated the said evidence in convicting the Appellant for the offence of Culpable Homicide punishable with death. Issues 3 and 4 are also hereby resolved against the Appellant.

The Appellant’s appeal lacks merit and it is hereby dismissed in its entirety.

The judgment of the High Court of the Federal Capital Territory (CORAM KEKEMEKE. J.) delivered on 6th day of February, 2020 is HEREBY AFFIRMED.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I agree with the reasoning and resolution of the issues against the Appellant. Consequently, the appeal lacks merit and is hereby dismissed. I also abide by the other orders made therein in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother PETER OLABISI ICE JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.

Appearances:

ONYECHI IKPEAZU, SAN with him OBINNA ONYA, ESQ., A. A. AKAAH’S, ESQ ,MELVIN OPUTA, ESQ and A. J. OBI OBIORA, ESQ For Appellant(s)

YUNUS ABDUL-SALAM with him HAMMED ABIODUN IBRAHIM, ESQ, CLARA O. OFODILE and D. P. ABAH, ESQ For Respondent(s)