ODUNAYO AJAYI V. THE STATE
(2011)LCN/4549(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of May, 2011
CA/AE/18/C/2010
RATIO
ARMED ROBBERY: ESSENTIAL INGREDIENTS THAT MUST BE PROVED BEYOND REASONABLE DOUBT FOR THE PROSECUTION TO SUCCEED ON A CHARGE OF ARMED ROBBERY AGAINST AN ACCUSED PERSON AND CONSEQUENCE OF THE PROSECUTION FAILING TO PROVE ANY OF THOSE INGREDIENTS
For the prosecution to succeed on a charge of armed robbery against an accused person, the following must be proved beyond reasonable doubt:- (i) That there was robbery or series of armed robbery. (ii) That the robbery or each of the armed robberies was an armed robbery; and (iii) That the accused person/appellant was one of those who took part in the armed robbery; See Bello v. State (2007) 10 NWLR (Pt. 1043) 563: Oyebola v. State (2008) All FWLR (Pt. 402) 1175: Bozin v. State (1985) 2 NWLR (Pt. 8) 465. All those essential ingredients must be proved beyond reasonable doubt and where any of those ingredients is lacking, the prosecution would have failed to prove his case against the accused beyond reasonable doubt and the accused shall be entitled to discharge and acquittal. The ingredients co-exist. They are conjunctive and not disjunctive; therefore all must be established together. PER UWANI MUSA ABBA AJI, J.C.A.
ARMED ROBBERY: WHETHER TO SUSTAIN A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY IT MUST BE PROVED THAT THE USED OR THREATENED TO USE VIOLENCE WHEN HE STOLE THE ITEMS OR THINGS HE WAS ACCUSED OF STEALING AT THE TIME OF THE ROBBERY
It is trite that to sustain a conviction for the offence of robbery, the prosecution must prove that the accused threatened to use violence or actually used violence immediately before or immediately after the time of stealing. See Otti v. State (1991) 8 NWLR (Pt. 207) 103 at 118: Nwomukoro v. The State (1995) 1 NWLR (Pt. 372) 432 at 443Therefore, the offence of robbery is consummated if violence is used on anyone to facilitate the stealing. See Ajiloye vs. State (1983) 6 SC1. The Apex Court held in Okobi v. The State (1984) NSCC vol. 15. 520 that a conviction of robbery cannot be upheld in the absence of any finding that the Appellant used or threatened to use violence. It is therefore clear that, for the Prosecution to prove its case of robbery against the Appellant beyond reasonable doubt, it must necessarily prove that the Appellant used or threatened to use violence when he stole the items or things he was accused of stealing at the time of the robbery. PER UWANI MUSA ABBA AJI, J.C.A.
BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF NEVER SHIFTS FROM THE PROSECUTION; POSITION OF THE LAW WHERE AT THE CLOSE OF EVIDENCE AN ESSENTIAL INGREDIENT OF THE OFFENCE HAS NOT BEEN PROVED
The general or legal burden of proof which lies on the Prosecution and does not shift is in consonance with Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, which guarantees to all persons accused or charged with criminal offence the right to be presumed innocent until he is proved guilty. The constitutional provision therefore squarely places on the Prosecution the ultimate burden of proving the guilt of the accused person. Thus, the Prosecution must discharge this burden beyond doubt by proving every ingredients of the offence charged by credible evidence. See Mustapha v. State (2007) 12 NWLR (Pt. 1049) 637: Chukwu v. State (2007) 13 NWLR (Pt. 1052) 430: and Abdullahi vs. State (2008) All FWLR (Pt.432) 1047 at 1049. See also Sections 135 and 138 of the Evidence Act Cap 112, LFN 1990. Therefore, where at the close of evidence an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of the accused and he shall be discharged and acquitted. PER UWANI MUSA ABBA AJI, J.C.A.
BURDEN OF PROOF: CONSEQUENCE OF THE PROSECUTION’S FAILURE TO PROVE ANY ONE ELEMENT OF THE OFFENCE BEYOND REASONABLE DOUBT
The consequence of the Prosecution’s failure to prove any one element of the offence beyond reasonable doubt is that the Prosecution cannot be said to have proved its case against the Appellant beyond reasonable doubt even if each of the other elements was proved beyond all shadow of doubt. The Prosecution is bound to attain the same standard of proof of each element constituting the offence charged. See Utuk vs. State (2010) 34 WRN 171 at 179: Majekodunmi v. The Nigerian Army (2002) 31 NWLR 138 at 147: Saidu vs. State (2009) 29 WRN 86 at 124. The law is that an accused person is entitled to an acquittal once an essential ingredient of the offence is not proved. See also Shandy v. The State (2004) All FWLR (Pt. 223) 1955 at 1968 – 1969. PER UWANI MUSA ABBA AJI, J.C.A.
WEAPON OF CRIME: WHETHER THE FAILURE OF THE PROSECUTION TO TENDER WEAPONS OF CRIME WILL BE FATAL TO ITS CASE.
From the fact and circumstances of this case, I cannot but agree with the submission of Mr. Fowowe, Esq., for the Appellant that it is not in all respect and in all events that failure to tender weapons of crime will not be fatal to the Prosecution’s case. That is not the ratio decedendi in Gbadamosi v. The State (supra). It is not the decision in the case that failure to tender weapons of crime simpliciter will not be fatal to the Prosecution’s case. The non tendering of weapons of crime will not be fatal to the Prosecution’s case only where there is cogent, reliable and compelling evidence which leaves no room for doubt that the accused and no other committed the crime. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
ODUNAYO AJAYI Appellant(s)
AND
THE STATE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Ekiti State presided by Justice E.O. Kowe delivered on the 27th November, 2007 convicting and sentencing the Appellant on count I, for conspiracy to commit armed robbery to 14 years imprisonment and on count III for armed robbery to death by hanging.
The Appellant along with two others who were discharged and acquitted were arraigned before the lower Court on 6 count charge of conspiracy to commit armed robbery and armed robbery punishable under Sections (5) (B) and 1(2) (A) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 as amended. The Appellant and the co-accused pleaded not guilty to the two counts of conspiracy and four counts of robbery.
The facts of the Prosecution’s case is that the Appellant conspired with two other co-accused persons to rob and did carry out a series of robberies armed with a gun and other dangerous weapons. Out of the 6 counts preferred in the charge against him and his two co-accused persons, the Appellant was convicted on counts 1 and 3 whilst his co-accused persons were discharged and acquitted by the trial Court of all offences. In proof of its case, the Respondent called a total of 5 witnesses. The 6th gave incomplete testimony. PW1, PW2 and PW4 being the persons whose homes were robbed by the Appellant and his co-accused persons, although none of these witnesses was at home at the time the Appellant and his co-accused persons robbed their respective homes. PW3 Mijinyaya Nasir a Superintendent of Police who arrested the Appellant. He testified that he arrested the Appellant, not quite at the scene of crime but where he was hiding under a fowl cage at the next door compound, where he (PW3) recovered some weapons from under the car where the Appellant dropped them and thereafter handed them over to PW5, a Police Officer at the Police Station. PW5 Chidi Anthony, is the Investigating Police Officer, while PW6 CPL Gbadebo Omiranti who attempted to complete the evidence of the IPO, PW5.
At the conclusion of the prosecution’s case, the Appellant’s counsel made a no case submission which was upheld in respect of the two co-accused persons while the Appellant was asked to enter his defence.
The Appellant’s case on the other hand is a total denial of both charges of conspiracy and armed robbery.
At the conclusion of evidence and address by respective counsel, the trial Court in a considered judgment delivered on the 27th November, 2007 found the Appellant guilty of the offences of conspiracy and armed robbery in counts 1 and 3 and sentenced him accordingly to 14 years imprisonment and death by hanging.
Being dissatisfied with the decision of the trial Court, the Appellant appealed to this Honourable Court vide a Notice of Appeal, filed on the 10th December, 2007 upon 4 grounds of appeal. The grounds of appeal are hereby reproduced short of their particulars:
Grounds of Appeal
1. The learned trial Judge erred in law when it proceeded with the hearing of the charge of Armed Robbery against the Appellant in violation of the Appellant’s right to fair hearing.
2. The learned trial Judge erred in law when it rejected the defence of the Appellant and based the rejection on the extra judgment statement of the appellant which was tendered in evidence but rejected and was so marked.
3. The learned trial Judge erred in law when he convicted the Appellant on the charge of conspiracy to commit Armed Robbery having discharged the co-accused persons on the same account.
4. The entire judgment convicting the Appellant of counts 1 and 111 of the charge is against the weight of evidence.
By order of Court made on the 21st October, 2010, the Appellant filed an Amended Notice of Appeal on the 25th October, 2010 containing 4 grounds of appeal. The additional grounds of appeal are as follows:-
The learned trial Judge erred in law when he convicted the Appellant of Armed Robbery even though the prosecution did not prove the case of armed robbery against the Appellant beyond reasonable doubt.
2. The learned trial Judge erred in law when he convicted the Appellant of armed robbery without (first) presuming, pursuant to Section 149(d) of the Evidence Act, that evidence which could be but was not produced by the prosecution would, if produced, be unfavourable to the prosecution.
3. The learned trial Judge erred in law when he relied on the Appellants involuntary confessional statement to convict him even though same was not admitted in evidence and marked rejected after a trial-within-trial was conducted.
4. The learned Trial Judge erred in law when he convicted the Appellant of the offence of conspiracy to commit armed robbery, even though all his co-accused were charged including conspiracy to commit armed robbery.
Parties filed and exchanged briefs of argument. In the amended Appellant’s brief of argument settled by Segun Fowowe, Esq., deemed filed on the 13th January, 2011, learned Counsel distilled three issues for determination, namely:-
1. Whether the prosecution proved the offences of: (i) conspiracy to commit armed robbery and (ii) Armed robbery against the Appellant beyond reasonable doubt to warrant his conviction for the said offences.
2. Whether the learned trial Judge was right in law to rely on the Appellant’s involuntary confessional statement to convict him even though same was not before the court having been earlier rejected in evidence pursuant to a voir dire proceeding.
3. Whether the learned trial Judge was right to convict the Appellant of the offence of conspiracy to commit armed robbery, even though all his co-accused were discharged and acquitted of all charges including conspiracy to commit robbery.
The Appellant’s issues for determination as reproduced above, appears to have been formulated from the Appellant’s additional grounds of appeal, thus abandoning the original grounds of appeal. The original grounds of appeal are therefore deemed abandoned and accordingly discountenanced.
In the Respondent’s brief of argument settled by Bola Wale-Awe, Esq., the learned Director of Public Prosecution, Ministry of Justice, Ekiti State, the D.P.P. adopts issues 1 and 2 raised by the Appellant for the determination of the appeal while it concedes to the submissions of the appellant’s counsel on issue 3.
Having conceded to the arguments and submission of the Appellant’s counsel, the issue is therefore considered in favour of the Appellants. I must not proceed with the determination of the other issues without commending the conduct, and courage of the learned D.P.P. to the Practice of Law in our country. Having appreciated the reason and the position of the law, she conceded out rightly to the point thus, saving the precious and valuable time of the Court and the parties by going into an unnecessary determination of an issue that is worthless and without merit. I pray that all counsel will emulate this practice.
At the hearing of the appeal on the 21st February, 2011, learned counsel for the Appellant Segun Fowowe, Esq., adopted and relied on the Amended Appellant’s brief of argument dated and filed on the 16th December, 2010 but deemed properly filed on the 13th January, 2011 and urged the Court to allow the appeal and set aside the conviction and sentence of the Appellant and to discharge and acquit him.
Learned counsel for the Respondent, the Director Public Prosecution, adopted and relied on the Respondent’s brief of argument and urged the Court to dismiss the appeal.
The appeal will now be considered on the issues formulated by the Appellant.
Issue I.
Whether the Prosecution proved the offences of (i) conspiracy to commit armed robbery and (ii) armed robbery against the Appellant beyond reasonable doubt to warrant his conviction for the said offences.
Arguing this issue, learned counsel for the Appellant, Segun Fowowe, Esq, submitted that the Prosecution could and did not in law proved its case that the Appellant committed armed robbery against PW1 beyond reasonable doubt given the fact that; there was no credible evidence showing or proving that the Appellant carried or had any dangerous weapon on his person at the scene of crime and the several and overwhelming material contradictions and inconsistencies as highlighted in the particulars of the grounds 1 and 2 of the grounds of appeal, thus leaving lingering doubts in the prosecution’s case.
Learned counsel referred to Section 11 of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004, that defines “robbery” and submitted that from the definition of “robbery”, stealing and the use or threat of the use of violence while stealing are two of the elements or ingredients of the offence that the Prosecution must prove for the Appellant to be properly found guilty of the offence of robbery. It is his view that where, as in the instant case, the use or threat of use of violence is not proved, then the Appellant cannot in law be properly found guilty of robbery. He referred to the case of Nwomukoro vs. The State (1995) 1 NWLR (Pt. 372) 432 at 443 to support his contention that violence or threatened use of it is an essential element to prove the crime of robbery. He also referred to the cases of Otti vs. State (1991) 8 NWLR (Pt. 207) 103 at 118: Ajiloye vs. State (1983) 6 SC 1: Okobi vs. The State (1984) NSCC Vol. 15.520: Aruna vs. State (1990) 6 NWLR (Pt. 155) 125 at 135: to submit that for the prosecution to prove its case of robbery against the Appellant beyond reasonable doubt, it must necessarily prove that the Appellant used or threatened to use violence when he stole the items or things he was accused of stealing in the case, especially given the fact that the Appellant was punished under Section 1 (2) (a) of the Act which prescribed for death penalty. It is also submitted that the Prosecution has not proved the third element of the offence being that the Appellant had firearms or any offensive weapon with him or was in company of any person so armed when he carried out the offence of robbery. Learned counsel further submitted that for the offence of stealing in count 3 to amount to robbery, the Prosecution must necessarily adduce evidence that the Appellant used or threatened to use violence while stealing the thing or property in question. He submitted that, of the witnesses called by the Prosecution, none was asked whether they saw the Appellant use or threatened to use violence against anyone or property while stealing the property of PW1. He contended that all the Prosecution witnesses were not present at the scene when the Appellant was stealing these items or property of PW1 and could never have witnessed the use or threatened use of violence by the Appellant while he was stealing the property. He submitted that PW3 who arrested the Appellant did not see or find him at the scene but at the neigbouring compound where the Appellant was hiding and that PW3 did not testify to any use or threatened use of violence when he testified. Learned counsel therefore submitted that, given the provision of Section 11 of the Armed Robbery Act, the crime of robbery can never be proved beyond reasonable doubt without the prosecution establishing “stealing with the use or threat of the use of violence”. He therefore submitted that the Prosecution did not even lead evidence whatsoever to establish the use or threatened use of violence by the Appellant. That no evidence was led that anybody heard any gun shot or that anybody was injured or that was fearful for his or her life or that anybody witnessed the Appellant use or threatened to use violence in the commission of the crime. He therefore submitted that the Prosecution failed to prove an essential element of the offence of robbery and therefore could not and did not prove its cases of robbery against the Appellant beyond reasonable doubt.
On the consequences of the Prosecution’s failure to prove any one element of an offence beyond reasonable doubt, learned counsel referred to the following cases; Utuk vs. State (2010) 34 WRN 171: Majekodunmi vs. The Nigerian Army (2002) 31 NWLR (Pt. 138) 147: Saidu vs. State (2009) 29 WRN 86 at 124, to submit that if any one of the element of the offence is not proved beyond reasonable doubt, then the Prosecution cannot be said to have proved its case beyond reasonable doubt and the Appellant ought to be discharged and acquitted and the Court was urged to so hold.
Learned counsel referred to the judgment of the trial court and submitted that the Appellant was convicted on the strength of the evidence of PW3 and PW5 and then questions the credibility of PW3 and PW5 and submitted that they ‘manufactured’ evidence in order to mislead the Court in attempt to secure the conviction at all cost. He submitted, the Appellant was charged with robbing “with gun” when there was no evidence to support the charge that he had a gun with him, and of the 5 witnesses called by the Prosecution none of them was present at the scene of crime and none of them saw the Appellant with a gun or any offensive weapon at the scene. He reproduced the verbatim recording of PW3 and PW5s’ testimony and submitted that the witnesses did not testify that he arrested the Appellant with a gun, and the dangerous weapon said to have been recovered with the Appellant at the scene of crime was not tendered.
Learned counsel further submitted that the dangerous weapons which the prosecution testified were found on the Appellant were not tendered in evidence to prove beyond reasonable doubt that there were weapons on the person of the Appellant at the time of the commission of the crime. It is his view that the failure of the prosecution to tender the weapons supposedly in its possession cast doubt in the Prosecution’s case. He submitted that the case of Gbadamosi vs. The State (1991) 6 NWLR (Pt. 196) 182 at 206 relied on by the learned trial Judge is not an authority for saying failure of the Prosecution to tender weapons of the crime is not fatal to the prosecution’s case in any and all events whatsoever. He submitted that decision in Gbadamosi’s case is that whether or not failure to tender weapons found on the accused at the scene raises doubt in the Prosecution’s case will depend on the existence of other evidence which can still help establish the guilt of the accused person notwithstanding the failure of the Prosecution to tender the weapons. He therefore submitted that, whereas in the instant case, there are no other circumstantial evidence compellingly pointing to the guilt of the accused, failure of the Prosecution to produce the weapons would raise a presumption that if the weapons were tendered in evidence then they would be unfavourable to the Prosecution’s case if the Prosecution had produced them in evidence. He submitted that in the instant case, there was no cogent, reliable and authentic oral evidence to show or establish that there were weapons at the scene of the crime. That as a general rule, a witness can either be a truthful witness or a liar, but he cannot be both. He cited in support the case of Kalio vs. Woluchem (1985) 1 NWLR (Pt.4) 610. to submit further that the untruthful antecedent of the Police in this case casts doubt on its testimony that weapons were found on the Appellant in the absence of any other reliable evidence tendered to show that, infact the Appellant had weapons on him, and the failure of the Prosecution to tender those weapons they allegedly recovered from the Appellants is fatal to the Prosecution’s case. He also cited and relied on the cases of: Awosike vs. State (2010) 18 WRN 149 at 181 – 182: Afolabi vs. State (2010) 19 WRN 117 at 135. Learned counsel also relied on the unreported cases of Queen vs. Jacob of 16th September. 1960 Vol. 10 Pgs 138 – 9 of the “Digest of the Supreme Court cases 1956 – 1981” edited by Chief Gani Fawehinmi and Okoi vs. State 21st March. 1969 at pg. 125 of same Digest wherein the Supreme Court held that it is highly desirable for the weapon with which the offence was committed to be tendered in evidence and where not so tendered in evidence, then evidence of why it is not tendered must be led and submitted that, in the instant case, the only evidence that the Appellant had weapons with him when he committed the crimes came from PW3 and PW5, who are Policemen, when the same Police had shown to be untruthful in their testimony during the trial-within-trial, and falsified the charge by specifically including a gun in the charge sheet as one of the weapons used by the Appellant when infact they never saw any gun with him and never led any evidence to show a gun was found with the Appellant. Learned counsel thus submitted, that in the absence of any credible oral testimony that weapons were found, the failure of the Prosecution to tender the said weapons is fatal to the Prosecution’s case of armed robbery against the Appellant.
Learned counsel further submitted that, another source of doubt in the Prosecution’s case, stems from the inherent contradiction in the charge sheet. He submitted that the address of PW1 where the robbery which the Appellant was convicted took place was given on the list of proposed list of witnesses as, No 1, Ileri Street, off Opopogboro, Ado-Ekiti, while the address of one Veronica Arigbede, who was also robbed was given as No. E10, Okeode Street, Ilupeju Ekiti. Learned counsel submitted that, these robbery victims live at different addresses yet, count 3 and 4 of the charge sheet charged the Appellant and two co-accused persons, both acquitted of robbing both victims on the same day. He submitted that this is an impossibility which must necessarily cast doubt on the Prosecution’s case. Learned counsel reproduced counts 1, 3 and 4 of the charge sheet and submitted that while counts 1 and 3 of the Amended charge sheet clearly fix the Appellant at the home of PW1, at 1.30 hours on the 2nd February, 2003, count 4 accused the Appellant of stealing on the same date i.e. 2nd February, 2003 at the same time i.e 10.30 hours the property of one Veronica Arigbede who happens to leave at another address, No. E10 Okeode Street, Ilupeju, Ekiti. He thus submitted that the inherent contradiction in the charge sheet further casts doubt in the case of the Prosecution thereby precluding it from proving its case against the Appellant beyond reasonable doubt.
Responding the learned D.P.P. for the Respondent summarized the Appellant’s counsel submission on this issue and submitted that contrary to the submissions of learned counsel for the Appellant, that, it is too trite that proof beyond reasonable doubt is not one that must be beyond all iota or shred of doubt and relied on the cases of: Akinyemi v. State (1999) 6 NWLR (Pt.607) 449: Onobogu v. State (1974) 9 Sc 1. It is submitted that from the record, there is abundant evidence in the fulfillment of the required standard of proof both evidential and factual as placed on the prosecution and upon which any criminal conviction would be grounded. On the duty of the prosecution to prove its case beyond reasonable doubt, the learned D.P.P. submitted that the Apex Court has given judicial approval to the extent of the duty of the Prosecution and held that the “doubt” must be such doubt as arising from evidence before the Court and not from the imagination and any conjecture or inference not supported by the evidence as been argued by the learned Appellant’s counsel. The following cases were relied upon: Olalekan v. State (2001) 18 NWLR (Pt.746) 822: Iortim v. State (1997) 2 NWLR (Pt.490) 711: and Kalu vs. State (1988) 4 NWLR (Pt. 90) 503.
Learned D.P.P., referred to the ingredients of the offence of robbery as follows:-
(a) That there was robbery
(b) That the robbers were armed with offensive weapon;
(c) That the accused participated in the robbery.
And relied on the cases of: Bozin vs. State (1985) 2 NWLR (Pt.8) 465 at 469: Nwachukwu vs. State (1986) 2 NWLR (Pt.25) 765 at 776. The learned D.P.P. submitted that proof of the offence with which the Appellant was charged could be established by any of the three different methods, namely.
(a) By direct evidence;
(b) By circumstantial evidence;
(c) By confessional evidence. He cited the case of Emeka vs. State (2002) 14 NWLR (Pt. 734) 666 at 683 and submitted that in the instant case, the Prosecution employed one of the recognized methods, i.e. eye witness account in proving the guilt of the Appellant. He referred to the verbatim recording of the evidence of PW3 at page 22 of the record of appeal and the evidence of PW1 at page 14 of the record and submitted that there was robbery and the Appellant was involved in the robbery when he was armed with offensive weapon. It is further submitted that the fact that the owner of the apartment where items were stolen was not at home when the offence was committed is immaterial as it is possible for the offence of robbery to be committed against the property. It is also submitted that the combined effect of Section 2 (2) (a) and Section 15 (1) of Armed Robbery and Firearms (Special Provision) 1990 is that an offender who is armed with any firearms or any offensive weapon in the premises of a person using actual violence to that person or his property can be alleged of committing armed robbery against that person or against his Property.
On the non tendering of the offensive weapons used in the commission of the crime, learned D.P.P. submitted that the failure of the Prosecution to tender the offensive weapons used in the commission of the crime is immaterial once there is cogent, reliable and authentic oral evidence which the court believes and admits. Reliance was placed on the case of Gbadamosi vs. The state (1991) 6 NWLR (pt. 196) 182 at 206 and also the evidence of PW3 which the learned trial Judge believed to be cogent and reliable. It is submitted that the finding of the learned trial Judge is not perverse and urged the Court to so hold. Learned D.P.P. further submitted that the accused person can be convicted on the evidence of only one witness as it is not necessary to call every available piece of evidence in order to discharge the onus of proof lays on the Prosecution. The case of Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 at 563 was also relied upon. She referred to the judgment of the trial Court and the finding by the Court that the evidence of PW3, superior Police Officer who was an eye witness is cogent, is of high quality and credible and not perverse in any form whatsoever.
Learned D.P.P. also submitted that though no offensive weapon was tendered, there were cogent and credible evidence that the Appellant robbed violently while armed with offensive weapon and that the trial Court was right when he convicted the Appellant and sentenced him accordingly. The Court was urged to answer the issue in the affirmative.
I have carefully considered the submissions of learned counsel for the Appellant, Segun Fowowe, Esq. The sum total of the Appellant’s complaint is that the Prosecution has not in law proved the commission of the alleged offence of robbery beyond reasonable doubt in that the Prosecution has failed to establish the use of threat or violence on the part of the Appellant and the inconsistencies in the charge sheet.
Section 11 of the Robbery and Firearms (Special Provisions) Act Cap. R1 1 LFN defines “robbery” as,
“Stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen to prevent or overcome resistance to being stolen or retained.”‘
The general burden of proof lies always on a person who asserts. See Section 138 of the Evidence Act Cap 112 LFN, 1990. In criminal trials the general and legal burden of proof lies always on the prosecution and does not shift to prove the guilt of the accused person by establishing all the ingredients of the offence alleged against the accused beyond reasonable doubt by leading substantial, cogent and credible evidence which should emanate from a credible source linking the accused with the offence charged. See Mustapha v. State (2007) 12 NWLR (Pt. 1049) 637: Chukwu vs. State (2007) 13 NWLR (Pt. 1052) 430: and Abdullahi vs. State (2008) 11 NWLR (Pt. 1115) 203.
Now in the instant case, has the Prosecution proved its case against the Appellant beyond reasonable doubt? Of course, the Appellant contends otherwise. The Respondent contended that the Prosecution has discharged the burden of proof cast on it by law beyond reasonable doubt. To establish whether the Respondent has discharged this burden reference has to be made to the evidence adduced by the Prosecution at the lower Court.
In the instant appeal, the Prosecution called five witnesses to establish the case against the Appellant. I shall now review the evidence as adduced.
PW1 Dr. Sunday Ojo Akinmulegun testified that on February, 2, 2003 he was in church where he received information that his house has been broken into. He went home and was told that the Appellant was arrested and taken to the chairman of landlord. He went there and saw the Appellant, Mr. Odunayo Ajayi. He stated that the Appellant broke into his house through the window. He saw a knife being the instrument used in the theft. That the thief’s stole the following: – A set of guinea brocade, a pair of shoes and others which he cannot remember. He stated that the Appellant was handed over to the Police and he also made a statement to the Police. The witness stated under cross examination that at the time the thief’s broke into his house he was in the church. That he did not know the person who broke into his house.
PW2 Julis Ogunmilade. He testified that sometime on 21st July, 2002, he went to the church and on arrival from the church he found his house broken into. The doors were damaged. The following were stolen from his house; stabilizer, new bed sheets, one new pillow case, one unsown cloth called George in a role of 5 yards, one torchlight, N5, 000:00 cash. He stated that he reported the case to the Police. On February, 5th, 2003 Police brought some robbers arrested to his house. They confessed to the Police that they broke into his house and stole his property. He was only able to identify the stabilizer among the items recovered. All other property was not there. That the said Odunayo (Appellant) broke into his house in
February 2000 and was charged before the chief Magistrate Court and sentenced to a term of imprisonment. That he was surprised to see Odunayo again as one of those who broke into his house. He stated under cross examination that he was in the church when his house was broken into.
PW3 Adesola Ogunmilade. He testified that some time in October, 2002 his house was burgled by unknown person when he went to his place of work. One of his daughters reported to him, on getting home he found that his house had been broken into. That the thief’s broke into the house through a window. They cut the burglary proof of the window and pulled it out and entered the house and stole his property, viz video tape (Tosiba make) chargeable lamp, telephone box, jackets, his wife’s wrist watch, creams, tin milk, his wife’s bank cheque book. He reported the matter to the Police at Oke-lsa, Ado Ekiti. About six months later, Police Invited him to the Police Station in respect of the complaint lodged earlier. He stated that the Police told him that the accused persons took the Police to his house and confessed that they broke into his house some time in October, 2002 and that at the time they broke into the house they were armed with guns and dangerous weapons. That he knows the 1st and 2nd accused persons before he saw them at the Police Station.
The witnesses stated under cross examination that he reported the matter to the Police immediately his daughter reported to him of the incident and he enumerated the items stolen to the police. That the Police told him that the accused persons confessed that they burgled his house and that they were arrested with gun and other dangerous weapons. He did not see the accused breaking his house and he did not see any dangerous weapons with them. He stated further that it was the day the 1st and 2nd accused persons were picking tins in his premises that he first saw them. That the accused were brought to him from Police cell when he got to the Police station and they said they had sold the properties stolen from his house.
PW3 Mijinyaya Nasir (DSP) formally attached to the State CID Police Station Ado-Ekiti then but later attached to BOPs, Kwara State Police Command. He testified that on 2nd February, 2003 at about 10.13 am he was in bed in his house along Mountain of Fire and Miracle Church Ado-Ekiti when he heard people shouting ‘ole’ ‘ole’ ‘ole’, meaning ‘thief’ ‘thief’ ‘thief’. He quickly took his gun and went out. That he went round the area searching for the thieves. He succeeded in arresting the 1st accused (Appellant) from where he was hiding less than one of the fowl cage of his landlord. That the following were recovered from the Appellant, a knife he hold during the commission of the crime under his car where he dropped it. Also the following were recovered from the Appellant; a serah (sic) and knife,
matchet, a bunch of keys, a wrap of Indian hemp and one wrist watch etc. He stated that people in the neigbouring houses came out and went to their compound after the arrest of the 1st accused to lynch him but he prevented them from doing so. He stated that the accused told them that they were two and that the second person ran away. That he took the Appellant to the State CID Ado-Ekiti Police Station in company of one Mr. Ojo (first PW) whose house the Appellant and his co-accused person and his colleague burgled.
The witness stated under cross examination that at the time the Appellant jumped down from the house where he went to rob, he did not see him. He recovered the dangerous weapons he enumerated in his evidence in chief from the Appellant where he arrested him.
PW5 Chidi Anthony, a Police Corporal attached to State CID Ekiti State Command. He testified that on 2nd February, 2003, he was in the State CID office where an armed robbery was reported by Mr. Sunday Ojo Akinmulegun. That the case was referred to him for investigation and that the Appellant was handed over to him with the following items, one screw driver, one matchet, two bundles of keys, one knife and a wrap of weed suspected to be Indian Hemp. That the complainant and one DSP Nasir who arrested the 1st accused handed him over to him. That he visited the scene of crime in company of a team of Policemen at Opopogboro. He testified that he saw where the Appellant broke into the house of PW1. He stated that the Appellant jumped into the house of DSP Nasir PW3 and that they visited the house of DSP Nasir where the Appellant was arrested and that the Appellant was all the while throughout with them at the time of their visit to the scene of crime. That on getting back to the station, he obtained confessional statement from the Appellant under caution.
CPL Gbadebo Omirati testified as PW6. He testified that himself and Cpl Anthony Chidi were together at the CID for six years. That he is familiar with his handwriting and he can recognise his handwriting and the statement of the 2nd accused person was sought to be tendered. The evidence of this witness is inconclusive in that he has not finished testifying and was not cross examined.
For the prosecution to succeed on a charge of armed robbery against an accused person, the following must be proved beyond reasonable doubt:-
(i) That there was robbery or series of armed robbery.
(ii) That the robbery or each of the armed robberies was an armed robbery; and
(iii) That the accused person/appellant was one of those who took part in the armed robbery;
See Bello v. State (2007) 10 NWLR (Pt. 1043) 563: Oyebola v. State (2008) All FWLR (Pt. 402) 1175: Bozin v. State (1985) 2 NWLR (Pt. 8) 465. All those essential ingredients must be proved beyond reasonable doubt and where any of those ingredients is lacking, the prosecution would have failed to prove his case against the accused beyond reasonable doubt and the accused shall be entitled to discharge and acquittal. The ingredients co-exist. They are conjunctive and not disjunctive; therefore all must be established together.
The poser here is, from the evidence reproduced above, can it be said that the Prosecution discharged this legal burden of proof of all the ingredients of the offence of armed robbery against the Appellant beyond all reasonable doubt? Learned counsel for the Appellant contended that the offence of armed robbery is only complete where there is violence and where there is no threat or violence the offence of robbery is incomplete even if it’s proved that firearms or offensive weapons were used. He contended that the use of violence or the threatened use of it is an essential element to prove the crime of robbery.
The Respondent contended that the evidence of PW3, DSP Mijinyaya Nasir and PW1 Dr. Sunday Ojo Akinmulegun whose house was burgled into and property stolen shows that the Appellant was involved in the robbery and that he was armed and the fact that the owner of the apartment where the items were stolen was not at home when the offence was committed is immaterial as it is possible for the offence of robbery to be committed on the property. The Respondent further contended that the Evidence of PW3 was cogent and admissible and is sufficient to sustain the offence of robbery against the Appellant as the Court can convict on the evidence of a single witness.
The evidence of PW3 is to the effect when he heard people shouting ole! ole! ole! Meaning thief! thief! thief!, he took his gun and went out around the area searching for the thief and he succeeded in arresting him from where he was lying under one of the fowl cage of his landlord. He arrested the Appellant and recovered the following items he used during the commission of the crime, serah, (sic) a knife, matchet, a bunch of keys and a wrap of weed suspected to be Indian hemp.
Is this evidence of the Prosecution sufficient ground to prove a charge of robbery against the Appellant? It is not in dispute that the offence of robbery was committed on 2nd February, 2003 in the house of PW1 Dr. Sunday Ojo Akinmulegun and the Appellant was arrested beside the house of the PW1 by PW3, DSP Mijinyaya Nasir lying under a fowl cage armed with a knife, a matchet, a bunch of keys among others. At the time of the said commission of the robbery the owner of the property was not at home. Therefore this means that there was no use of violence or threatened use of violence as required under the Act to constitute the offence of robbery. Infact the Appellant was found hiding under a fowl cage. It is trite that to sustain a conviction for the offence of robbery, the prosecution must prove that the accused threatened to use violence or actually used violence immediately before or immediately after the time of stealing. See Otti v. State (1991) 8 NWLR (Pt. 207) 103 at 118: Nwomukoro v. The State (1995) 1 NWLR (Pt. 372) 432 at 443
Therefore, the offence of robbery is consummated if violence is used on anyone to facilitate the stealing. See Ajiloye vs. State (1983) 6 SC1. The Apex Court held in Okobi v. The State (1984) NSCC vol. 15. 520 that a conviction of robbery cannot be upheld in the absence of any finding that the Appellant used or threatened to use violence.
It is therefore clear that, for the Prosecution to prove its case of robbery against the Appellant beyond reasonable doubt, it must necessarily prove that the Appellant used or threatened to use violence when he stole the items or things he was accused of stealing at the time of the robbery..
Has this fact been proved by the Prosecution? In the instant case the Prosecution has not proved that the Appellant at the time of robbery had firearms or any offensive weapon with him or was in company of any other person so armed when he carried out the offence of robbery. The Prosecution also did not lead evidence whatsoever to establish the use or threatened use of violence by the Appellant as no evidence was led that anybody heard any gun shot or that any body was injured or that anybody was fearful for his life or that anybody witnessed the Appellant use or threatened to use violence in the commission of the crime. The Prosecution has therefore failed to prove an essential element of the offence of robbery against the Appellant beyond reasonable doubt.
The general or legal burden of proof which lies on the Prosecution and does not shift is in consonance with Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, which guarantees to all persons accused or charged with criminal offence the right to be presumed innocent until he is proved guilty. The constitutional provision therefore squarely places on the Prosecution the ultimate burden of proving the guilt of the accused person. Thus, the Prosecution must discharge this burden beyond doubt by proving every ingredients of the offence charged by credible evidence. See Mustapha v. State (2007) 12 NWLR (Pt. 1049) 637: Chukwu v. State (2007) 13 NWLR (Pt. 1052) 430: and Abdullahi vs. State (2008) All FWLR (Pt.432) 1047 at 1049. See also Sections 135 and 138 of the Evidence Act Cap 112, LFN 1990. Therefore, where at the close of evidence an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of the accused and he shall be discharged and acquitted.
In the instant case, given the provisions of Section 11 of the Robbery and Firearms Act Cap R11 LFN, 2004, the crime of robbery cannot be proved beyond reasonable doubt without the prosecution establishing stealing with the use or threat of the use of violence. The consequence of the Prosecution’s failure to prove any one element of the offence beyond reasonable doubt is that the Prosecution cannot be said to have proved its case against the Appellant beyond reasonable doubt even if each of the other elements was proved beyond all shadow of doubt. The Prosecution is bound to attain the same standard of proof of each element constituting the offence charged. See Utuk vs. State (2010) 34 WRN 171 at 179: Majekodunmi v. The Nigerian Army (2002) 31 NWLR 138 at 147: Saidu vs. State (2009) 29 WRN 86 at 124. The law is that an accused person is entitled to an acquittal once an essential ingredient of the offence is not proved. See also Shandy v. The State (2004) All FWLR (Pt. 223) 1955 at 1968 – 1969.
Mr. Fowowe Esq., of learned counsel for the Appellant also contended that the failure of the Prosecution to tender the Exhibits allegedly recovered from the Appellant at the time of his arrest is fatal to the case of the Prosecution and faulted the finding of the learned trial Judge that failure of the Prosecution to tender the offensive weapons at the trial is not fatal to the Prosecution’s case, relying on the case of: Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182 at 206 per Tobi, JCA, (as he then was).
The learned D.P.P. maintained also that the failure of the Prosecution to tender the offensive weapons used in the commission of the crime is immaterial citing in support also the case of: Gbadamosi vs. State (supra) and further submitted that there was cogent and admissible oral evidence of PW3 whom the trial Court believed to hold that the ingredients of armed robbery haven been proved against the Appellant beyond reasonable doubt and found him guilty on counts I and III and convicted him accordingly. The Respondent further submitted that the accused can be convicted on the evidence of only a witness as it is not necessary to call every available piece of evidence in order to discharge the onus of proof on the Prosecution, relying on the case of. Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521 at 563.
However, Mr. Fowowe, Esq., for the Appellant contended that the case of Gbadamosi vs. State (supra) is not an authority for saying that failure of the Prosecution to tender weapons of crime is not fatal to the Prosecution’s case in any and in all events whatsoever. He submitted that whether or not failure to tender weapons found on the accused at the scene of crime raises doubt in the Prosecution’s case will depend on the existence of other evidence which can still help establish the guilt of the accused person notwithstanding the failure of the Prosecution to tender the weapons, and that in this particular case, there was no cogent, reliable and authentic oral evidence to show or establish that there were weapons at the scene of crime.
From the fact and circumstances of this case, I cannot but agree with the submission of Mr. Fowowe, Esq., for the Appellant that it is not in all respect and in all events that failure to tender weapons of crime will not be fatal to the Prosecution’s case. That is not the ratio decedendi in Gbadamosi v. The State (supra). It is not the decision in the case that failure to tender weapons of crime simpliciter will not be fatal to the Prosecution’s case. The non tendering of weapons of crime will not be fatal to the Prosecution’s case only where there is cogent, reliable and compelling evidence which leaves no room for doubt that the accused and no other committed the crime.
Was there such cogent and compelling evidence in the instant appeal that would dispense with the tendering of the weapons of crime by the Prosecution? In other words, would the Prosecution be said to have proved that there was armed robbery when the dangerous weapons used in the commission of the armed robbery were not tendered and no explanation offered for the failure of the Prosecution to tender same? It is highly desirable for the weapon with which the offence was committed to be tendered in evidence and where not so tendered in evidence, the evidence of why it is not tendered must be led. The requirement to tender the weapon may, however be dispended with if there are credible eye witness to the crime who testified at the trial. In the instant case, it is my humble view that there was no cogent, reliable and compelling oral evidence to show or establish that there were weapons at the scene because there was no evidence that anyone was injured or hammed by the weapons or anybody was fearful for his life or that anybody witnessed the Appellant use or threatened to use the said weapons in the commission of the crime. Infact when neigbours started shouting ole! Ole! Ole!, the Appellant ran to find cover at a neigbouring house where he was arrested under a fowl cage from where he was hiding. This is not a typical of an armed robber we know but an ordinary thief.
PW3, the officer who arrested the Appellant, testified that he recovered a knife, a matchet e.t.c from under the car where the Appellant had dropped these weapons. PWs, the Police Investigating Officer, testified that the Appellant with these weapons were handed over to him at the Police Station. The Appellant denied being in possession of any offensive weapon at the time of the robbery, the alleged weapons therefore ought to have been tendered by the Prosecution to make the evidence of the Prosecution very cogent and compelling. The Appellant was not arrested at the scene but hid himself by the next compound in fowl cage. The items allegedly stolen were not recovered from him. PW3 stated that he recovered a knife, matchet and other items under his car where the Appellant dropped them after the robbery. The question then is, at what point in time did the Appellant or what opportunity did he have to quickly drop the weapons under the car before he was found under a fowl cage by the next house? The Police in the instant case, particularly PW5 testified that Appellant made confessional statement which was contested and found by the Court not to have been voluntarily made. The alleged confessional statement of the Appellant was rejected after evidence of torture meted on the Appellant by PW5 and others was established before the statement was made. The evidence of this witness is enough to cast doubt in the mind of the Court that weapons were found on the Appellant. There is therefore doubt in the evidence of witness as to the fact that the Appellant had weapons allegedly used in the commission of robbery. See Awosika vs. State (2010) 18 WRN 149 at 181.
Let me at this juncture reiterate the point made that the offence of armed robbery is a very heinous crime and accordingly the law in this country prescribes the ultimate penalty on a person convicted for committing same. In other words, a conviction thereon involves taking away of human life. Consequently trial Courts have been enjoined to exercise utmost judicial care and caution before convicting thereon. Thus, a trial Court should not convict thereon until all the ingredients of the offence have been clearly established beyond reasonable doubt. See Tanko v. The State (2008) 16 NWLR (Pt. 1043) 564.
In the instant case, the evidence led by the Prosecution at the trial Court is that of PW1, the person whose house was burgled into PW3, the Police Officer who arrested the Appellant without the items allegedly stolen and the weapons used in the commission of the crime not tendered, and PWs who investigated the commission of the robbery without tendering the offensive weapons allegedly used in the commission of the alleged robbery. The evidence of these witnesses clearly fall short of prove of the offence of armed robbery punishable with death. The burden of proof cast on the Prosecution is to establish all the ingredients of the offence alleged against the accused person beyond reasonable doubt. They have a duty to lead substantial, cogent and compelling evidence from a credible source linking the Appellant to the offence charged.
It is therefore my humble view that the Prosecution has failed in the instant appeal to prove conjunctively all the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt, and the learned trial Judge clearly exceeded his jurisdiction by convicting and sentencing the Appellant for armed robbery having found inter alia that the Prosecution failed to prove the existence of the offensive weapons mentioned in the charge sheet upon which the Appellant had taken his plea. See Afolabi vs. State (2010) 19 WRN 117 at 135. I therefore resolve this issue in favour of the Appellant.
Learned counsel contended further that the charge sheet contains a lot of contradictions particularly counts 1 and 3 and the names and addresses of proposed witnesses which put the Appellant at two different places at the same time and submitted that the inherent contradiction in the charge sheet casts doubt in the case of Prosecution thereby precluding it from proving its case against the Appellant beyond reasonable doubt.
Suffice to say that this issue was neither raised nor canvassed before the lower Court and cannot be canvassed at the appeal stage without the leave of this Court being sought and obtained and no such leave were sought for and obtained. The issue is therefore discountenanced.
Issue 2
Whether the learned trial Judge was right in law, to rely on the Appellant’s involuntary confessional statement to convict him even though same was not before the court having been earlier rejected in evidence pursuant to a viore dire proceeding.
Mr. Fowowe, Esq., for the Appellant quoted a passage from the judgment of the lower Court and submitted that the learned trial Judge relied on the evidence that was rejected and not before him in convicting the Appellant and submitted that it is trite law that the Court must confine itself to the evidence legally placed before it in determining a case and must not rely on any evidence be it oral or documentary outside the one before the Court. He relied on the case of Olayinka v. The State (2007) 5 WRN 147. The Court was urged to set aside the conviction of the Appellant on this ground.
Responding, the learned D.P.P. submitted that the trial Court with great caution dispassionately reviewed the grounds upon which the guilt and the subsequent conviction of the Appellant were grounded and that it is trite law that mere submission of counsel no matter how alluring can never serve as a substitute for the evidence oral or documentary necessary to construe the law. It is submitted that the issue raised by the Appellant has no merit whatsoever and should be resolved against the Appellant. The following cases were relied upon; Mains Ventures Ltd vs. Petrol Plast Ltd (2004) 4 NWLR (Pt.651) 151: Niger Construction Ltd. V. Okugbeni (1987) 4 NWLR (Pt.670) 787: and Igwe v. A.I.E.G. (1994) 8 NWLR (Pt. 368) at 481. It is submitted that it is most uncharitable for the Appellant’s counsel to contend that the trial Judge relied upon the rejected statement of facts to convict the Appellant. Learned D.P.P. referred to the judgment of the trial Court at page72 and the evidence of PW3 to submit that the guilt of the accused person stemmed from the pieces of evidence adduced by all the Prosecution witnesses who gave cogent and compelling testimonies of the culpability of the Appellant and not from involuntary rejected confessional statement of the Appellant. It is submitted that the issue raised by the Appellant has no merit and Court was urged to resolve same against the Appellant.
In the instant case, the Prosecution sought to tender a confessional statement purportedly made voluntarily by the Appellant who objected same on the ground that he did not voluntarily make the statement. Consequently, the trial Court ordered a trial within trial and found that the statement was not voluntarily made by the Appellant but was made involuntarily when the Appellant was tortured by the Police and the statement was rejected in evidence by the trial Court and same was accordingly marked rejected. Now Appellant contended that the learned trial Judge relied upon the rejected statement in deciding to disbelieve the Appellant on the one hand to believe the Prosecution on the other on whether the Appellant was an armed robber caught at the scene of crime, or an innocent bystander waiting for a commercial motor-cycle to take food to his sister at the hospital.
In his judgment, the trial Judge held as follows:-
“Failure of the Police to investigate the accused’s defence that he was arrested when he was looking for vehicle to board to the hospital to take food to his sick sister is not fatal to the case of the Prosecution.
Though his statements to the Police were not admitted in evidence in the interest of justice I took pain to read them and I discovered that he did not tell the Police that he was arrested when he was looking for vehicle to take him to the hospital to give food to his sick sister. I do not believe that the accused made such statement to the Police. I believe the evidence of PW3 Deputy Superintendent of Police who arrested the accused at the scene of the crime and recovered offensive weapons such as knife, matchet, screw driver, bunch of keys etc from him”.
While it cannot be denied from the passage of the judgment of the learned trial Judge quoted above, that no doubt the trial Judge looked at the statement of the Appellant that was rejected by the Court as being involuntarily made, and according to the trial Judge, he did so in the interest of justice to know whether the Police investigated his visit to the hospital to take food to his sick sister. He then came to the conclusion that, the accused has not made such statement to the Police at the time of his arrest to enable the Police to investigate same. The trial Court may not have strictly convicted the Appellant on this issue, but that strengthen his believe on the evidence of the Prosecution witnesses to come to the conclusion that the accused indeed committed the offence of robbery.
A voluntary statement of an accused person that is tendered during trial but found not to be voluntarily made on ground of torture, e.t.c. and was rejected and clearly so marked by the Court, then, the statement has seized to be a legal evidence and the Court cannot fall back on such a statement to make a finding on it one way or another.
The learned trial Judge was wrong to refer to and rely on the statement of the Appellant that was rejected in evidence as the rejected statement is not part of the legal evidence before the Court, and it has the tendency to influence the learned trial Judge’s conclusion on the issue under consideration. The reliance by the learned trial Judge on the rejected confessional statement clearly influenced the learned trial Judge’s conclusion in convicting the Appellant. It is settled law that when a finding of fact is based on inadmissible evidence, oral or documentary, the finding is perverse and an Appellate Court has a duty to interfere therewith and set it aside. I am fortified in my view with the decision of the Apex Court in Olayinka v. The State (2007) 45 WRN 147. I also resolve this issue in favour of the Appellant.
Based on the foregoing, and having resolved all the issues in favour of the Appellant, the appeal therefore succeeds and it is hereby allowed. The judgment of the lower Court delivered by Justice E.O. Kowe on 27th November, 2007 convicting and sentencing the Appellant to 14 years imprisonment for conspiracy to commit armed robbery and a sentence of death for armed robbery are hereby set aside. The Appellant is hereby discharged and acquitted.
CHIDI NWAOMA UWA, J.C.A.: I have read the judgment delivered by my learned brother UWANI MUSA ABBA AJI, J.C.A.
I agree with his Lordship’s reasoning and conclusion in allowing the appeal and setting aside the conviction and sentencing of the appellant for conspiracy to commit armed robbery and the death sentence for armed robbery and also substitute same with a discharge and acquittal.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A.
I have no hesitation in agreeing with my learned brother that this appeal is meritorious and should be allowed. In that respect, I also allow the appeal. The conviction and sentence passed on the Appellant for conspiracy to commit armed robbery and for armed robbery are hereby set aside. The Appellant is accordingly discharged and acquitted.
Appearances
Segun Fowowe, Esq., with J. O. Taiwo, Esq.For Appellant
AND
Bola Wale-Awe (Mrs.) D.P.P. Ministry of Justice, Ekiti State with Gbemiga Adaramola, Esq., DDCC and F. O. Awoniyi, Esq.For Respondent
