THANKGOD CHIBUIKE OBIALU v. THE STATE (2017)

THANKGOD CHIBUIKE OBIALU v. THE STATE

(2017)LCN/10183(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of July, 2017

CA/B/51C/2014

RATIO

STANDARD OF PROOF IN CRIMINAL CASES: THE POSITION OF LAW ON THE STANDARD OF PROOF REQUIRED IN CRIMINAL CASES

The correct position of the law in criminal cases is that the standard of proof required in a criminal prosecution is that of proof beyond reasonable doubt. PER JIMI OLUKAYODE BADA, J.C.A.

PROOF BEYOND REASONABLE DOUBT: INSTANCES WHERE A PROSECUTION IS SAID TO HAVE PROVED ITS CASE BEYOND REASONABLE DOUBT

It is however trite that proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt, when it has proved all the ingredients of the particular offence the accused is charged with. See DIBIE VS STATE (2007) 3 SCNJ Page 160. PER JIMI OLUKAYODE BADA, J.C.A.

OFFENCE OF ARMED ROBBERY: THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY THAT MUST BE PROVED BY THE PROSECUTION BEYOND REASONABLE DOUBT

It is the law that whenever an accused person is charged with the offence of armed robbery, the burden of proof is on the prosecution to prove the following ingredients of the offence beyond reasonable doubt:

(1) That there was a Robbery;

(2) That the Robbery was an Armed Robbery;

(3) That the Appellant was one of those who took part in the Armed Robbery. See ATTAH VS STATE (Supra). PER JIMI OLUKAYODE BADA, J.C.A.

EYE-WITNESS: THE POSITION OF THE LAW WHERE WHERE AN EYE WITNESS FAILS TO MENTION AT THE EARLIEST OPPORTUNITY THE NAME OF THE ACCUSED WHOM HE ALLEGEDLY SAW COMMITTING THE OFFENCE

It is the law that where an eye-witness omits to mention at the earliest opportunity the name or names of the person or persons whom he allegedly saw committing an offence, a Court must be careful in accepting his evidence given later and implicating the person or persons charged unless a satisfactory explanation is given.

See the following cases:- ANI VS STATE (2009) 16 NWLR Part 1168 page 443 at 465 – 466 Paragraphs E- A; – ISAH VS STATE (2008) 18 NWLR Part 119 Page 285 at 294 – 295 Paragraphs F – A. PER JIMI OLUKAYODE BADA, J.C.A.

IDENTIFICATION PARADE: MEANING OF IDENTIFICATION PARADE

Identification parade is the means of establishing whether a person charged with an offence is the same person who committed the offence. PER JIMI OLUKAYODE BADA, J.C.A.

IDENTIFICATION PARADE: WHETHER IDENTIFICATION PARADE IS NECESSARY IN ALL CRIMINAL CASES

It is not in all criminal cases that identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary. See the case of STATE VS SALAMI (2011) 8 NWLR Part 1279 Page 883 at Page 620 Paragraphs G – H. PER JIMI OLUKAYODE BADA, J.C.A.

IDENTIFICATION PARADE: INSTANCES WHERE IDENTIFICATION PARADE WILL BE NECESSARY

Identification parade is necessary or essential in instances where ;

(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence, or

(b) The victim or witness was confronted by the offender for a very short time, or

(c) The victim, due to time and circumstances might not have had a full opportunity of observing the features of the accused. See STATE VS SALAMI (Supra) Page 621 Paragraph A. PER JIMI OLUKAYODE BADA, J.C.A.

GUN: MEANING OF GUN

A gun is a firearm within the meaning of Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 Volume 22 Laws of the Federation. PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

THANKGOD CHIBUIKE OBIALU Appellant(s)

AND

THE STATE Respondent(s)

JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Judgment of High Court of Justice, Ogwashi-Uku Judicial Division of Delta State of Nigeria in Charge No: A/27C/2009 ? THE STATE VS THANKGOD CHIBUIKE OBIALU delivered on the 13th day of July, 2011, wherein the Appellant was sentenced to death by hanging upon his conviction for the offences of Conspiracy to commit Armed Robbery and Armed Robbery.

Briefly, the facts of the case are that the Respondent in proof of the charge of conspiracy to commit armed robbery and armed robbery called three witnesses viz ? PW1 who identified the Appellant as one of the robbers who robbed her at about 8.00pm on the 12th day of September 2008. PW2 and PW3 are police officers who investigated the case and through whom Exhibits were tendered by the prosecution. Exhibit ?A? is the extra-judicial statement made by the Appellant. Exhibit ?B? is a revolver magazine containing two live cartridges while Exhibits C and C1 are two expended cartridges.

?The Appellant testified for himself and did not call any other witness. He

denied the offences and testified that he did not commit any of the alleged crimes.

The lower Court at the conclusion of trial discharged and acquitted the Appellant on counts 2 and 4 but found him guilty of the offences of Conspiracy to commit Armed Robbery in count 1 and Armed Robbery committed against PW1 in count 3. He was sentenced to death.

Dissatisfied with his conviction by the lower Court, the Appellant appealed to this Court.

The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduced as follows:-
(1) Whether the lower Court rightly held that the prosecution proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 2, 3 & 5).
(2) Whether the Appellant?s trial and conviction for the offence of Conspiracy upon a charge which did not name any person with whom the Appellant was alleged to have conspired, did not lead to a miscarriage of justice against the Appellant. (Distilled from Ground 4).

On the other hand, the Learned Counsel for the Respondent

formulated a lone issue for the determination of the appeal. The issue is reproduced as follows:-
?Whether the Learned trial Judge was right in law when he held that the prosecution proved its case against the accused person beyond reasonable doubt. (Distilled from Grounds 1, 2, 3, 4 & 5)?

At the hearing of this appeal on 3rd day of May 2017, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court, delivered on 13/7/2011. He stated that leave was granted to the Appellant to file the notice of appeal on 15/4/2013 and the said notice of appeal was filed on 22/4/2013.

The record of appeal was deemed as properly compiled and transmitted on 19/1/2015. The Appellant filed further amended notice of appeal on 4/10/2016 and it was deemed as properly filed on 3/5/2017. The amended Appellant?s brief of argument was filed on 4/10/2016 and deemed as properly filed on 3/5/2017.

The Learned Counsel for the Appellant adopted the said Appellant?s brief and relied on it as his argument in urging that the appeal be allowed.

?The Learned Counsel for the Respondent also

referred to the Respondent?s brief filed on 19/1/2016. The said brief was deemed as properly filed on 3/5/2017.
He adopted the said Respondent?s brief and relied on it as his argument in urging that the appeal be dismissed.

I have carefully examined the issues formulated for the determination of the appeal by Counsel for the parties. The issues are similar but the lone issue formulated by the Respondent encapsulates the two issues of the Appellant. I will therefore rely on the lone issue formulated by the Respondent because it is apt in the determination of this appeal.

ISSUE FOR THE DETERMINATION OF THE APPEAL
?Whether the Learned trial Judge was right in law when he held that the prosecution proved its case against the accused person beyond reasonable doubt.?

The Learned Counsel for the Appellant submitted that the lower Court was wrong in holding that the prosecution had established its case beyond reasonable doubt when the evidence of the prosecution witnesses, particularly PW1 who identified the Appellant fell short of the standard required to establish proof of guilt in a criminal trial.

He submitted that in a charge of armed robbery, the burden of proof is on the prosecution to prove the following ingredients of the offence beyond reasonable doubt.
(I) That there was an armed robbery or series of robbery;
(II) That the said robbery was an armed robbery;
(III) That the Appellant was one of those who took part in the armed robbery.

He relied on the following cases:-
– BOZIA VS THE STATE (1985) 2 NWLR Part 8 Page 465 at 473 Paragraph D;
– ATTAH VS STATE (2010) 10 NWLR Part 120 Page 190 at 224 Paragraphs B ? F;
– SUNDAY VS STATE (2010) All FWLR Part 548 Page 874;
– SECTION 135 (1) AND (2) OF THE EVIDENCE ACT.

It was also contended on behalf of the Appellant that the Appellant is not expected to prove his innocence and that whenever there is a doubt from the prosecution?s case, the doubt is to be resolved in favour of the accused person. He relied on the following cases:-
– CHIANUGO VS STATE (2002) 2 NWLR Part 750 Page 225 at 236 Paragraphs F ? G;
– NDIDI VS STATE (2007) 13 NWLR Part 1052 Page 663.

The Learned Counsel for the Appellant contended that there

is no physical evidence linking the Appellant with the crimes alleged against him. He went further that PW2 and PW3 were not eye-witness to the alleged crime and that the Appellant was convicted entirely on the evidence of recognition given against him by PW1.

In this case, the Learned Counsel for the Appellant stated that the lower Court found that defence conceded the fact that there was a robbery and that the defence did not admit that it was an armed robbery. It was also contended that the prosecution?s evidence on identity was not credible.

He submitted that whenever the case of an accused depends wholly or substantially on the correctness of the identification of the accused or defendant which the defence alleged to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused. He relied on the following cases:-
– R VS TUMBULL & OTHERS (1976) 3 All E.R. Page 549;
– HAUSA VS THE STATE (1994) 6 NWLR Part 350 Page 281 at 322 Paragraphs F ? G.

The Learned Counsel for the Appellant made reference

to the fact that PW1 testified that she was robbed by the Appellant and five other boys at about 8.00pm in the evening of 12/9/2008. After the robbers left, she did not make a report of the alleged robbery to police, it was the following morning when she went to buy eggs that she saw the Appellant on her street. She said she recognized him and held him. The Appellant was beaten and taken to police station where PW1 made a statement.

Learned Counsel for the Appellant submitted that at the earliest opportunity, PW1 did not describe the Appellant. He went further in his submission that even though PW1 claimed not to have known the Appellant?s name, it would have been natural to expect that the morning after the robbery when she made a statement to police, she should have described the Appellant and the circumstances that enabled her to recognize the Appellant as one of the alleged armed robbers.

?While under cross-examination by the defence, the Appellant referred to a statement she made to police on 16/9/08, which was not tendered in evidence but that the trial Judge relied on the said statement as the basis for holding that PW1 mentioned the name

of the Appellant to the police at the earliest opportunity.

The Learned Counsel for the Appellant submitted that by relying on a statement that was not tendered in evidence during the trial, the lower Court occasioned a miscarriage of justice against the Appellant. He relied on the following cases:-
– STATE VS OGBUBUNJO (2001) 2 NWLR Part 698 Page 576;
– NWABUEZE VS STATE (1988) LPELR ? 2080 (SC) at Page 11 Paragraphs A ? B.

He went further in his submission that lies told by accused person do not relieve the prosecution of its duty to prove offence charged beyond reasonable doubt. He referred to statement made by the Appellant which was admitted in evidence as Exhibit ?A?.

It was submitted on behalf of the Appellant that based on the foregoing, charge of Armed Robbery and the offence of Conspiracy to commit Armed Robbery were not proved against the Appellant beyond reasonable doubt.

He also stated that there is no mention of anyone with whom the accused is alleged to have conspired. He submitted that the prosecution?s evidence and submission before the lower Court goes to no issue as there is

no charge that he acted in concert with others, he went further that the evidence adduced by the prosecution did not meet the quality required to prove offence of conspiracy.

He concluded his submission that the offence of conspiracy to commit armed robbery was not proved against the Appellant.
He therefore urged that this appeal be allowed.

In his response, the Learned Counsel for the Respondent submitted that the lower Court was right in holding that the prosecution has established its case against the accused beyond reasonable doubt.

He also stated that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the prosecution to prove the ingredients of the offence viz:-
(a) That there was a Robbery;
(b) That the said Robbery was an Armed Robbery;
(c) That the Appellant was one of those who took part in the Armed Robbery.

He relied on the cases of:-
– ATTAH VS STATE (2010) 10 NWLR Part 1201 Page 190 at Page 224 Paragraphs B ? F.
The Learned Counsel referred to the evidence of PW1 i.e. the victim of the robbery in proving the ingredients of the offence.

On the issue that at the earliest opportunity PW1 did not describe the Appellant, the Learned Counsel for the Respondent referred to the record of appeal page 6 where during cross-examination, the PW1 stated thus:-
?I did not know the name of the accused person before the incident at the time I made my statement ?.. I have seen a portion of a statement shown to me to the effect that I later knew the boy?s name to be ThankGod Chibuike ..dolu?..?

He argued that the lower Court did not place any reliance on the statement of PW1 which was not tendered in evidence. On the issue of conspiracy, the Learned Counsel for the Respondent submitted that the offence of Conspiracy is established as a matter of inference to be deduced from the criminal acts of the parties concerned. It is the meeting of minds of the Conspirators and it needs not be a physical meeting.

He therefore submitted that the offence of Conspiracy to commit Armed Robbery was proved against the Appellant beyond reasonable doubt. He finally urged that the appeal be dismissed.

?In this appeal under consideration, the Learned Counsel

for the Appellant contended that the lower Court was wrong in holding that the prosecution had established its case beyond reasonable doubt.

The correct position of the law in criminal cases is that the standard of proof required in a criminal prosecution is that of proof beyond reasonable doubt.

Under Section 135(1) of the Evidence Act 2011, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

Robbery;
(2) That the Robbery was an Armed Robbery;
(3) That the Appellant was one of those who took part in the Armed Robbery.
See ATTAH VS STATE (Supra).

In this appeal, in order to prove that (1) That there was a robbery, the PW1, Stella Ijendu, an eyewitness and victim of the crime i.e. the Armed Robbery, stated in examination-in-chief as follows:-
?I know the accused person. On 12/9/08, the accused person and 5 other boys came to my shop with guns. This was at about 8.00pm. They collected my money, the sum of N6,500.00 and MTN cards worth N7,000.00. They also took away my husband?s wristwatch worth about N2000.00.?

With the above evidence, there is no doubt that there was a Robbery.
On the 2nd ingredient that the said Robbery was an Armed Robbery, the PW1 stated in examination-in-chief thus:-
?On 12/9/08, the accused person and 5 other boys came to my shop with guns . they collected my money, the sum of N6,500.00 and MTN cards worth N7,000.00.?

A gun is a firearm within the meaning of Section 15(1) of the Robbery and Firearms (Special Provisions) Act

Cap 398 Volume 22 Laws of the Federation.

On the 3rd Ingredient, that the Appellant was one of those who took part in the armed robbery, the evidence of PW1 in examination-in-chief is relevant viz:-
?On 12/9/08, the accused person and 5 other boys came to my shop with guns.? ? ?Before this incident I had been seeing the accused person passing my shop frequently. When I held him, I asked him to return my money he took and the money for the cards.?

It is clear from the evidence above that the accused person was among the armed robbers who robbed PW1. She adduced sufficient evidence to fix the Appellant at the scene of crime in view of the fact that she was a victim of the Robbery and an eye witness to the incident.

It has been contended by the Learned Counsel for the Appellant that at the earliest opportunity, PW1 did not describe the Appellant.

?It is the law that where an eye-witness omits to mention at the earliest opportunity the name or names of the person or persons whom he allegedly saw committing an offence, a Court must be

careful in accepting his evidence given later and implicating the person or persons charged unless a satisfactory explanation is given.
See the following cases:-
– ANI VS STATE (2009) 16 NWLR Part 1168 page 443 at 465 ? 466 Paragraphs E ? A;
– ISAH VS STATE (2008) 18 NWLR Part 119 Page 285 at 294 ? 295 Paragraphs F ? A.

In this appeal, satisfactory evidence was given as to why the name of the Appellant was not mentioned at the earliest opportunity. See page 6 of the record of appeal, during cross-examination of PW1, Stella Ijendu, she stated thus:-
?I did not know the name of the accused person before the incident. The time I made my statements I did not know his name. I have seen a portion of a statement shown to me to the effect that I later knew the boys name to be Thankgod Chibuikedolu. I never stated such to the police.?

It has been alleged by Learned Counsel for the Appellant that the lower Court relied on statements not tendered in evidence. But it is clear from the Judgment that the lower Court discountenanced the submissions by the prosecution which is predicated on the statement

of PW1 not tendered in evidence when it held at page 37 of the record thus:-
?The Court will pause here to observe that some of the submissions of the Counsel for the state are based on the statements of PW1 to the police. The statement is not before this Court and does not therefore, constitute evidence on which the Court can act. That part of Counsel?s submission ought to be and is hereby discountenanced.?

I am therefore of the view that since the trial Judge discountenanced submissions of Counsel based on statement of PW1 and did not rely on it, therefore no miscarriage of justice was occasioned against the Appellant. See the case of ISAH VS THE STATE (Supra) Page 1250 Paragraphs D ? F on the proper approach of trial Court to identification of accused not given at the earliest opportunity. See also Page 33 of the record of appeal line 25.

On the issue about the evidence of event at night given by the PW1, the PW1 stated that the crime was carried out at about 8.00pm on 12/9/08 and that the robbers were armed. On page 5 of the record of appeal, she stated thus:-
?On 12/9/08, the accused person and 5

other boys came to my shop with guns. That was at about 8.00pm.”
On page 6 during cross-examination, she stated thus:-
?That night, the accused person was wearing a polo T-Shirt with lines. There was light that night. The polo was black/white while the shorts are ?carton? colour.?

From the above evidence, there was light and PW1 had sufficient presence of mind to identify the Appellant as the person whom she has been seeing passing her shop frequently. The evidence of PW1 was not flawed under cross-examination.
I am therefore of the view that PW1 gave a graphic and vivid account as a person who was at the locus criminis.
The issue on identification parade was also raised.

Identification parade is the means of establishing whether a person charged with an offence is the same person who committed the offence.
It is not in all criminal cases that identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary. See the case of ?STATE VS SALAMI (2011) 8

NWLR Part 1279 Page 883 at Page 620 Paragraphs G ? H.

Identification parade is necessary or essential in instances where ?
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence, or
(b) The victim or witness was confronted by the offender for a very short time, or
(c) The victim, due to time and circumstances might not have had a full opportunity of observing the features of the accused.
See ? STATE VS SALAMI (Supra) Page 621 Paragraph A.

Also in OCHIBA VS STATE (2011) 17 NWLR Part 1277 Page 663 at 694 Paragraphs E ? F, the Supreme Court per Adekeye JSC, held on whether identification evidence by a single witness can ground a conviction in a murder case thus:-
?It is not in every case that an identification parade of suspect is necessary. Where the prosecution witness has knowledge of the person who committed an offence, an identification parade is not necessary.?

In this appeal under consideration, the PW1 was familiar with the Appellant before the incident and she made a positive and unequivocal identification

of him. An identification parade is unnecessary. The Appellant was validly identified by the PW1 as one of the robbers who came to her shop at 8.00pm on 12/9/08.

Under cross-examination at the lower Court, the PW1 stated thus:-
?Before the date of the incident, I knew the accused person. He was passing my shop frequently
?Out of the 6 people, I knew only the accused person before that date. I was able to identify the accused person the following day because I had known him before that date…
That night the accused person was wearing a polo T-Shirt with lines. There was light that night. The polo was black/white while the shorts are ?carton? colour.”

?The Learned Counsel for the Appellant also contended that the count of Conspiracy against the Appellant was defective and that the offence of conspiracy was not proved against the Appellant. The Learned Counsel for the Respondent holds a contrary view. He submitted that the offence of Conspiracy to commit Armed

Robbery was proved against the Appellant.

The offence of conspiracy is complete when two or more people agree to do an unlawful act or do a lawful act by an unlawful means. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. It is immaterial that the persons had not met each other.
See ? ADEJOBI VS STATE (2011) 12 NWLR Part 1261 Page 347 at 378 ? 379 Paragraphs H ? C.
The evidence of the plot between the conspirators is difficult to prove, but the Courts have established the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and the meeting of the mind need not be physical.

?In this appeal under consideration, the offence of conspiracy can be inferred from the evidence-in-chief of PW1 who opined that the accused person in the company of five (5) other boys on 12/9/2008, came to her shop where she was robbed at gunpoint. It cannot be a coincidence that all of them met at the scene of the

robbery at the same time, even if they did, having all participated actively in the Armed Robbery and leaving together, the only reasonable inference to be deduced is that they were all at the scene of crime in pursuance of a common criminal purpose which was to rob the PW1 of her property while armed with guns.

From the totality of the evidence put forward by the prosecution and the evaluation of the same by the lower Court, there is no doubt that there was indeed a meeting of the minds of the Appellant and others manifested by the overt act of robbing PW1 with guns. I am of the view that the offence of Conspiracy to commit armed robbery against the Appellant has been proved beyond reasonable doubt.

It was alleged that the count of Conspiracy was defective. I am of the view that an objection to a charge for any formal defect on the face thereof must be taken immediately after the charge had been read over to the accused and not later. See the case of ? SHEHU VS STATE (2010) 8 NWLR Part 1195 Page 112 at Page 131 Paragraphs D ? H.
Section 167 of the Criminal Procedure Act and Section 168 states as follows:-

<br< p=””</br<20

?167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.
168. No Judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court nor .?

The defect alleged by the Learned Counsel for the Appellant is that there is no mention of anyone with whom the accused is alleged to have conspired at the lower Court.
I am of the view that the non-inclusion in the charge of the person with whom the accused is alleged to have conspired in the charge is a mere irregularity because the accused was not misled by the omission in the particulars of offence. See the case of ALINTAH VS FEDERAL REPUBLIC OF NIGERIA (2010) 6 NWLR Part 1191 Page 508 at Page 528 Paragraphs E ? H.
In addition, a defective charge could in appropriate cases be cured, as defect in charge which does not render it bad

in law. It cannot nullify a conviction so long as an offence known to law is disclosed in the charge and the accused is not misled.
In conclusion, I am of the view that the drafting of count 1 was inelegant but I do not think that on the face of the charge there was any doubt that the Appellant was charged with Conspiracy to commit Armed Robbery. The Appellant was not misled in any way in that he understood what he was charged with and he defended it to the best of his ability. See ? OGUNO VS STATE (2011) 7 NWLR Part 1246 Page 316 at Page 336 Paragraphs A ? B.

Consequent upon the forgoing, I find nothing irrelevant, extraneous or arbitrary in the Judgment of the lower Court. It is therefore not necessary to disturb it.

This lone issue for determination of this appeal is resolved in favour of the Respondent and against the Appellant.
In the result, it is my view that this appeal lacks merit and it is hereby dismissed.

The Judgment of the lower Court in Charge No ? A/27C/2009 ? THE STATE VS THANKGOD CHIBUIKE OBIALU delivered on 13th day of July, 2011 which sentenced the Appellant to death by hanging is hereby affirmed.

Appeal dismissed.

PHILOMENA MBUA EKPE, J.C.A.: The lead Judgment just delivered by my learned brother, J.O. NADA, JCA, was served on me in draft. Having perused same, I am in tandem with his reasoning and conclusion that this appeal lacks merit and it is hereby dismissed.
Accordingly, the judgment of the lower Court in Charge No. A/27c/2009 delivered on the 13th day of July, 2011 sentencing the Appellant to death by hanging is affirmed.
Appeal dismissed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Jimi Olukayode Bada, JCA just delivered. I agree with my learned brother that the live issue for the determination of this appeal is the lone issue concisely and precisely distilled by the respondent.

As characteristic of my learned brother the sole issue has been adequately considered and elaborately dealt with. I am in agreement with the reasoning and conclusions in the leading judgment that the guilt of the appellant was proved beyond reasonable doubt, as required by law.

?I also dismiss the appeal and affirm the

judgment of the trial Court.