GARBA MOHAMMED V. THE STATE (2012)

GARBA MOHAMMED V. THE STATE

(2012)LCN/5539(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2012

CA/I/144A/2007

RATIO

INTERPRETATION: CANONS OF INTERPRETATION

One of the vital canons of the interpretation of statutes or written instruments is to give the plain words of the statute their literal or ordinary and grammatical meaning as rightly argued by Mr. Agbebi for the appellant vide the cases cited (supra) by the appellant.

Another equally vital canon of construing statutory and constitutional provisions is to read integrated or interrelated provisions together, not in isolation or by instalment -See A-G, Benue State v. Umar (2008) 1 NWLR (pt. 1068) 311. Dimegwu v. Ogunewe (2008) 17 NWLR (pt. 1116) 358. Chime v. Ude (1996) 7 NWLR (pt. 461) 379. The Registered Trustees ETC v. Medical Health Workers Union of Nigeria & Ors. (2008) 1 SCNJ 348 and Inajoku v. Adeleke (2007) 1. SCNJ 1. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

CRIMINAL PROCEDURE: WHEN SHOULD THE DEFENCE OBJECT WHERE THERE IS AN IRREGULARITY IN THE INITIATION OF PROCEDURE IN A CRIMINAL TRIAL

Attah v. State (2010) 42 NSCQR (pt.1) 550 at 570 per Musdapher, J.S.C., (now C.J.N.) thus –

“Where there is an irregularity in the initiation of the procedure for a criminal trial, the defence has a duty to object timeously and not when the trial is concluded. See Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717”

See also C.O.P. v. Okoyen (1964) 1 ALL NLR 306 at 307 followed in Yabugbe v. C.O.P. (1992) 4 NWLR (pt. 233) 152 at 172, Ogbomor v. State (1985) NWLR (Pt 2) 223, Queen v. Ijoma (1962) 1 ALL NLR 402 and Otti v. State (1991) 8 NWLR (PT. 207) 103 at 119. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

GARBA MOHAMMED Appellant(s)

AND

THE STATE Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment): An Ogun State High Court sitting in Ijebu-Ode judicial division (the court below), convicted and sentenced the appellant to death for the offences of conspiracy to commit armed robbery and armed robbery contrary to sections 5(b) and 1(2) (b) respectively of the Robbery and Fire Arms (Special Provisions) Act (CAP 398) Laws of the Federation, 1990, as subsequently amended, prompting the present appeal.
Concisely, the appellant and two other persons posing as customers robbed two employees of Felico Filling Station, the PW1 and PW2, of N25, 000 belonging to their employer and a telephone handset belong to PW1 at the Felico Filling Station, Ibadan road, Ijebu-Ode. The appellant was subsequently arrested in connection with another offence of robbery where he confessed the robbery at the Felico Filling station. The court below believed the respondents case and convicted the appellant as charged.
In a notice of appeal filed on 22/12/06 and subsequently replaced with a fresh notice of appeal containing two grounds of appeal filed on 19/7/10 and deemed properly filed on 19/1/11, the appellant derived two issues for determination on the appeal in his brief of argument filed on 21/1/11 to wit –
“1. Whether the provisions of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the tribunals (certain consequential amendments etc) decree 1999 under which the appellant was tried, convicted and sentenced are not inconsistent with the provisions of section 36(6) the Constitution of the Federal Republic of Nigeria 1999 and therefore void.
2. Whether the learned trial judge was right in holding that the prosecution proved a case of armed robbery against the appellant when the prosecution failed completely to establish the identity of the appellant by any means known to law”
The appellants brief stressed on the first issue that section 1(2) (a) and (b) of the Robbery and Firearms Act (hereafter called CAP. 398) lacks the constitutional requirement of spelling out “in details the nature of the offence” stated in section 36(6) (a) of the Constitution of the Federal Republic of Nigeria 1999 as amended, (hereafter called the 1999 Constitution), unlike sections 401 and 402 of the Criminal Code, C38, Laws of the Federation of Nigeria, 2004 which defines in detail the nature of the offence of robbery, not the particulars of the offence as defined by Oxford Advanced Dictionary and explained in Obumselu V. Commissioner of Police (1958) 3 F.S.C 40 to mean the nature of the offence, therefore the clear and unambiguous words of the constitutional provision and the said provisions of CAP. 398 literally and grammatically construed without interpolation or gloss exposes the inconsistency and conflict of the said provisions of CAP. 398 and the relevant constitutional provision rendering the former null and void under section 1(3) of the 1999 Constitution read together with the cases of B.M Ltd. v. Woermann – Line (2009)13 NWLR (Pt. 1157)149, KSIEC v. P.D.P. (2005) 6 NWLR (Pt.920) 25, Moghalu v. Ngige (2005) 4 NWLR (pt.914)9 S.C 51; consequently the charge under which the appellant was convicted is bad and his conviction quashed with an order for his acquittal as there was no valid identification of the appellant as the culprit, his conviction having been based on identification in the dock.
The appellant’s brief contended on the second issue that by convicting the appellant as charged, the court below breached section 36 (5) of the 1999 constitution and section 138 (1) and (2) of the evidence on the presumption of innocence of an accused and of proof beyond reasonable doubt of a criminal offence respectively taken together with the cases of Daniels v. State (1991) 8 NWLR (pt. 212) 715 at 732, The State v. Osbubunjo (2001)1 SCNJ 102, Idemudia v. State (1999) 7 NWLR (pt 610) 202 at 215, Esangbedo v. State (1989) 4 NWLR (pt. 113) 57 Nwosu v. State (1998) 8 NWLR (pt.562) 433 at 444, Aigbagbon v. State (2000) 7 NWLR (pt. 666) 686 at 704, Alabi v. State (1993) 7 NWLR (pt.307) 511 at 523. Bozin v. State (1985)2 NWLR (pt.8) 465 at 469; because the respondent did not establish the identity of the appellant as the armed robber vide Eyisi v. State (2000) 15 NWLR (pt. 691) 555 at 587-588, Okeke v. State (1995) 4 NWLR (pt.392) 676 at 708-709, Alabi (supra) at 524, therefore, the identification of the appellant by the respondent’s witnesses for the first time while he was in the dock was a sham as it was not positive and the PW1 had shown in his evidence given on 1/3/2005 after the alleged offence was committed on 25/8/2003, an interval of over two years, that he was unsure of the identity of the armed robbers vide his evidence at pages 23-25 of the record, that the evidence of the PW2 and the PW3 did not also solve the problem of the identification of the appellant as the culprit; and that the offences could not therefore have been proved by the alleged confessional statement vide Aigbagbon v. State (supra), consequently the appeal should be allowed.
The respondent’s brief dated 24/10/17 and filed on 25/10/11 but deemed properly filed on 2/11/11 highlighted an issue for determination at page 4 therefore thus-
“Whether the prosecution proved beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery against the Appellant with respect to the robbery incident at Felico Filling station Ibadan road Ijebu-Ode having regard to the evidence before the Honourable trial court.”
The respondent argued that the appellant conceded in his brief that there was an armed robbery but that the appellant was not one of the robbers, so on the authority of Bozin v. State (1985)2 NWLR (pt.8) 465 the respondent was obliged only to prove and did prove that the appellant committed the offences charged via the positive identification of the appellant by the corroborative evidence of the PW1 and PW2 coupled with the confession in Exhibits A and D vide the cases of State v. Aibangbee (1988) 5 NWLR 548 Eyisi v. State (2004) 4 NSCPR 60 at 100, Alarape v. State (2001) 1 NWLR (pt. 705) 79 at 98-99, R.V. Sykes (citation not supplied), Uche v. State (2007) 5 NWLR (pt. 1027) 214 at 201(?) Dagaya v. State (2006) 2 SCM 33 at 67, Idowu v. State (1985) 5 NWLR (pt. 43) 515, therefore the court should not tamper with the findings of fact ably made by the court below that saw and heard the witnesses vide Egesimba v. Onuzurike (2002) 15 NWLR (pt. 791) 466 at 536.
The respondent’s brief argued further that section 15 of CAP. 398 complementing section 1(1) and 2(a) thereof defined the offences of robbery similar to section 401 of the Criminal Code (supra) is not in conflict or inconsistent with section 36(6) of the 1999 Constitution and did not affect the validity of the charge which contained the details and essentials of the offences and was read to the appellant upon his arraignment under section 36(6) of the 1999 Constitution and the appellant understood same before his plea was taken thereto under section 275 of the Criminal Procedure Law CAP. 30 Laws of Ogun State, 1978, in the presence of his counsel, therefore it is too late for the appellant to raise objection to the charge on appeal after going through the entire trial that ended in his conviction and sentence, consequently the appeal should be dismissed.
In my respectful opinion, the issues for determination formulated by the appellant and the respondent encompass the two grounds of appeal and; I adopt the appellant’s issues for the resolution of the appeal.
One of the vital canons of the interpretation of statutes or written instruments is to give the plain words of the statute their literal or ordinary and grammatical meaning as rightly argued by Mr. Agbebi for the appellant vide the cases cited (supra) by the appellant.

A close look at section 1(1), (2) (a) and (b) of CAP. 398 (supra) reveal it is a punishment section. The usual practice in criminal matters is for the prosecutor to charge an accused under the penal or punishment section, not the definition section of the enactment – See Criminal Procedure of the Southern States of Nigeria by Nwadialo at page 75 as follows:
“The statement of the offence is in short the name by which the offence is known…. An offence may be defined in one section and declared punishable by a prescribed penalty in another section (e.g. robbery in sections 401 and 402 of the Criminal Code respectively). In such a case, the usual practice is to refer to the penal section. The authority for this practice no doubt derives from the fact of its adoption in the models of charges given in the Second and Third Schedules of the Criminal Procedure Act and which models are by virtue of section 463 good and sufficient in Law.”
See also Asuquo v. State (1957)1 ALL NLR 123 to the effect that in drafting a charge, the prosecution should follow the words used in the section under which the charge is laid.

Normally, therefore, the punishment section of a criminal enactment does not bear the definition or description of the offence. Drafters of criminal legislations always make provision in other sections of the enactment for the definition of the offence in the criminal legislation. That is considered standard/universally accepted practice or method of drafting a criminal enactment. It has to be so in order to avoid over-burdening the punishment provision of the criminal legislation which is required to be terse, not cumbersome.
In respect of CAP. 398, the draftsman provided the punishment provision in section 1 (1) and (2) of the enactment and followed the universal trend to supply the definition of the offence in section 15 thereof. So the punishment section and the definition section of the enactment which are interwoven or intertwined like inseparable Siamese twins have to be considered together or corporately. And, in taking both the punishment and the definition sections of the enactment (supra) harmoniously, it will be realised that the said enactment indeed creates in details the nature of the offences of robbery and armed robbery within the constitutional requirement of section 36 (6) (a) of the 1999 Constitution.
In my respectful opinion, a person charged with robbery or armed robbery under the punishment provision of CAP. 398 takes along with it the elements of the offence stated in details under the definition provision of the enactment in section 15 thereof.
The amended charge against the appellant is recorded at page 21 of the record as follows –
BETWEEN
THE STATE
AND
1. NURUDEEN SULEIMAN
2. GARBA MUHAMMED

COUNT I
That you NURUDEEN SULEIMAN, GARBA MUHAMMED and others now at large on or about the 25th day of August, 2002, at Felico Filling Station Imowo Ijebu-Ode in the Ijebu-Ode Judicial Division: conspired together to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to section 5 (b) and punishable under section 1 (2) (a) of the robbery and firearms (special Provisions) Act, 1990 as amended by the Tribunal (certain consequential Amendments E.T.C) Act 1999.

COUNT II
That you NURUDEEN SULEIMAN, GARBA MUHAMMED and others now at large on or about the 25th day of August, 2003 at Felico Filling station Imowo Ijebu-Ode in Ijebu-Ode Judicial Division while armed with gun robbed Oduwale Benedict of the sum of N25, 000 and one Nokia handset and thereby committed an offence contrary to section 1 (2) (a) of the robbery and firearms (special Provision) act 1990 as Amended by the Tribunal (certain consequential Amendments E.T.C) Act 1999.”
In ordinary parlance, counts I and II of the charge sheet (supra), the subject matter of the appeal, boil down to the allegation that the appellant and others while armed with gun, a firearm, within the meaning of the definition of firearms in section 15 of CAP, 398 (supra) robbed the named persons of some sums of money and a handset at gunpoint within the meaning of stealing movables with violence under the definition section of the enactment (supra). The ingredients of the nature of the offence of armed robbery were therefore disclosed in sufficient detail and particularity in the charge sheet (supra) satisfying the main purpose of a charge which is to give the accused sufficient notice of the case against him vide Faro v. I.G.P. (1964) 1 ALL NLR 6.
The arraignment of the appellant is contained at page 21 of the record as follows –
“Accused persons present.
A. A. Oyefeso (SC) for the State
O. A. Akanni (Miss) with her (Miss Baiyekusi & Miss Okoye).
Oyefeso: We have an interpreter in court and we may now take the plea of the accused person.
Interpreter Sworn.
Sworn on holy Bible and states as follows:-
My name is SUNDAY ISHAYA; I am a member of the National Youth Service Corp Serving at Ijebu-Ode Grammer where I teach Geography.
I am a native of Kaduna state, so I understand the Hausa Language very well.
Charge read in English Language and interpreted into Hausa language to each of the accused person by the sworn interpreter.
Each accused said he understood the charge.
COUNT 1:- Each of the accused pleaded NOT GUILTY
COUNT 2:- 1st accused pleaded NOT GUILTY.
2nd Accused Pleaded NOT GUILTY.
Oyefeso: we intend to call between 7-9 witnesses. I saw the civilian witnesses yesterday and they promised to come to court today. I ask for a date for hearing. We have agreed to 11/7/2005
Akanni: That date is convenient to us.”
The appellant took his plea without complaint or protest at the earliest opportunity that the charge lacked the details of the nature of the offence charged; nor did the appellants learned counsel at the court below who was present at the arraignment of the appellant object that the charge was deficient in respect of the details of the nature of the offences charged (supra). The appellant who did not establish that he was misled or prejudiced or embarrassed in his defence and/or suffered miscarriage of justice thereby is estopped from complaining of the alleged irregularity after participating throughout the gamut of the trial leading to his conviction by the court below see Attah v. State (2010) 42 NSCQR (pt.1) 550 at 570 per Musdapher, J.S.C., (now C.J.N.) thus –
“Where there is an irregularity in the initiation of the procedure for a criminal trial, the defence has a duty to object timeously and not when the trial is concluded. See Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717”
See also C.O.P. v. Okoyen (1964) 1 ALL NLR 306 at 307 followed in Yabugbe v. C.O.P. (1992) 4 NWLR (pt. 233) 152 at 172, Ogbomor v. State (1985) NWLR (Pt 2) 223, Queen v. Ijoma (1962) 1 ALL NLR 402 and Otti v. State (1991) 8 NWLR (PT. 207) 103 at 119.

I respectfully conclude on the first issue that sections 1 and 2 of CAP. 398 are not inconsistent or in conflict with section 36 (6) of the 1999 constitution and cannot be voided under section 1 (3) of the 1999 constitution; that the charge (supra) contained in details the nature of the offences charged; and that, even if the charge (supra) was defective for lacking some of the particulars of the offences charged, it is late in the day for the appellant who took plea to it and allowed the trial to proceed on merit to raise the issue for the first time on appeal, more so the appellant did not show he was embarrassed or prejudiced in his defence or suffered miscarriage of justice, The first issue is, accordingly, resolved against the appellant.
The court below found as a fact that the unchallenged and/or uncontroverted evidence of the pw1 and the Pw2 proved beyond reasonable doubt that they were robbed at gunpoint of N25,000 and a telephone handset on 25/8/03 at Felico filling station Imowo, Ijebu-ode, by three robbers whom they did not know before the incident. I have read the record and am satisfied that the uncontradicted evidence of the pw1 at pages 23-26 of the record and the PW2’s evidence at pages 27-28 of the record supported the finding of the court below at page 57 of the record that there was an armed robbery of N25,000 from the PW1 and the PW2 by three robbers armed with gun on 25/8/03 at Felico filling station Imowo, Ijebu-Ode, and hereby uphold the said finding of fact made by the court below.
It is clear from the evidence of the PW1 and the PW2 that they did not know the three persons that robbed them at gunpoint of the sum of N25, 000 and a handset on 25/8/3 at Felico filling station, Ijebu-Ode. Their respective pieces of uncontradicted evidence stated the armed robbery operation occurred at about 4:30pm, in day-time. The description the pw1 gave of the robbers was that one was tall, the other short and the last one slim in stature and that, the appellant was the tallest of them and he could recognise him because he looked the appellant in the face at the time of the robbery operation. Based on the said pieces of evidence the court below held at pages 58-59 of the record that an identification parade was not necessary.
With full respect to the court below, I am uncomfortable with its conclusion that an identification parade was unnecessary. First the duration of the robbery operation was not given or estimated to see whether the encounter between the PW1 – PW2 and the three persons was fleeting/brief or long. Second, description by height alone without accompanying distinguishing or distinctive feature(s) or mark of a person is nebulous and of no assistance. Above all the Pw1 and the PW2 did not see the appellant after 25/8/3, until both of them saw the appellant in the dock on 11/3/06 and 16/3/06, time-lag of over two years. With the effluxion of time of over two years from the date of the incident to the time the PW1 and PW2 saw the appellant, their recollection of the appellant as the culprit would have dimmed, more so the arrest of the appellant was not due to their description of his features to the police, but arose from one of the accused who fingered (permit the expression) him as one of the armed robbers that struck at the Felico filling station, Ijebu-Ode.
Dock identification of an accused after an interval of two years and above cannot be free from doubt. The fact that the PW2 stated under cross-examination, not in examination-in-chief, that he was able to see the face of the appellant at the time of the robbery operation may not do. What distinctive mark he saw on the appellant’s face or appearance was not given in evidence by the Pw1 or the Pw2, save the evidence-in-chief that the appellant was the tallest of the three robbers. That was not enough. In Ikemson & Ors. V. State (1989) 3 NWLR (pt. 110) 455 at 472 Karibi-Whyte, J.S.C., held inter-alia that –
“I agree with the submission of counsel to the respondent that an identification parade is only essential in the situations enunciated in R v. Turnball & Ors (1976) 3 ALL E.R. 549 at 551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstance he might not have had full opportunity of observing the features of the accused. In such a case, a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the witness had for observing the accused and what features of the accused noted by the victim and communicated to the police marks him out from other Persons.” (My emphasis.)
Oputa, J.S.C., observed in his judgment at page 478 of the law report –
“Where the witness first acquaintance with the accused is during the commission of the offence, an identification parade may be held. It is not a guarantee against the usual errors of observation, errors of recognition or errors in reconstruction. The criminal law is full of cases of mistaken Identity. The courts have therefore got to guard against cases of mistaken identity…” (My emphasis.)
It has to be appreciated that the PW1 and the PW2 did not know the appellant before the alleged incident; that whether the encounter at the scene of crime between the PW1- PW2 and the appellant was brief or not was left at large; that the time PW1-PW2 identified the appellant in the dock the incident could not have been fresh in their memory on account of the fact that time-lag of over two years had set in between the date of the alleged incident and the date appellant was identified in the dock by the PW1 and the PW2. I am therefore of the firm view that had the court below taken into account the two important factors stated above it would not have held that the identification of the appellant was positive and reliable obviating the necessity of an identification parade.
I think an identification parade was necessary in the circumstances of the case – See Ndukwe v. State (2009) 7 NWLR (pt.1139) 43 at 79 per the lead judgment of Muntaka-Coomassie, J.S.C., thus:
“In other words, there is the need for caution by the court considering the evidence of identification, to see whether there is any weakness in the evidence. Therefore, an accused person, must be given the benefit of doubt, where any weakness is discovered. Thus, there is the need, to consider all the facts and circumstances in each case.
I note that the concurrent findings of fact in the said case (supra), were not disturbed by the Court. In effect or in other words, an identification parade is essential in situations or cases, where the victim or witness, did not know the accused person before and was confronted by the offender for a very short time and in which time and circumstance, he might not have had the full opportunity of observing the features of the accused person. See the cases of Ikemson & Ors v. The State (1989) 6 SC (pt. 1) 112; (1989)3 NWLR (pt. 110) 455; (1989) 6 SCNJ 54 at 65; Otti v. The State (1991) 5 SCNJ 143; (1991) 8 NWLR (pt. 207) 103 Ngwumba v. The State (1993) 6 SCNJ (pt. 1) 109 at 119-123 (1993) 7 NWLR (pt. 407) 511 and many others.” (My emphasis.)
Further, in Ansha v. State (1998) 2 NWLR (pt. 536) 246 at 261-262, it was held that –
“In Mbenu v. State (1988) 3 NWLR (pt. 84) 615 at 625, the Supreme Court adopted the guidelines laid down by Lord Widgery, CJ. In R V. Turnball (1976) 3 ALL ER 549 at 551-552 sabotage on the evaluation of evidence as to the identification of an accused which reads:
“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in way as for example is passing traffic or a press of people? How often? If only occasionally had he any Special reason for remembering the accused? How much time elapsed between the original observation and the subsequent identification to the police?” (My emphasis.)
See also Alabi v. State (1993) 7 NWLR (pt. 307) 511 at 523-27 533, Chukwu v. State (1996) 7 NWLR (pt. 463) 686 at 702, Balogun v. A-G Ogun State (2002) 6 NWLR (pt. 763) 512 at 53 (letter D,) State v. Salawu (2012) 16 W.R.N. page 1 at 27-28 40-41.

The evidence against the appellant was based essentially on his identification in the dock by the Pw1 and Pw2 which was weak, suspect and unreliable, therefore I give the appellant the benefit of the doubt as Exhibits A and D the alleged confession statements have no evidence outside them to prove they have nexus with the alleged armed robbery of N25, 000 and a handset from the pw1 and the pw2 by the appellant.
All Exhibit B said on the robbery for which the appellant was tried and convicted was –
“My first robbery operation was on Sunday that we robbed one filling station along Ijebu-Ode Ibadan Express way. We robbed Thirteen Thousand Naira and my share was One Thousand Naira.”
Felico filling station is not mentioned in Exhibit B, nor does the amount of thirteen thousand Naira (N13, 000) stated therein rhyme with the N25, 000 the pw1 and pw2 alleged was the robbed money, nor is telephone handset mentioned in Exhibit B, nor is gun, a firearm, mentioned in Exhibit B to tally with the evidence of Pw1 and PW2 (supra) and the charge (supra) that a gun was used in the alleged robbery operation. Exhibit B cannot, therefore, be positive, direct and clear confession of the offences the appellant was alleged to have committed to which the PW1 and the PW2 testified as to pass the acid test in R. v. Sykes (1913) 18 Cr. APP. R. 233 as a true and binding confession of the offences charged See Afolabi v. C.O.P. (1961) ALL NLR 654 at 657-658, Njovens v. State (1973) 5 S.C. 71 or (1973) N.N.L.R. 76 at 87.
Exhibit D merely narrated the events that led to the recruitment of the appellant by one Sabo to be a member of a robbery gang. It did not mention the alleged robbery at Felico filling station stated in the charge (supra) and narrated by the evidence of the respondent’s witnesses to pass the litmus test in R. v. Sykes (supra) as a genuine, direct and positive confession of the commission of the offences in question by the appellant – See Afolabi (supra) and Njovens (supra).

There is therefore merit in the appeal in respect of the second issue (supra). I would allow the appeal. The judgment of the court below is hereby set aside. The conviction and sentence of death imposed on the appellant by the court below is accordingly quashed and, an order of acquittal and discharge entered in favour of the appellant, in consequence.

ADZIRA GANA MSHELIA, J.C.A.: I am in agreement with the Judgment prepared by my learned brother IKYEGH J.C.A. which I had the privilege of reading in advance.
The appeal has merit and it is also allowed by me. I abide by the consequential orders contained therein.

MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother J.S. Ikyegh J.C.A.
I agree with his reasoning and conclusion that the appeal is meritorious in respect of the second issue. I also abide by the consequential order contained therein.

Appearances

MR. O. AGBEBIFor Appellant

AND

O. OGUNSANWO ESQUIRE, ASSISTANT CHIEF STATE COUNSEL, (OGUN STATE)For Respondent