MAKANJUOLA v. STATE (2021)

MAKANJUOLA v. STATE

(2021) LCN/4984(SC)

In The Supreme Court

On Friday, June 04, 2021

SC.119C/2019

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

IDOWU MAKANJUOLA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal has emanated from the judgment of the Court of Appeal, Ilorin Judicial Division, delivered on May 18, 2018 in appeal NG. CA/IL/C.19/2017. By the judgment in question, the Court below, Coram C. N. Uwa, K. A. Barka, and B. M. Ugo, JJCA affirmed the conviction and sentence (to death) of the Appellant by the trial High Court of Kwara State.

Dissatisfied with the said conviction and sentence passed thereupon, the Appellant appealed to the Court below. By the vexed judgment thereof, the Court below came to the following conclusion:
In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held that the gun falls within the definition of “firearm” under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established. Therefore, the conditions under the Act were met. The Appellant was rightly convicted for illegal possession of firearms.
On the offence of armed robbery pursuant to Section 1(2) of the Act. … All the three

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ingredients were established by the prosecution at the trial Court…
In sum, having resolved all the issues against the appellant, I hold that the appeal is without merit. I dismiss it. I affirm the conviction and sentence of the appellant by the trial Court.

The Appellant’s notice of appeal is predicated upon a total of 8 grounds, thereby urging this Court to allow the appeal and set aside the conviction and sentence passed thereupon by the trial Court and affirmed by the Court below.

On February 11, when the appeal came up for hearing, the learned counsel addressed the Court and adopted the articulated argument contained in their respective briefs, there by warranting this Court to reserve judgment to today.

​The Appellant’s brief of argument, settled by M. I. Hanafi Esq on 29/05/2020, was actually deemed properly filed and served on 24/09/2020. It spans a total of 40 pages. At page 5 thereof, four issues have been couched:
(i) Whether the Court of Appeal rightly affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial; distilled from

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ground 6 of the grounds of appeal.
(ii) Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial; Grounds 3,4,5 and 8;
(iii) Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearm under Section 3 (1) of the Robbery and Firearms (Special provision Act) 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004; Ground 7
(iv) Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice. Grounds 1 and 2.

The issue No. 1 is argued at pages 5-11 of the said brief, to the effect that from the

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evidence adduced at the trial, it is apparent that the trial Court allowed the prosecution to ask the Appellant under cross-examination tending to show the Appellant was a hardened criminal, or given to armed robbery. It is submitted, that all those pieces of evidence showing facts of other criminal offences committed by the Appellant are irrelevant and inadmissible in law. See Section 82 of the Evidence Act; VIVIAN ODOGWU VS THE STATE (2015) 14 NWLR (Pt. 1373) 74 @ 107 Paragraphs E -G.
The Court is urged to be so persuaded by that authority.

It is argued that in the instant case, nothing warranted the question of bad character of the Appellant from the evidence-in-chief. The Appellant never gave evidence of his own character, thus the bad character thereof is not a fact in issue.

Further argued, that the evidence of bad character received at the trial did influence the mind of the trial Court, and occasioned a miscarriage of justice. Unfortunately, the conviction of the Appellant was affirmed by the Court below, despite the grave miscarriage of justice evident on the record.

​In the circumstances, the Court is urged to so hold and set

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aside the vexed judgment.

The issue No 2 is argued at pages 11 – 19 of the brief, to the effect that the trial Court observed the disparity between the date and the venue contained in the particulars of the offence in relation to the date and venue proved at the trial. Nevertheless, the Court below affirmed the conviction of the Appellant.

It is posited, that Section 227 of the Administration of Criminal Justice Law, Laws of Kwara State, is designed to save the charge from non-material errors in the drafting of the charge, such as error of duplicity, non-joinder, misjoinder, et al. However, the rule is allegedly not meant to render the fundamental requirements of a charge in-operative. See IBRAHIM VS STATE (2015) 11 NWLR (Pt. 1469) et al.

Further posited, that in the instant case, the Appellant was charged for an entirely different robbery other than the robbery he could have been associated with. Thus, the Court below was wrong in applying the ratios of the decisions relied upon to the present case, since the factual situations are entirely different and the cases are distinguishable from this case.
In the circumstances, the

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Court is urged to so hold.

The issue No. 3 is argued at pages 19 – 34 of the brief, thereby questioning the propriety of convicting the Appellant for the alleged illegal possession of firearms, contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act, 2004 (Supra).

It is submitted, that from the definition of the offence of illegal possession of Firearms under Section 2 of the Firearms Act (Supra), mere possession of firearms is not an offence. See BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363 @ 387 paragraph C.

It is argued, that from the provisions of Sections 3, 4, and 5 of the Firearms Act (Supra) and parts I, II and III of the Schedule thereto, the firearms mentioned therein are not ordinarily prohibited. And possession of any of them without a license would not constitute an offence under the Firearms Act (Supra).

Further argued, that the phrase “the Commissioner of Police may by order”, in Section 5 of the Act, the word “may” as couched therein is permissive or directory. It does not oblige or compel the Commissioner of Police to prohibit the firearms. Thus, until the Commissioner of Police so makes the

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order, the possession of such firearm is not an offence. See JESSICA TRADING CO. LTD VS. BENDEL INSURANCE CO. LTD (1996) 10 NWLR (Pt. 476) 1; ABEL OMOSHOLA VS. COMMISSIONER OF POLICE (1977), 4 & 5 SC 26; MOMODU VS THE STATE (2008) All FWLR (Pt. 447) 67 @ 116 Paragraphs E – G; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 124 @ 303.

By the far-reaching argument at pages 26 — 34 (Paragraphs 3.44 – 3.58) of the said brief thereof, the Appellant has urged upon this Court to depart from, and overrule the decisions thereof in BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363; THE STATE VS OLADOTUN (2011) 10 NWLR (Pt. 1256) 542; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 126 @ 149 Paragraph D.

It is posited that this Court has the necessary jurisdiction to depart from and overrule its previous decisions, though sparingly and with great hesitation. See TEWOGBADE VS OBADINA (1994) 4 NWLR (Pt. 338) 326 @ 351 Paragraphs D – F; ODI VS OSAFILE (1985) 1 NWLR (Pt. 1) 17; SHEMA VS FRN (2018) 9 NWLR (Pt. 1624) 337, et al.

​Further posited that despite the need to adhere to the principle of stare decisis, the Court is urged not to perpetuate

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the error in OKASHETU and other cases, otherwise miscarriage of justice inherent therein would continue to rule in subsequent cases. See MRS BUCKNOR MACLEAN VS INLAKS LTD (1980) All NLR 184 Per Idigbe, JSC @ 198.
The Court is urged to so hold.

The issue No 4 is canvassed at pages 34 — 38 of the brief. It is submitted in the main that from the excerpt of the judgment (at page 127 of the record), regrettably, the Court below failed to realise the basis of the Appellant’s complaint and treated same as a defence of alibi, which it found belated. This led to a miscarriage of justice. See LADO VS THE STATE (1999) 9 NWLR (Pt. 619) 369 @383 Paragraph F; OFORLETE VS THE STATE (2000) 12 NWLR (Pt. 681) 415 @ 429 paragraph H; et al.

Allegedly, the failure to consider the Appellant’s defence is a denial of his constitutional right to fair hearing. SeeEKIYOR VS BOMOR (1997) 19 NWLR (Pt. 519) 10; MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 @ 428 – 429; ONAGORUWA VS IGP (1991) 5 NWLR (Pt. 193) 593 @ 640, et al.
The Court is urged to so hold.

​Conclusively, the Court is urged upon to acquit and discharge the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Contrariwise, the Respondent’s brief, settled by Jimoh Adebimpe Mumini Esq on 09/11/2020, spans a total of 18 pages. At page 2, the Appellant’s four issues have been adopted.

On issue No. 1, it is submitted in the main, that the Appellant’s complaint on the issue tantamount to a storm in a tea cup. Further submitted, that the alleged wrongful admission of the Exhibit DWC1 has not amounted to a miscarriage of justice in the peculiar circumstances of this case. That there was no objection from Appellant’s counsel when the issue was raised at the trial. See LAWAL VS THE STATE (1966) 1 All NLR 107 per Brett, JSC @ 110 113; OKAROH VS THE STATE (1990) LPELR -2423.
In the circumstance, the Court is urged to resolve the issue No. 1 in favour of the Respondent.

The issue No. 2 is argued at pages 5 — 7 of the said brief, to the effect that the grouse of the Appellant on the issue was what he deserved as a conflict between the offence charged and the offence proved, and variation in dates and venue of the robbery as contained on the charge sheet.

​It was submitted that the variation in dates and place of the robbery cannot be regarded as

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fundamental, particularly when there is nothing on record to show that the Appellant was misled nor has that omission occasioned a miscarriage justice. Thus contended, that the conclusion thereby reached on the issue at pages 293-294 of the record is in tandem with the law, and ought not to be disturbed.
In the circumstance, the Court is urged to so hold, and resolve the issue No. 2 in favour of the Respondent.

The issue No. 3 is argued at pages 7-9 of the said brief, to the effect that the Court below was right to have affirmed the judgment of the trial Court on illegal procession of firearms, contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, CAP. R11, Laws of the Federation of Nigeria, 2004.

It is argued that a firearm, albeit a locally made gun or any other gun, must be capable of firing ammunition. See JIYA VS. THE STATE (2020) 13 NWLR (pt. 1740) 159 @ 205 paragraphs E-F.

Further argued, that the invitation by the Appellant for the Court to revisit its earlier decisions in BILLE VS. THE STATE (supra); THE STATE VS. OLADOTUN (supra); and OKASHETU VS. THE STATE (supra), is uncalled for, in view of the

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clear provision of Section 2 of the Firearms Act CAP 146, Laws of the Federation, 1990.
The Court is urged to so hold and resolve the issue 3 in favour of the Respondent.

Lastly but not the least, the issue No. 4 was argued at pages 10-12 of the brief, to the effect that the Court has a wide unfettered discretionary power to formulate its own issues in the interest of justice. Provided however, that those issues relate to the grounds of appeal and flow there from. See OMOWO-RARE VS. ONWOREWO (2010) 3 NWLR (pt. 1180) 58 @ 80; AGBARE VS. NIMRA (2008) 2 NWLR (pt. 1071) 378.

Allegedly, in the instant case, the Appellant not only raised the defense of alibi for the first time in Court, he refused to furnish the Court with particulars of the alibi so raised for the first time before the trial Court. Thus, the Court below was on a firm footing to have affirmed the decision of the trial Court.
In the circumstances, the Court is urged to resolve the issue No. 4 in favour of the Respondent.

​The reply brief thereof, filed on 17/1/2020 by the Appellant spans a total of seven pages. The submission of the learned counsel is in the main to the

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conclusive effect, that the reception of the evidence of bad character is prejudicial and thereby led to miscarriage of justice, See LAWAL VS. THE STATE (1966) 1, NLR 107 @ 110; R. VS. COHEN (1938) 3 All ER 380 @ 381; R VS. ELLIS (1910) 2 KB 746 @ 763, et al.

The Court is urged upon to so hold, that the prosecution having asserted that the gun (found in the possession of the Appellant) was a locally made gun, must of necessity show that it falls into the category of firearms that cannot be possessed without permission or licence.

Having critically albeit dispassionately, considered the complex nature of the instant appeal, the far reaching submissions of the learned counsel contained in the respective briefs thereof, I am amenable to adopting the Appellant’s four issues for determination of the appeal, anon.

ISSUE NO 1
The first issue, as copiously alluded heretofore, raises the very crucial question of whether or not the Court below was right when it affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the Appellant’s bad character at the trial. The first issue is distilled from ground 6 of

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the notice of appeal.

Instructively, the instant issue was raised as a fresh issue by the Appellant, consequent upon the leave granted there to on 19/06/2019. The said issue relates to the evidence of bad character allegedly elicited from the Appellant and the co-defendants thereof under cross-examination.

​The present Appellant was the 2nd Defendant on record at the trial in question. The Appellant while responding to a question by the prosecution under cross examination, had this to say (at page 127, lines 7 — 18 of the record):
It is true I attended Ajiogo Primary School Ketu Lagos. I did not attended Orisegun High School Ketu. I attended Immaculate High School Maryland Lagos. I am a native of Ilorin in Kwara State but I don’t know my Local Government. I lived all my life in Lagos. I know how to repair wrist watch, my father is a wrist watch repair. It is not true that I was sent to Ilorin to come and learn Arabic. My sister is still at Ilorin, her name is Fausa. I always go to Bovina Club every Friday to play as a DJ., may be am an employee but I go there only on Fridays. It is true I have never met the police who arrested me before

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the day I was arrested (demeanour noted).
I have never met the police who told me to sign before. It is not true that the gun was recovered from me. It is true I have another case of armed robbery against me before another Court.

Exhibit DWC 1 (the charge sheet regarding another armed robbery case No. KWS/7c/2014 was also tendered vide the 1st Defendant under cross examination.

According to the Appellant’s learned counsel, all those pieces of evidence showing facts of other criminal offences committed by the Appellant are not relevant, and therefore inadmissible under Section 82 of the Evidence Act (Supra).

The provisions of Section 82 of the Evidence Act are to the following effect:
82 (1): Except as provided in this section, evidence of the fact that a ‘defendant is of bad character’ is inadmissible in criminal proceedings.
(2). The fact that a Defendant is of bad character is admissible:
(a) when the bad character of the Defendant is a fact in issues or
(b) when the Defendant was given evidence of his good character.
(3) a Defendant may be asked questions to show that he is of bad character in the

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circumstances mentioned in paragraph (c) of the proviso to Section 180.
(4). Whenever evidence of bad character is admissible evidence of previous conviction is also admissible.

Invariably, the noun ‘Character’ means the qualities that aggregate to make an individual human being distinctive from others, most especially in regard to morality and behaviour. In the case of FRANKLIN VS. LYNAUGH (1988) 487 USA 164, 174, 108 SC 1 2320 @ 2327, the US Supreme Court aptly defined character as the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behaviour.
Thus, a ‘good character’ invariably denotes an individual person’s tendency to engage in lawful and moral (virtuous) behaviours. Contrariwise, the term ‘bad character’ denotes an individual person’s propensity for, or tendency toward, unlawful or immoral behaviour. See BLACK’S LAW DICTIONARY 11th edition (2019) @ 291.

​Instructively, questions regarding moral (good) character have recently occupied a central place in philosophical discourses. The reason for this development is traceable to the resurgence of

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publications on modern moral philosophy. Most particularly, in 1958 G.E.M Anscombe published a seminal article “MODERN MORAL PHILOSOPHY”. It was postulated therein by Anscombe that Kantianism and utilitarianism, the two major traditions in Western Philosophy, perilously placed the foundation for morality in legalistic notions such as duty and obligations:
To do ethics properly, Anscontbe argued, one must start with what is for human being to flourish or live well. That meant returning to some questions that mattered deeply to the Ancient Greek moralist. These questions focused on the nature of “Virtue” …of how one becomes virtuous… and of what relationships and institutions may be necessary to make becoming virtuous possible:
See STANFORD ENCYCLOPEDIA OF PHILOSOPHY @ WIKIPEDIA. Aristotle (1.384 – 322 BCE) defines good moral character:
Excellence (of character) then, is a state concerned with choice, lying in a mean relative to us, this being determined by reason and in the way in which the man of practical wisdom (Phronimos) would determine it.
Now it is a mean between two vices, that which depends on excess and that which

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depends on defect.
See NICOMACHEAN ETHICS 11.6; STANFORD ENCYCLOPEDIA OF PHILOSOPHY, op cit.

In the instant case, apart from the evidence viva voce of the Appellant, Exhibit DWC1 was equally tendered by the prosecution vide the 1st Defendant under cross-examination. The said Exhibit DWC1 was in regard to another criminal charge(KWS/7C/2014) against the Appellant and Co-accused persons facing armed robbery prosecution.

The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible: (a) When the bad character of the defendant is a fact in issue; or (b) when the defendant (unwittingly) has given evidence of good character thereof. A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act.
​The hallmark of these exceptions is that whenever evidence of bad

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character is admissible, evidence of previous conviction becomes equally admissible. See Section 82 (2), (3) & (4) of the Evidence Act (supra); ODOGWU VS THE STATE (2013) LPELR – SC 1221 2009 @ 33 – 34 Paragraphs; CHUKWUEKE VS THE STATE (1991) 7 NWLR (Pt. 205) 607 @ 618 Paragraphs E – F.
Most particularly, in the case of ODOGWU VS THE STATE (Supra), it was aptly held by this Court that the character of the Appellant was not at all relevant or in issue. That what was in issue was whether or not she killed the deceased person. And that the Appellant –
had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (a) and (b) of the Evidence Act. Per Ngwuta, JSC (of blessed memory) @ 33 – 34 paragraphs B-B.

The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence

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ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice. See UGBALA VS. OKORIE(1975) 22 SC 1; OKAROH VS. THE STATE(1990) LPELR 2423; OKEGBU VS. THE STATE (1979) 11 SC.

In the instant case, there is no doubt that even if the evidence allegedly given under cross examination by the Appellant is expunged from the record of proceedings, there would still be other pieces of veritable evidence to sustain the conviction of the Appellant.
In the circumstance, the first issue ought to be and same is hereby resolved against the Appellant.

ISSUE NO 2
The second issue raises the question of whether or not the Court below was right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the Appellant, having regards to the variance on the date and venue of the offence, as contained in the particulars of the offence, date and venue proved at the trial. The second issue is distilled from grounds 3,4,5 and 8 of the notice of appeal.

​It is a fundamental principle of

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criminal law, that every person who is charged with a criminal offence shall be presumed to be innocent until he is duly proved guilty beyond reasonable doubt. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

A fortiori, by virtue of Section 138(1) of the Evidence Act, if the commission of an offence by a party is directly in issue in any criminal or civil proceeding, it must be proved beyond reasonable doubt. See CHUKWU VS THE STATE (2007) 13 NWLR (Pt. 1052) 430; ALAKE VS THE STATE (1991) 7 NWLR (Pt.205) 567; UKPE VS THE STATE (2001) 18 WRN 84; AYUBKHAN VS THE STATE (1991) 2 NWLR (Pt. 172) 127 @ 144; BAKARE VS THE STATE (1987) 1 NWLR (Pt. 52) 579; EDE VS. FRN (2000) 18 WRN (Pt. 13); ITU VS THE STATE (2016) 5 NWLR (Pt. 1506 443 @ 465 et al.
By the combined effect of the provisions of section 36(5) of the 1999 Constitution (Supra) and Section 138 (1) of the Evidence Act(supra). The prosecution must prove its charge against the Appellant beyond reasonable doubt, otherwise, the Appellant ought to be acquitted and discharged.
It must be reiterated, that the heavy burden squarely placed upon the

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prosecution under Section 36(5) of the 1999 Constitution (Supra), and Section 138 (1) of the Evidence Act (Supra), does not shift. It is as constant as the ‘Northern Star’, or to borrow the words of the Court of Appeal “as constant as the June/July rains of Nigeria.” See ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567 Per Niki Tobi, JCA (as the learned Lord then was) @ 591 paragraph Q.
In the case of CHUKWU VS THE STATE, the trite fundamental doctrine was aptly re-echoed:
In ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial Court, nay the Appellate Court, is enjoined to ensure that nothing is taken for granted. See Martins Vs. The State (1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphs E — F; Bakare Vs The State (1988) 3 NWLR (Pt. 52) 579; (1987) 3 SC at 33; Mbenu vs. The State (1988) 3 NWLR (Pt. 84) page 615 at 626 paragraphs C — D, in which the Supreme Court held emphatically, inter alia, that –
“Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any

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shadow of doubt. Per Nnamani, JSC (of remarkable memory).”
See CHUKWU VS. THE STATE (2006) LPELR – 77 (CA) Per Saulawa, JCA (as he then was).

As alluded to above, the Appellant was charged under Sections 6 (a) and 1 (2) of the Armed Robbery and Firearms (Special Provisions) Act, 2004:
“6. Any person who –
(a) aids, counsels, abets or provides any person with firearms for use to commit an offence under Sections 1,2,3 and 4 of this Act; or
(b) conspires with any person to commit such an offence; or
(c) supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
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 than 21 years.
(2) If
(a) any offender mentioned in sub section (1) of this section is armed with any firearms or any

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offensive weapon or is in company with any person so armed; or
(b) at or immediately before or after the time of the robbery the said wounds or uses any personal violence to any person, the offender shall be liable upon conviction render this Act to be sentence to death.
Under the provisions of Section 6(a) of the Robbery and Firearms (Special Provisions) Act (Supra), the Prosecution (Respondent) has the onus of proving beyond reasonable doubt the following ingredients:
(i) The existence an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;
(ii) That the illegal act was done in furtherance of the agreement and that each of the defendants (accused) participated in the illegality.
See ABDULLAHI VS THE STATE (2008) 17 NWLR (Pt. 115) 203 @ 221 Paragraph F; GBADAMOSI VS. THE STATE (1991) 6 NWLR (Pt. 196) 182; AWOSIKA VS THE STATE (2010) 8 NWLR (Pt. 1198) 49 @ 78.
In my considered view, Section 6 of the Robbery And Firearms (Special Provisions) Act (Supra) is virtually in pari materia with Section 8 of the Accessories And Abettors Act 1861, as amended by the Criminal Law Act

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1977 of the United Kingdom, which provides:
“8. Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence of Common Law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.”
In the case of R. VS. GNANGO Appeal No. (2011) UKSC.59,
the Supreme Court aptly postulated on the fundamental doctrine of Parasitic Accessory Liability (which is akin to the principle of Criminal Conspiracy):
The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B in the course of committing it, D1 commits crime B which D2 foresees that he might commit…
There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder. All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they agreed to commit the offence, and (ii) a murder committed by D1 in the course of the affray commission of which is foreseen as a possibility … All the

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members of the group who foresee ….. that he might use the knife to commit a murder would also be liable for murder. The fact that they were also guilty of an affray would be no bar to their liability for murder.
See R. VS. GNANGO (2011) UKSC 59; (2011) LPELR – 17863 (UKSC), Per Lord Dyson @ 67 – 68 paragraphs F – E.

For a conviction for the charge of armed robbery to creditably be sustained, the prosecution is equally required to prove beyond reasonable doubt the following ingredients:
(i) That there was a robbery or series of robberies;
(ii) That the robbery was armed robbery; and
(iii) That the Defendant participated in the said armed robbery.
See – THE STATE VS SALAWU (2011) 17 NWLR (Pt. 1279) 883; IKPO VS. THE STATE (2016) 10 NWLR (Pt. 1521) 501 @ 519.

​In the instant case, the judgment of the trial Court is contained at pages 138 – 160 of the record of appeal. The judgment of the Court below is contained at pages 271 – 304 of the record of appeal.
With particular regard to the instant second issue, the finding of the Court below is at pages 293 —294 of the record.

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It was aptly found by the Court below (at pages 294 — 295 of the record) in regard to the instant issue, that the Appellant’s grouse was not that the armed robbery for which he stood trial did not take place at all, or that he was not involved therein. The only Appellant’s grouse was that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin. Likewise, the Appellant raised the issue of the date on the charge sheet being different (15/03/14) from the date given in evidence by the prosecution witnesses. As copiously alluded to above, the Court below conclusively stated:
Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014. There was no contradiction as to the date of this incident amongst the prosecution witnesses.
I hold that the place of the incident being Awolowo Road, Tanke Area, Ilorin as opposed to Sawmill Garage, where the Appellant and his colleagues were arrested with the robbed car and other items and the date given in evidence as opposed to the date on the charge sheet are not enough reasons to absolve the

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appellant of the offences charged. I hold that there was a nexus between the offences charged and the conviction of the appellant by the trial Court.”

In my considered view, the foregoing findings of the Court below are aptly cogent, unassailable and duly in league with the evidence on record. And I so hold.
In the circumstances, the second issue is hereby resolved against the Appellant

ISSUE NO 3
The third issue raises the question of whether or not the Court below properly evaluated the conviction and sentence of the Appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act. 2004 (Supra), when the prosecution did no prove that the possession of the gun (Exhibit 2) allegedly found on him was prohibited under Sections 3, 4 and 5 of the Firearms Act CAP 28 Laws of the Federation, 2004. The third issue is distilled from ground 7 of the notice of appeal.

The trial Court at page 157 (lines 1 – 33) of the record, found as a fact, to the following effect:
The gun and cartridges were tendered and admitted as Exhibits 2 and 3. PW3 said was pointed on his head

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by the 1st accused… PW3, said he was held at gun point, PW2 and PW5 said the accused in the stolen car fired a gun at them, the gun was recovered (when their bodies were searched) and it was tendered and admitted as exhibit 2. Section 2(2) (a) punishes an accused who though not in possession of firearm but he is in the company of a person is armed. Therefore, in the case at hand, the fact that one of the accused was carrying gun, one of them was carrying axe (exhibit 4) which is an offensive weapon, the 1st – 3rd accused are involved in the offence of armed robbery contrary to section 1(2) (a) of the Act.”

On the part thereof, in affirming the foregoing findings of the trial Court, the Court below stated at page 303 (lines 8 — 14) of the record:
In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held above that the gun falls within the definition of firearm under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established, therefore the conditions of the Act were met. The Appellant was rightly

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convicted for illegal possession of firearms.

Invariably, the term “firearm” denotes a weapon that expels a projectile (such as a bullet or pellets by the combination of gun powder or other explosive). Also termed gun. See BLACK’S LAW DICTIONARY 11th edition 2019 @ 778.
Thus, by the foregoing definition, ‘a firearm’ is any kind of gun specifically designed to be readily carried and used by a person. Historically, the first firearms originated in the 10th century China, when bamboo tubes containing gunpowder and pellet projectiles were mounted on spears to make the portable fire lance. This was operable by a single person, which was later used to good effect in the SIEGE OF DE’AN in 1132: Modern firearms can be described by their caliber (i.e bore diameter). For pistols and rifles this is given in millimeters or inches (eg. 7.62 mm or .38 in.), or in the case of short guns by their gauge (eg. 12 ga and 20 ga.)… A firearm is a barreled ranged weapon that inflicts damages on targets by launching one or more projectiles driven by rapidly expanding high pressure gas produced by exothermic combustion (deflagration) of

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chemical propellant, historically black powder, now smokeless powder.
According to the United Nations International Protocol on Firearms:
“Firearm” shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law.”

Originally, the ‘Dane gun’ was a type of long-barrelled flintlock musket imported into West Africa by Danish traders prior to the mid-18th century. The dane guns were used extensively within the slave trade period as goods to trade as well as a means of acquiring new slave. In 1671, the Danish Africa Company was incorporated (formally chartered by King Christian v on March 11, 1671):
In the 17th and 18th centuries, the company flourished from the North Atlantic triangular trade routes. Slaves from the Gold coast of Africa (Ghana) were traded for molasses and rum in the West Indies …
Throughout the transatlantic slave trade, it is estimated that about 12.5 million Africans were taken

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captive and 10.7 million of them were transported to the Americas. The Danish slave trade constituted about 1 percent of this trade, with “about 100, 000 Africans embarked.” Denmark was reportedly the first European colonial empire to ban its slave trade in 1792 although this effect until 1803, and illegal trading continued into the nineteenth century.
See WIKIPEDIA.
Thus, against the backdrop of the far-reaching postulations, any lingering doubt regarding whether or not a ‘Dane gun’ is indeed qualified to be regarded as a ‘firearm’ within the purview of the law, ought to have been evaporated.

Hence, in my considered view, the concurrent findings of the Court below (at pages 303 lines 8 — 14 of the Record), to the effect that the trial Court rightly convicted the Appellant for the offence of being in possession of firearms are very much apt, cogent, unassailable, and duly supported by the evidence on record.
In the circumstances, the third issue ought to be, and same is hereby resolved against the Appellant.

ISSUE NO 4
The fourth issue raises the question of whether or not the Court below understood and considered the

31

complaint raised in issue No. 1 before it, and if not, whether the non-consideration of the issue occasioned a miscarriage of justice. The fourth issue is distilled from grounds 1 and 2 of the notice of appeal.

The Appellant’s grouse herein is primarily predicated upon the issue No. 1 raised in the appeal before the Court below viz:
1. “Whether the trial Court was right in convicting the Appellant and in placing on him the burden to prove his innocence. Grounds 2 and 9.”

The issue No. 1 in question was copiously alluded to at page 273 of the record of appeal. The Court below having extensively considered the said issue at pages 286 — 291 of the record, came to the finding to the conclusive effect:
In all the above pieces of evidence, none constituted a serious plea of alibi with faces to warrant an investigation by the police. Even if indeed the appellant was a DJ at Bovina Club and was on his way there when he was accosted by the policemen, it does not remove the possibility of the appellant having been of the scene of the crime at the time the alleged offences were committed … I hold that there were no facts to investigate. The

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Appellant’s defence of alibi fails, issue one is resolved against the appellant.

The evidence of the Appellant (DW1) was copiously alluded to by the Court below at page 287 (lines 8 — 15) of the record of appeal:
I am a DJ and clock and wrist watches repairer. In year 2014, March, I wanted to go and play at Bovina Club along Yidi Road, Ilorin. I took an Okada (Commercial Motor Cycle). On our way, we were almost at Bovina Club when some policemen stopped us. I told the policemen that what was our offence because I was going to Bovina to play.
I always go to Bovina Club every Friday to play as a DJ; may be am employee hut I go there only on Fridays.

​The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. It is essentially a defense predicated upon the physical impossibility of a defendant’s guilt by placing the defendant in (an entirely) different location other than the scene of the crime at the relevant point in time. Alibi invariably denotes the quality, state or condition of having been elsewhere at the material time an offence was committed. See BLACK’S LAW DICTIONARY 11th edition, 2019 @ 90.

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plethora of veritable authorities by this Court, that it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove or attempt to disprove same. Nevertheless, there is so far no particular inflexible or invariable way of disproving an alibi. If the prosecution adduces cogent, sufficient evidence to fix a person at the scene of crime at the material time the offence was committed, his alibi is thereby logically and physically crushed, thus rendering such a plea ineffective as a defence. See PATRICK NJOVENS VS THE STATE (1973) 1 NMLR 331; GACHI VS. STATE (1965) NMLR 333; BELLO VS. THE STATE (1959) WRNLR 124; R. VS. TURNER (1957) WRNLR 34; NWABUEZE VS. THE STATE (1988) 7 SCNJ (Pt. 71) 248 @ 260.
Most interestingly, all these authorities were followed by this Court in the latter case of CHRISTIAN NWOSU VS. THE STATE (1976) 6 SC 109 and a plethora of other cases, to the extent that the defence of alibi was ceased to be:
The type of cheap panacea that it used to be in the hands of criminals. Now not only has the accused an evidential burden of eliciting some evidence with all necessary particulars which can be

34

checked to show that she was somewhere else at the time the offence charged was committed at the locus of the crime but also, if the prosecution investigates the alibi and call some evidence in disproof of it, the Judge not disregarding the defence of alibi, is yet entitled to consider it from the backgrounds of other stronger evidence, if any, linking the accused person with the crime charged.
See NDUKWE VS THE STATE (2009) LPELR 1979 (SC) Per Ogbuagu, JSC @ 49 — 50 paragraphs E — F.
Most ironically, in the instant case, there is no doubt that the defence of alibi raised by the Appellant is baseless and a sheer after thought. The Appellant not only raised the purported alibi for the first time in Court, but he woefully failed to furnish the Court with particulars thereof. See SANI VS. THE STATE (2015) 15 NWLR (Pt. 14830 522 @ 546 Paragraphs E — G.
In the circumstances, the fourth issue is hereby equally resolved against the Appellant.

Hence, having effectively resolved all the four issues raised by the Appellant against him, there is no gainsaying the fact that the appeal grossly fails, and it is hereby dismissed by

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me.
Consequently, having dismissed the appeal, the judgment of the Court of Appeal Ilorin Judicial Division, delivered on May 18, 2018 in appeal No. CA/IL/C/19/2017, ought to be and same is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC and to register the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Ilorin Division or Court below or lower Court, delivered on the 18th day of May, 2018. The appeal is sequel to the decision of the High Court of Kwara State delivered on the 30th of September, 2016 per Folayan J, which convicted and sentenced the appellant to death for the offences of conspiracy contrary to Section 97 of the Penal Code and Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act 2004 respectively. The appellant was also convicted and sentenced to ten years imprisonment for illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act.

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The charge reads:
​COUNT ONE:
That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu on or about the 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this of this Honourable Court conspired to commit an illegal act to wit: while armed with gun, robbed one Shittu Kamaldeen of one Kia Rio Saloon car with some other valuables and you thereby committed an offence contrary to Section 97 of the Penal Code.
COUNT 2
That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu, Mustapha Wasiu on or about the 153/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: unlawful possession of firearms and you thereby committed an offence contrary to Section 3(1) of the Robbery and Firearms (Special Provision) Act. Cap.R11 Laws of the Federation of Nigeria 2004.
COUNT THREE
That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu on or about the 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: while armed with gun robbed one Shittu Kamaldeen of one

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Kia Rio Saloon car with some other valuable and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms (Special provision) Act Cap. R11 Laws of the Federation of Nigeria 2004.
COUNT FOUR
That you Mustapha Wasiu on or about 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: Receiving stolen property contrary to Section 5 of the Robbery and Firearms (Special provision) Act. Cap. R11 Laws of the Federation of Nigeria 2004.

The Appellant who was the 2nd Defendant at the trial High Court is dissatisfied with the judgment of the Court of Appeal Coram:- … hence by a notice of appeal filed on 18/07/2019 appealed to this Honourable Court on Eight grounds.

FACTS
The case of the prosecution:
The case of the prosecution is that on the 5th of March 2014, the Appellant together with three other persons at about 11.30pm at Awolowo Road, Tanke Junction, Ilorin, Kwara State flagged down their victim, one Kamaldeen Shittu with a torch light. At the material time, the said Kamaldeen Shittu was driving a Kia Rio with registration

38

number FFA 626 AA. Thinking that he was coming across policemen on duty Kamaldeen stopped the vehicle. As soon as he stopped the vehicle, one of the Defendants pointed a gun on his head and the other slapped him. They requested for his car key which he surrendered to them at gun point. The complainant was sitting in the middle of the road when some policemen on patrol saw him and enquired from him why he was on the road sitting at that time of the night. He told them the story of how his car was snatched from him by the gang of robbers. The policemen sent a radio message to their office and other officers on patrol were informed. Barely 45 minutes after the incident, some officers on patrol duty saw a Kia Rio at the Sawmill Garage packed with four men inside the vehicle. They accosted them and in the course of which one of them pulled a trigger but he was shot by one of the officers. The policemen arrested all of them and they were charged to the Court. The Appellant herein was initially charged as the 3rd Defendant but ended up as the 2nd Defendant upon the withdrawal of the charge against the initial 2nd Defendant who was confirmed insane and unable to

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stand his trial.

THE CASE OF THE APPELLANT
According to the Appellant, he is a DJ at Bovita Hotels and a wrist watch repairer. He was on an Okada (bike) going to Bovina hotels when he was arrested on the Okada (commercial motorbike). He was almost at the hotel when the police stopped them and asked them to come down. The police seized the bike and put the Appellant in the police vehicle and drove him to the station. On the second day, the police asked if he had relation in Ilorin and he said yes. They gave him his phone and asked him to call his relatives to come for his bail. On the arrival of his sister at the station, the police demanded for the sum of N100,000 and informed her that if she refused to pay they would charge him to Court. The sister could not pay and hence the charge. In effect, the Appellant denied knowing anything about the robbery incident and relied on a case of extortion against the police.

THE HEARING
The prosecution called five witnesses and tendered several exhibits including a locally made gun allegedly used by the appellant and his co-accused. The gun was admitted as an exhibit 2.

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The appellant testified on behalf of himself but did not call any other witness.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, M.I. Hanafi Esq adopted the brief of argument filed on 29/5/2020 and deemed filed on 24/9/2020 and a reply brief filed on 17/11/2020. He distilled four issues for determination which are thus:-
(i) Whether the Court of Appeal rightly affirmed the condition of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial; distilled from ground 6 of the grounds of appeal.
(ii) Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regards to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial. Grounds 3, 4,5 and 8;
(iii) Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearms under Section 3(1) of the Robbery and Firearms (Special Provision Act) 2004

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when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act cap 28 laws of the Federal 2004; Ground 7.
(iv) Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice. Grounds 1 and 2.

The learned Director of Public Prosecutions, Kwara State (DPP) for the respondent adopted the brief of argument filed on 9/11/2020 and he adopted the issue donated by the appellant.

ISSUE ONE
Whether the Court of Appeal rightly affirmed the conviction of the appellant in view of the admission of the evidence tending to show the bad character of the appellant at the trial.
Canvassing the position of the appellant, learned counsel submitted that the prosecution subjecting the appellant to answer questions during cross-examination tending to show that the appellant is a hardened and habitual criminal or given to acts of armed robbery which were irrelevant and inadmissible in law under Section 82 of the Evidence Act. ​

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That those pieces of evidence influenced the learned trial judge as he relied on them and the decision thereby reached ought to have been set aside by the Court below hence the Supreme Court should right the wrong. He cited Vivian Odogwu v The state (2015) 14 NWLR (pt. 1373) 74 at 107 etc.

For the respondent, the learned DPP contended that assuring without conceding that the learned trial judge admitted inadmissible evidence in the form of Exhibit DWC1, the question is whether the admission occasioned a miscarriage of justice in the peculiar circumstances of this case which is in the negative. He relied on Ugbola v Fashawe (2005) LPELR – 3057 (SC).

That Exhibit DWC1 and the questions relating to the fact that appellant and his cohorts were standing trial in other Courts for the issue by the conduct of the appellant himself contrary to the position now brought up by the appellant. That appellant’s counsel had told the Court that appellant who was on bail was not present on the particular day proceeding because he had been arrested and in custody in respect of another offence.

​Learned counsel for the respondent submitted

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that there was no objection from appellant’s counsel when those questions were asked and the answers rendered at the trial Court. He cited Lawal v The State (1966) 1 All NLR 107 at 110 – 113.

That even if the said inadmissible evidence was expunged, there is a lot of evidence upon which the conviction would be supported and there was no miscarriage of justice. He cited Okaroh v The State (1990) LPELR – 2422.

The grouse of the appellant herein has to do with whether the evidence of bad character elicited from the appellant and his co-defendant during their cross-examination is permissible and admissible in evidence and if it was not fatal to the case of the prosecution. The response at the base of this issue is thus:-
“It is true I was arrested for another case of armed robbery apart from this one. It is true that two of the people that we are standing trial before this Court are also co-accused with me in that other case, but that case stems out of this case. I don’t know the 2nd accused before, 3rd accused is not my friend and I have never seen the face before. It is true 2nd and 3rd accused are co-accused with me in the other case but I don’t

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know their names”. The appellant was the 2nd accused at the trial Court.

In response to another question, the appellant answered thus:-
“I have never met the police who told me to sign before. It is not true that gun was recovered from me. It is true I have another case of armed robbery against me before another Court”.

The prosecution also tendered through the 1st defendant, exhibit DWC1 which is the charge sheet in another case NO.KW5/7C/2014 where appellant and others were charged for another robbery incident. This, the appellant contends prejudiced him and therefore fatal to the prosecution’s case and the Court below should have set aside the conviction of the appellant.

The respondent disagreeing with that view of the appellant contends that the conviction upon the other evidence available would still have been secured without the evidence procured during the cross-examination of the appellant including the admission of the charge sheet, DWC1. That a miscarriage of justice had not taken place on that admission.

​In resolving this question, it has to be stated that the admission of an inadmissible evidence simpliciter does not

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fatally affect a case without none. The inadmissible evidence has to be considered in context, that is to say that the appellate Court would take a look at it to see if indeed it is inadmissible and if it is what would happen to the rest of the case were it to be expunged. That is if there is any remaining legal evidence to sustain the charge or the claim before the trial Court, this is in consonance with the principle that the wrongful admission of evidence shall not necessarily or totally affect the decision of the Court unless the use of the alleged evidence occasioned a miscarriage of justice. See Ugbala v Okorie (1975) 12 SC 1 at 22 per Musdapher JSC (as he then was); Shittu v Fashawe (2005) LPELR – 3057 (SC).
In this case at hand, it has to be said that Exhibit DWC 1 and the question relating to the fact that the appellant and his cohort were standing trial in another Court for the same offence did not come out of the blues as it was in the conduct of the appellant himself that brought that into the arena. From the record, before the day on which the proceedings leading to the vexed cross-examination took place, the appellant had been absent in

46

Court as he was on bail and the excuse given by the counsel for the absence on that 20th day of October, 2015 was that “he has been arrested and in custody in respect of another offence”.
​I agree with learned counsel for the respondent that when the question under cross-examination was put to the appellant, his counsel put up no objection. That on its own does not translate to an inadmissible evidence being made admissible merely because counsel raised no objection when the evidence sought to be brought in, since the trial Court has a duty to step in to stop an inadmissible evidence being allowed in. However, where such evidence not objected to and not stopped from being admitted by the trial Court has been admitted, the appellate Court has to be careful in allowing an appeal on the ground of reception of inadmissible evidence since the appellate Court has to weigh how the inadmissible evidence has impacted the case and if it had caused a miscarriage of justice. This is because there may be other independent, cogent and credible evidence upon which the conviction of the appellant would be affirmed by the lower Court outside the inadmissible evidence

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which, supports and establish the case of the respondent beyond reasonable doubt. See Lawal v The State (1966) 1 All NLR 107 at 110 – 113.
The dictum of this Court in a similar situation settled the issue. See NNEMEKA AGU JSC in OKAROH V THE STATE(1990) LPELR 2423, held thus:-
“I believe that the complain in this case can be more appropriately described and categorised as a wrongful reception of evidence. The principle applicable in such cases is settled. I should, as it were, run a blue pencil line cross the piece of evidence which has been wrongfully admitted and see whether, if the learned trial Judge has disregarded it, he could have reached the same conclusion. If I can positively say that he would have reached the same conclusion, then the wrongful admission of evidence is not one upon which an appeal should be allowed. See Section 226 (1) of the Evidence Act; R V THOMAS (1958) 3 FSC 8.
This is yet another particular illustration of the general principle emphasised in OKEGBU VS THE STATE (1979) 11 SC 1, that a mere technical error by the Lower Court which has not embarrassed or prejudiced the Appellant or caused a miscarriage of justice

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is not a ground for which an appeal should be allowed.”

​The answer to the question earlier posed is that the admission of the answers on bad character of the appellant firstly was not prejudicial to him, the foundation thereof having been brought in by himself through his counsel. Even if it was inadmissible, it would not fatally affect the case of the prosecution as other pieces of evidence are sufficient to secure a conviction if the evidence in dispute is expunged. I resolve this issue against the appellant.

ISSUE TWO
Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the difference in the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial.
For the appellant, it was submitted that there is a fundamental conflict between the offence he was charged with and the offence proved at the trial and upon which he was convicted which breached the provisions of Section 196 of the ACJA and also a violation of Section 36 (6) of the Constitution  ​

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relating to fair hearing. He relied on Ibrahim v The state (2015) 11 NWLR (pt. 1469) 164 at 187 etc.

That the circumstances of the different date in the particulars in the charge and the offence proved showed that the prosecution had not discharged the burden of proof beyond reasonable doubt.

Countering the stance of the appellant, learned counsel for the respondent stated that the prosecution established the case beyond reasonable doubt and it is not as the appellant expected to be that proof beyond all shadow of doubt. He cited Oteki v A.G. Bendel State (1986) 6 NWLR (pt. 24); Mbachu v The State (2018) 17 NWLR (pt.1649) 395 at 404 & 405 etc.

That there is no conflict between the offence proved and the accused/appellant was not misled. He cited Section 206 of the Criminal Procedure Code, the law applicable at the time of the commission of the offence and trial.

In answer to the question raised in the issue under discourse, it was to be said that whenever anybody is charged with the commission of a criminal offence, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt by virtue of

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Section  138 of the Evidence Act. The burden on the prosecution to prove the offence against the accused is one that does not shift and includes the duty to prove all the ingredients of offence beyond reasonable doubt. Itu v The State (2016) 5 NWLR pt 1506, 443, at 465f, Eromosele V. F.R.N (2017) 1 NWLR pt. 1545, p.55 at 89f, Ibrahim v The State (2008) 17 NWLR pt.1115, 203 at 221e, Famakinwa V The State (2016)11 NWLR pt.1524, 538 at 560c.

The Appellant in this case is charged with the offence of Conspiracy and Armed Robbery contrary to Sections 6 and 1(2) of the Armed Robbery and Firearms (Special Provision) Act 2004. The Sections provide:
Section 6(a)
“Any person who-
(a) Aids, counsels, abets or procure any person to commit an offence under Sections 1, 2, 3 and 4 of this Act, or
(b) Omitted;
(c) Omitted;
Whether or not he is present when the offence is committed or attempt to be committed, shall be deemed to be guilty of the offence as a principal offender, and shall be liable to be proceeded against and punished accordingly under this act”.

Section 1 (2) a and b of the Robbery and Firearms (Special Provisions) Act

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provides:
“Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years;
Section 1 (2) if-
(a) Any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) At or immediately before or 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.”

To succeed in proving the commission of the offence of conspiracy under Section 6(a) of the Robbery and Firearms Act, the Prosecution has a burden to establish the following ingredients:
(i) The existence of an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;
(ii) That the illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
See Abdullahi v The State (2008) 17 NWLR (pt. 115) 203 at 221.

A conviction for the offence of armed robbery

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can only be obtained if it is proved that:
(i) there was a robbery or series of robberies;
(ii) That the robbery is armed robbery; and
(iii) That the accused participated in the robbery.
See
(i) State V Salawu (2011) 18 NWLR pt. 1279 883 at 617b
(ii) Ikpo V The State (2016) 10 NWLR pt. 1521 501 at 519.

The complaint of the Appellant under this issue is that the Respondent failed to prove the offence charged. The basis of the contention of the appellant is that there is a fundamental conflict between the offence he was charged with and the offence proved at the trial. According to the Appellant, the robbery he was charged with from the particulars of the offence is the robbery allegedly committed at the Sawmill Area, Ilorin on the 15/03/2014 but the robbery proved by all the prosecution witnesses is the one that took place at Awolowo Road, Tanke Area, Ilorin on 05/03/2014. On account of the variance in both the dates and the venue of the alleged robbery, the respondent could not have proved the offence with which he was charged, the Appellant contended. The first point that must be made is that it is a constitutional

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duty imposed on the prosecution to inform an accused promptly of the nature and details of the offence he is alleged to have committed by virtue of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999. This duty is one imposed to enable the accused adequately prepare for his defence and to guarantee the accused a fair hearing in the defence of the offence allegedly committed by him. It can hardly be argued that one of the surest way of securing the fair hearing of an accused is the provision of Section 109 of the Administration of Criminal Justice Law which provides for the institution of a criminal trial by way of information or by filing a charge. The charge or information is, according to the provisions of Section 203(1) of the said Law, to contain such materials like the time, the date and the place where the offence was committed “as are reasonably sufficient to give the Defendant notice of the offence which he is charged with”.
​It is true that an accused is entitled to be furnished with the time, date and place of the offence and the count and the parties bound by the charge laid against the appellant and to which he pleaded.

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See Sani v The State(2015) 15 NWLR (pt.1482) 522 at 550.

In this case, a charge was filed by the prosecution alleging that the offence took place at Sawmill Area on the 15/03/2014. In proving the said offence, the prosecution called five witnesses all of whom testified that the robbery was committed at Awolowo Road, Tanke Area, on the 5/03/2014, a place and date different and distinct from the venue and the date of the offence charged. The Appellant was convicted for the offence proved at the trial which conviction was affirmed by the Court below. The appellant contended that the conviction not only breached the provision of Section 196 of ACJA but it is a fundamental violation of the Section 36(6) of the Constitution relating to fair hearing to be accorded to an accused and from which Section 196 derived its potency. Section 196 therefore has a constitutional force.
Learned counsel for the respondent contends that inspite of the disparate dates and place, that the prosecution proved the offence of criminal conspiracy and armed robbery against the appellant beyond reasonable doubt. The point has to be made that the variation in date and place of the

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robbery would not in the peculiar circumstances of this case be regarded as fundamental when viewed from the fact that nothing on record has shown that the appellant was misled or that the differences in date and place occasioned a miscarriage of justice. The Court below properly considered the situations and held as follows:-
“As rightly observed by the learned Solicitor General, the Appellant’s grouse under this issue is not that the armed robbery he stood trial for did not take place or that he was not involved but, that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin. The important thing is that it is the same chain of events that started at Awolowo Road that ended up with the arrest of the Appellant and his colleagues by the policemen who testified as PW1, PW2 and PW5. It is noteworthy that the evidence of the prosecution witnesses was consistent as to the place or venue of the armed robbery incident to be Awolowo Road, Tanke Area, Ilorin while the gang was arrested at Sawmill Garage Area, where they escaped to, some minutes after the operation with the car and

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items robbed at Tanke.
Similarly, the learned counsel to the Appellant raised the issue of the date on the charge sheet being different (15/3/2014) from the date given in evidence by the prosecution witnesses. I would adopt the same reasons as above that the Appellant ought to have objected to the date on the charge sheet before plea was taken. Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014. There was no contradiction as to the date of the incident amongst the prosecution witnesses.”
That consideration of the Court below is proper as the matter cannot be viewed in a narrow prison but in context with other surrounding circumstances and the substantial interest of justice. See Section 206 of the Criminal Procedure Law which was the law applicable at the time of the commission of the offence and the trial.
​Again to be brought in, is that the defence did not raise any objection at the alleged omission before the trial Court hence it is untenable to bring it up at the Court of Appeal and there is no linkage between the omission and the fundamental rights of the

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appellant pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999. Also the appellant was not misled and justice was served.

ISSUE THREE
Whether the Court of Appeal properly affirmed the conviction and sentence of the appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, found on the appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004.
Learned counsel for the appellant contended that from the definition of the offence, mere possession of firearms is not an offence. He cited Sections 2, 3, 4 &5 of the Firearms Act; Bille v. The State (2016) 15 NWLR (pt.1536) 363 at 387.

That the evidence of a ballistician or a ballistician report is necessary to secure a conviction for illegal possession of the gun since a locally made gun may be a muzzle-loading gun or lesser gun.

​Learned counsel for the respondent submitted that a firearm, albeit a locally made gun or any other gun

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must be capable of firing ammunition which is what distinguishes it from other artifice. He cited Jiya v The State (2020) 13 NWLR (pt. 1740) 159 at 205; Section 2 of the Firearms Act Cap 146 Laws of the Federation 1990.

The learned justices at the Court below had held thus:-
“In the present appeal, there is nothing on record to show that the Appellant had a license to possess the gun he was found in possession of and I had held above that the gun falls within the definition of “firearms” under the Robbery and Firearms (Special Provision) Act. The three ingredients stated above were established; therefore the conditions under the Act were met. The Appellant was rightly convicted for illegal possession of firearms.”

I agree with learned counsel for the respondent that the conclusion of the learned justices of the Lower Court represent the settled position of the Law on this issue.

It is my considered humble view that a firearm, howbeit a locally made gun or any other gun, must be capable of firing ammunition. The characteristics of firing ammunition is the original function of a gun or firearm. That is what distinguish it from other

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artifice. See JIYA V THE STATE (2020) 13 NWLR (PT.1740) 159 at PAGE 205, PARAS E-F.
By virtue of Section 2 of the Firearms Act Cap 146 Law of the Federation 1990, a firearm is any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharge and includes a prohibited firearm, a personal firearm and a muzzle-loading firearm of any of the categories referred to in parts I, II, III respectively of the schedule to the Act, any component parts of such firearm.
From the provision of Section 2 of the Firearm act referred to above, any lethal barrelled weapon of any description qualifies as a firearm provided it can shoot a pellet. That provision of the law only expanded the realm of prohibition to include muzzle loading firearm of any of the categories referred to in parts I, II, III respectively of the schedule to the Act.
There was uncontroverted evidence that Exhibit 2, the locally made gun was fired at the point of arrest of the appellant and his cohorts. No better evidence to portray the use the appellant and his cohorts put Exhibit 2 at the scene of arrest.
​The learned trial judge on page 157

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of the record found thus:-
“PW3 said he was held at gunpoint, PW2 and PW5 said the accused in the stolen car fired a gun at them, the gun was recovered when their bodies were searched and it was tendered and admitted at Exhibit 2.”
The whole argument of the Appellant on whether Exhibit 2 was a prohibited firearm within the meaning of the Firearm Act is a loose argument with no reasonable end. This is because even by the express provision of Firearms Act Cap F28 Laws of the Federation of Nigeria 2004 copiously referred to by the Appellant in his brief, PART I item 8 of the schedule to the Firearms Act prohibited “Any other firearms not specified in Part II or III of the Schedule.”
PART II therefore also prohibits:-
“Short guns other than:-
(a) Automatic and semiautomatic short guns; and
(b) Short guns provided with any kind of mechanical reloading device.
The argument of the appellant on whether or not a locally made pistol is within the prohibited firearms are none fliers and of no effect, since the subject is well within what had been prohibited by law. See Firearms Act, Cap C28 Laws of the Federation 2004.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The issue is resolved against the appellant.

ISSUE FOUR
Whether the Court of Appeal misunderstood and considered the complaint raised in Issue 1 before it and if not, whether the non-consideration of the issue occasioned a miscarriage of justice.
Learned counsel for the appellant stated that this issue 4 is a complaint on the manner of approach of the Court below to issue 1 raised before it. That at the trial, the whole defence of the appellant relates to the fact that the appellant is a D.J. player at Bovina Hotel and also wrist watch repairer which the Court below treated as an alibi and not raised timeously rejected it. That this breached the appellant’s right to fair hearing and renders the trial, a nullity. He cited Adigun v A.G. Oyo State (1987) 2 N WLR (pt.56) 197 etc.

The learned counsel for the respondent contended that what the Court below used was an approach that would enable it resolve the questions before it on appeal. That the Court below had the power to reformulate issues or adopt the issue or issues drafted by any of the parties where same would enable it do justice to the appeal. He relied on Omoworare v Onwore (2010)

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3 NWLR (pt. 1180) 58 at 80 etc.

The appellant’s complaint is that the defence he put up relates to the fact that he is a DJ player at Bovina Hotel and also a wrist watch repairer and the two Courts below did not consider the defence connoted.

At the trial Court, the appellant had testified thus:-
“I am Idowu Makanjuola, I live at Okelele Ilorin. I am a D.J and clock and wrist watches repairer. In year 2014 March I wanted to go and play at Bovina Club along Yidi Road, Ilorin. I took an Okada (commercial motorcycle). On our way we were almost at Bovina Club when some policemen stopped us. I told the policemen that what was our offence because I am going to Bovina to play. They asked both of us to come down or they would beat us”.

While considering the case against the Appellant (who was the 2nd accused at the trial), the learned trial judge at the last paragraph of pages 155 stated:
“The 2nd accused’s evidence that he was a D.J. at Bovina Club is not substantiated, nobody was called from Bovina to testify that the 2nd accused is their DJ.

​The above portion of the judgment of the trial Court came under attack at the Court below as

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issue 1 before it. For ease of reference the issue reads:
“whether the trial Court was right in convicting the Appellant and in placing on him the burden to prove his innocence.”

In addressing the issue, the Court below at page 288 of the record held:
“The learned Counsel to the Appellant alleged that the trial Court had placed the burden on the Appellant to prove his innocence when the trial Court found that the Appellant did not substantiate his evidence that he is a D.J at Bovina Club by calling someone from the club to testify. It had been argued that for the prosecution to prove its case beyond reasonable doubt it ought to have visited the Bovina Hotel to ascertain whether the appellant was a D. J. there or not. This was said to have created doubt in the prosecution’s case. Exhibit D1 the extra judicial statement of the Appellant made to the police was the earliest opportunity for the Appellant to have given details of his being elsewhere when the offences were committed. The appellant ought to have given details of his presence as D.J. at Bovina Hotel at the time the alleged offence were committed, the people he was with, those who saw

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him at the hotel and who could say for sure that he was at the hotel that night doing his work. Enough particulars must be given which would start off the police investigation on the alleged alibi. All that was on exhibit D1 was under “occupation” at the heading D.J. player. Nothing else was said in the body of exhibit D1. At page 126 of the printed records in the appellant’s evidence at the trial, as Dw2 he testified as follows:……”

Further at page 127 of the record, the Appellant testified thus:
“I always go to Bovino club every Friday to play as a D.J., may be am employed but I go there only on Fridays”
The Court below stated further thus:
“The mere stating in Exhibit D1 under occupation that he is a DJ is not enough for the police to investigate without detailed particulars such as the days and hours he works, that would show that he could not have been at the scene of the alleged crime at the time but rather where he says he was. In this case nothing was said. Further at the trial the appellant testifying that he used to go to the bovina club as DJ on Fridays is not enough also, that he was on his way to Bovina Hotel

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Club when he was arrested by the police at Yidi Road Ilorin is not what could further be investigation by the police. It is settled law that for the defence of alibi to avail an accused person, the defence must be raised by him at the earliest opportunity so as to give the police enough time to investigate it and offer evidence in rebuttal or in support of it.”

The appellant contends that from the excerpt of the judgment of the Court below, it cannot be denied that the defence had not been raised timeously, the Court below rejected the said alibi. That the Court below, misconstrued the pivot of the appellant’s complaint before them.

From the furore of the complaints of the appellant which seem more academic than based on legal principles, it needs be restated that the Court of Appeal has a wide unfettered discretionary power to formulate its own issues in the interest of Justice, provided they relate to the grounds of appeal and flow therefrom. Stated in other words, an Appeal Court can formulate its own issues where in its opinion, the issues formulated by the parties would not justify or equitably dispose off the appeal before it. Further

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still, an Appeal Court can also with in the same manner, prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. See OMOWORARE VS. ONWORE (2010) 3 NWLR (PT. 1180), 58 AT 80; AGBARE VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.

What the learned justices of the Court of Appeal did was the most proper in the peculiar circumstances of this case.
The defence is nothing short of raising an alibi in the face of a clear and direct allegation of armed robbery.

Alibi means the fact or state of having been elsewhere when an offence was committed. It also means, I was not present when what is complained about happened. See AYAN vs. THE STATE (2013) 15 NWLR (PT. 13766) 34.

The appellant in raising his defence to the commission of the offence and anchored on the fact that he was a DJ and wrist watch repairer and that in the year 2014 March, referring to the date of the commission of the crime he was on his way to Bovina to play when the police arrested him for a crime in his view he did not commit in his view.

​In raising the defence, appellant was obligated to meeting the legal

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requirements of such a plea which entails that he had to furnish the necessary particulars to the police who would embark on the investigation of either confirming the alibi or debunking it. Therefore, failure to make available those needed details translated to be alibi in the first place was within his personal knowledge and the details must be furnished at the earliest opportunity.
See Sani v The State (2015) 15 NWLR (pt. 1483) 522 at 546.

It is to be noted that the appellant raised his defence of alibi for the first time in Court at the point of his defence while testifying and so the Court below was on firm footing to have affirmed the decision of the trial Court on the issue. Clearly the fair hearing right of the appellant was not breached.
I resolve the issue against the appellant.

All the issues are resolved in favour of the respondent and against the appellant, the appeal lacks merit and I dismiss it. I abide by the consequential orders made.
Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: The facts giving birth to this appeal are that the Appellant together with three other persons robbed one Kamaladeen Shittu of his Kia

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Rio car at Awolowo Road, Tanke Area, Ilorin around 11:30 pm on 5th March, 2014 while the victim was on his way home. The car was recovered from the Appellant and his cohorts by a team of police men on patrol at sawmill garage, Ilorin barely 45 minutes after the robbery incident. Items recovered from the car in their possession were all the contents of the car as previously mentioned by the victim intact. Also recovered were 2 live cartridges, a locally made pistol, which the Appellant admitted belonged to him, and a small axe.

At his arraignment at the trial High Court of Kwara State, the charge read to the accused persons indicated that the offence was committed at Sawmill garage instead of Awolowo Road, Tanke Area, Ilorin whereupon they all pleaded not guilty. At the close of trial, the Appellant was convicted for illegal possession of firearm, conspiracy to commit armed robbery and armed robbery. He was sentenced to death accordingly.

His conviction and sentence was affirmed at the Court below hence his further appeal to this Court on 8 grounds from which he distilled four issues for determination.

​I must at this juncture state that my

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learned brother, Ibrahim M. M. Saulawa, JSC had before now obliged me with a draft of the judgment just delivered. I am in full agreement with his reasoning and conclusion that the appeal is without merit. My comments herein are in appreciation of the judgment and in respect of Appellant’s issue 2 in particular. The said issue states as follows:-
“Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial?”

The facts of this case reveals that the Appellant together with his partners in crime were arrested in the stolen car on 5/3/2014 at Sawmill garage about 45 minutes after the car was stolen at Awolowo Road, Tanke area. The prosecution witnesses were consistent in their testimonies with respect to the date and scene of the event which showed beyond doubt that the car was snatched along Awolowo road, Tanke area on 5/3/2014 and not at saw mill garage on 15/3/2014 as

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contained in the charge.
Again, the appellant never objected to any defect in the charge which presupposes that he understood the charge read to him before making his plea.

This Court has held in a number of decided cases that a defect, error or omission that does not prejudice the defence would not lead to the quashing of a conviction on a charge for a known offence. The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did infact mislead the defence. See Ogbomor v State (1985) 1 NWLR (pt. 2) 223 at 242.
In the case of Idi v State (2019) 15 NWLR (pt. 1696) 448 at 478 – 479 my learned brother, Galumje, JSC observed as follows:-
“The main purpose of a charge is to give the accused person notice of the case against him. Once the charge discloses an offence with the necessary particulars that should be brought to the notice of the accused person in order to save him from being prejudiced or embarrassed, such a charge will be good in law.”
I agree that the above represents the correct position of the law. See also John v State

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(2019) 9 NWLR (pt. 1676) 160; Umar v Federal Republic of Nigeria (2019) 3 NWLR (pt. 1660) 549; David v Commissioner of Police (2019) 2 NWLR (Pt. 1655) 178.

In the instant case, I agree with my learned brother that the Appellant’s grouse was not that he took part in the robbery incident for which he was tried, but that the charge defectively claimed that the event occurred at Sawmill garage area instead of Awolowo road, Tanke area, both in Ilorin. He was not misled in the trial and I am unable to see how those minor defects prejudiced the Appellant in the trial.

It is for this reason and others more elaborately discussed in the lead judgment that I also dismiss this appeal. I abide by the orders in the lead judgment.
Appeal Dismissed.

ADAMU JAURO, J.S.C.: I had the privilege of reading before now the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I agree with the reasoning contained therein and the conclusion arrived at.

​The defence put up by the Appellant when he stated that he was a DJ going to Bovina Hotel boils down to alibi. The trial Court and the Court below did not misconceive his

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defence. The substance of his defence was that he could not have been at the locus criminis because he was on his way to the Hotel where he plays. However, not only did the Appellant raise the defence for the first time at trial, he failed to furnish the details of his alibi. The lower Court was therefore right to hold that the defence failed by reason of the Appellant’s failure to raise it at the earliest available opportunity and to furnish the details. See ADEYEMI V. STATE (2017) LPELR – 42582 (SC); KOLADE V. STATE (2017) LPELR – 42362 (SC); NDIDI V. STATE (2007) LPELR – 1970 (SC).

In any event, the mere fact that he was on his way to Bovina Hotel when he was arrested is not in itself a defence to the offence charged, neither does it mean that he was not involved in the commission of the offence.

In conclusion, I join my learned brother in dismissing the appeal as same is devoid of merit. The judgment of the Court of Appeal, Ilorin Judicial Division, delivered on 18th May, 2018 in appeal No. CA/IL/C/19/2017 is hereby affirmed.
Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother,

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Lord Justice IBRAHIM MOHAMMED MUSA SAULAWA, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

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Appearances:

  1. HANNAFI, ESQ For Appellant(s)

JIMOH ADEBIMPE MUMINI, ESQ. For Respondent(s)