THE STATE v. MICHAEL OMO FADEZI(2018)

THE STATE v. MICHAEL OMO FADEZI

(2018) LCN/4600(SC)

In The Supreme Court of Nigeria

On Friday, the 1st day of June, 2018

SC.999/2015

RATIO

ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

In criminal proceedings, the burden of proof is always on the prosecution, which is duty bound to establish the guilt of the accused beyond reasonable doubt. The prosecution can only achieve this result, by ascertaining that all the ingredients of the offence with which the accused was charged, have been duly proved beyond reasonable doubt. See Section 139 of the Evidence Act 2011 as amended. See also Yongo & Anor v COP (1992) NWLR (pt 257) 36 or (1992) 4 SCNJ 113. This is borne out from the fact that under our criminal system or even under our Constitution, an accused person is always presumed innocent until he is proved guilty. An accused person therefore has no burden placed on him by law, to prove his innocence in a Court of law. See Uche Williams vs The State (1992) 10 SCNJ 74 or (1992) NWLR (pt. 261) 515. The means or method which the prosecution may employ or adopt in proving the guilt of an accused could be in any one or all of the under listed methods, namely; (a) By account of eye witness or witnesses who witnessed the commission of the offence. (b) By circumstantial evidence unequivocally pointing at the guilt of the accused person. (c) Through voluntary confessional statement of the accused, admitting the commission of the offence charged. See Emeka v The State (2001) 14 NWLR (Pt 734) 666 at 683. PER AMIRU SANUSI, J.S.C.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY, CONTRARY TO SECTION 1 (1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP 389 LAWS OF THE FEDERATION OF NIGERIA 1990

In this instant case, the appellant was charged and tried for the commission of the offence of armed robbery, contrary to Section 1 (1) of the Robbery and Firearms (Special Provisions) Act, Cap 389 Laws of the Federation of Nigeria 1990. In order to establish the offence of armed robbery under the above mentioned provisions, the prosecution must prove the following ingredients of that offence which include the followings:- (i) That there was robbery or series of robbery. (ii) That the accused participated in the robbery. (iii) That at time of the robbery the accuse was armed with offensive weapon or was in company of someone who was so armed. See the case of Bozin v The State (1985) 2 NWLR (pt. 8) 465; Alabi v The State (1993) 7 NWLR (pt 307) 511 at 523, Bello v The State (2007) 10 NWLR (pt 1043) 564 Chukwuka Ogudo v The State (2011) LPELR 860 (SC). To obtain conviction, the prosecution must prove all the ingredients listed above, beyond reasonable doubt. PER AMIRU SANUSI, J.S.C.

MEANING OF THE TERM “OFFENSIVE WEAPON”

Offensive weapon means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger or any piece of wood, metal glass or stone capable of being used as an offensive weapon. See Section 15 of Robbery and Firearms (Special Provisions) Act. PER AMIRU SANUSI, J.S.C.

WHETHER THE PROSECUTION MUST TENDER THE WEAPONS USED IN THE ROBBERY OPERATION IN SECURING A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY

The law is trite that in order to secure a conviction for the offence of armed robbery, the prosecution is only duty bound to prove; (a) That there was an armed robbery. (b) That the accused was armed in company with any person so armed; and (c) that the accused while with arm or arms or in company with person so armed, participated in the robbery. Once the prosecution proves the aforementioned elements of the offence of armed robbery beyond reasonable doubt, its failure to tender the arms or offensive weapon can not lead to his acquittal because of the possibility of the accused person doing away with the arms or weapon after the commission of the crime in order to exculpate himself from detection or arrest. See Olayinka v State (2007) 9 NWLR (Pt. 1040) 561; Okosi vs AG Bendel State (1989) 1 NWLR (pt. 100) 642. I must emphasise here that there is no principle of law that insists that the prosecution must tender weapons used in the alleged robbery in order to prove the guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case, for instance, where the prosecution stated that any weapon used in the robbery was recovered. See Olayinka’s case (supra). This therefore knocks the bottom of the fact relied upon by the Court below, that PW3 did not tender any empty shell or gun at the prosecution of the case. See also Abiodun vs The State (2013) All FWLR (pt. 700) 1257 at 1269 Para E. PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

THE STATE Appellant(s)

AND

MICHAEL OMO FADEZI Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the Judgment of Kaduna division of the Court of Appeal (“the lower Court” for short) (Coram I. O Akeju, Habeeb A. O Abiru and Oludekun A. Adefope. JCA) delivered on 18th of September, 2015 which substituted the death sentence passed by the High Court of Justice Kaduna State (the trial Court) on the respondent with 21 years Imprisonment

The respondent herein, was arraigned before the trial Court on an allegation of armed robbery along with three other co-accused, out of which two were at large hence they did not stand the trial. The respondent and one other who were alleged to have worn police uniform and armed themselves with guns broke into the house of Victor Omuruan and Clara Omuruan and robbed them of their personal belongings and a sum of N32,000 on 14th October, 2001.

On their arrest, the respondent was charged with the offence of armed robbery, contrary to Section 1 (1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria of 1990. At the trial Court, the respondent pleaded not guilty to the sole count.

The trial thereupon proceeded in earnest. In an effort to prove its case, the appellant called four witnesses to testify in its case, the first two of whom were Clara Omuruan and Victor Omuruan, the victims who testified at the trial as PW1 and PW2 respectively. The third witness was the IPO who investigated the case and also recorded the confessional statement of the respondent which was later tendered and admitted as exhibit at the trial without any objection by the defence. The fourth and last witness was a member of the Vigilante group who arrested the respondent. On the conclusion of the case for the prosecution, now appellant, the respondent/accused testified on his own behalf as DW2 but did not call any witness.

After the learned counsel for the parties delivered their addresses, the trial Court adjourned for Judgment. In the Judgment delivered by the trial Court, the respondent was found guilty as charged and was convicted and sentenced to death by hanging.

The respondent became disenchanted by his conviction and sentence by the trial Court hence the appeal to the Court of Appeal (the lower Court or Court below) which in

its Judgment delivered on 18th September, 2015 allowed the appeal by the respondent in part, in that it set aside the conviction and sentence of death by hanging passed on him and substituted the conviction of armed robbery with that of simple robbery and reduced or commuted the death sentence to that of 21years imprisonment to take effect from 4th August, 2005 being the date of his conviction by the trial Court.

Miffed by the Judgment of the lower Court, the appellant has now appealed to this Court. In keeping with the procedure obtained in this Court, parties to this appeal filed and exchanged briefs of argument. The appellant’s brief of argument settled by Hassan EI- Yakub was filed on 29/3/2015 which was deemed filed on 8th March, 2016. on his part, the respondent filed his brief on 19/10/2015, settled by one Olukayode Adebowola which was also deemed filed on 8th March 2016.

In the appellant’s brief of argument, a lone issue was decoded from the Notice and grounds of appeal which simply reads as follows:-
whether from the totality of the evidence in this case, the appellant did not prove beyond reasonable doubt the

charge of armed robbery contrary to Section 1 (2)(a) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of Federation of Nigeria 1990 against the Respondent but only proved robbery such as to Justify the decision of the Court of appeal in setting aside the conviction and sentence of the trial Court and substituting same with a conviction for robbery and sentence of 21 years imprisonment (Grounds, 2 & (Grounds, 2 &).”

Similarly, the respondent herein, in his brief of argument also raised a lone issue for the determination of this appeal which is less verbose compared to the one raised by the appellant which simply reads thus:-
Whether the Court of Appeal rightly held that the prosecution failed to prove the charge of armed robbery beyond reasonable doubt and convicted the respondent of a lessor offence of robbery

SUBMISSIONS OF LEARNED COUNSEL OF THE APPELLANT ON THE SOLE ISSUE FOR DETERMINATION RAISED
The issue deals with whether from the totality of the evidence in this case, the appellant did not prove the charge of armed robbery. It was submitted that where the prosecution established all the essential ingredients of

the offence charged, it has proved the offence beyond reasonable doubt.

He submitted that the essential ingredients of the offence of armed robbery include the followings:-
(1) that there was robbery
(2) that the accused was one of those who took part in the armed robbery
(3) that at the time of committing the robbery, the accused was armed with firearm(s) or offensive weapon or was in the company of any person who was so armed.

He submitted that all the above mentioned ingredients must be proved by the prosecution before it can secure conviction. He argued that the evidence of PW1 & PW2 show that the 1st accused person (Toyin Cray) and the 3rd accused or the 4th accused person (now respondent), were armed with guns and that they were in company of the respondent. He argued further, that this evidence was nether challenged nor controverted. He submitted that it is immaterial whether or not there was any shooting at the time of the robbery but that since the two of the accused persons were armed, it is enough to ground a conviction for armed robbery.

He submitted that for their during the robbery that it is immaterial or that one of the guns used was said to be a mere toy gun mere so when the police recovered a locally made pistol and a toy gun used during the robbery. He referred to the case of NIGERIA ARMY V YAKUBU (2003) Vol. 2-3 NJSC (pt iv) pg 15 para e-f . He referred to the evidence of PW1 under cross-examination at page 8 of the record and that of PW2 at pages 8-9 of the record and argued that these same evidence were unchallenged, it ought to have been accepted by it. He contended that the reason given by the Court below for substituting the respondent’s conviction by the trial Court for armed robbery with that of simple robbery, is not tenable. He argued that it is immaterial as to who was holding the gun or even whether or not there was shooting on the day in question. He submitted that contradiction which will be fatal must be material and substantial. He argued that conflict as to who was holding a gun among the accused persons or whether there was shooting are mere discrepancies and not contradiction that can affect the evidence of PW1 and PW2 and that the fact still remains that two out of four the accused persons were armed with guns at the time of the robbery incident.

He submitted that the fact that empty shells of bullets or bullet marks were not seen cannot exonerate the accused person even if the guns used for the offence were not tendered before the Court. He referred to the case of FATAI OLAYINKA v THE STATE (2007) ALL FWLR (Pt. 373) 163 30. He submitted that the decision of the Court below was not based on proper evaluation of evidence before it. He urged the Court to resolve the issue in favour of the appellant and allow the appeal.

As I posited above, in response to the argument of the learned counsel to the appellant, the learned counsel to the respondent also distilled one issue for determination of the appeal.

SUBMISSION BY RESPONDENT’S COUNSEL
The issue deals with whether the Court below rightly held that the prosecution failed to prove the charge of armed robbery beyond reasonable doubt and convicted the respondent of a lesser offence of robbery.

The learned counsel for the respondent submitted that before a robbery can be said to have taken place physically identifiable items must have been stolen. He argued that the PW1 & PW2 who claimed to be victims gave a different

account of who attacked them as well as the amount stolen from them if indeed they have robbed. He also argued that the cloths and other properties said to have been stolen, recovered and taken to the police station were not tendered in evidence. He argued that the PW2 sought to place the respondent at the scene of the alleged robbery as a result of misunderstanding between them, having testified that he had known the Respondent for seven years and had done some business with him and that he is unhappy with the respondent in recovery of his unpaid share of business transaction.

On question of arms, he argued that the toy gun recovered and tendered does not meet the description of firearms or offensive weapon as defined by the Act. He referred to Section 15 (1) of the Robbery and Firearm (Special Provision) Act, which defines “firearm” and “offensive weapon.” He argued that of all the exhibits tendered by the prosecution, none of them in any way suggested that the respondent was at the scene of the alleged crime or was armed or in company of any armed accused person.

He argued that the evidence of PW1 and PW2 on one hand when put side by side with that of PW3, showed a contradiction. He contended that the evidence of PW1 & PW2 alleged that the respondent was carrying a gun while PW3 found a toy gun. He submitted that where there is such conflict in the evidence of the prosecution witnesses on an issue which is fundamental, the Court has a duty to see the contradiction as a doubt. He cited the case of IBRAHIM V THE STATE (1991) 4 NWLR (pt. 186) 38. He then urged this Court to resolve the issue in favour of the respondent and dismiss the appeal.

An accused person therefore has no burden placed on him by law, to prove his innocence in a Court of law. See Uche Williams vs The State (1992) 10 SCNJ 74 or (1992) NWLR (pt. 261) 515.
The means or method which the prosecution may employ or adopt in proving the guilt of an accused could be in any one or all of the under listed methods, namely;
(a) By account of eye witness or witnesses who witnessed the commission of the offence.
(b) By circumstantial evidence unequivocally pointing at the guilt of the accused person.
(c) Through voluntary confessional statement of the accused, admitting the commission of the offence charged.
See Emeka v The State (2001) 14 NWLR (Pt 734) 666 at 683.

<br< p=””
</br<

(i) That there was robbery or series of robbery.
(ii) That the accused participated in the robbery.
(iii) That at time of the robbery the accuse was armed with offensive weapon or was in company of someone who was so armed.
See the case of Bozin v The State (1985) 2 NWLR (pt. 8) 465; Alabi v The State (1993) 7 NWLR (pt 307) 511 at 523, Bello v The State (2007) 10 NWLR (pt 1043) 564 Chukwuka Ogudo v The State (2011) LPELR 860 (SC). To obtain conviction, the prosecution must prove all the ingredients listed above, beyond reasonable doubt.

On the first ingredient of the offence listed supra, there is adequate evidence led by the prosecution that a robbery took place. The appellant, as prosecutor led evidence about the existence of robbery through PW1 and PW2 who were the victims of the robbery attack on them by the respondent along with his other three co-accused persons who robbed them on the day of the incidence. Their testimonies were neither challenged nor controverted in any respect.

With regard to the second element of the offence which has to do with the participation of the respondent in the robbery, both PW1 and PW2 testified an how on 7th October 2001 at about 2.00am the four

accused persons who included the respondent herein, broke opened their door holding a gun and a torchlight wearing police uniform and started beating them and kicking them and that her husband PW1, gave them N2,000 and they stole their clothes. The identity of the robbers was not in doubt at all. For instance, under cross examination, PW1 stated thus:-
I know them and they come to rob us. The properties they took are with the Police. There are Danjuma and Chuk. I saw months mike has no gun. 1st and 3rd Accused held guns, 1st accused did not shoot at all. Danjuma shoot gun”

Again in her testimony at the trial Court, PW2 stated at pages 8-9 of the record as follows:-
“7/10/2001 we were sleeping together with my wife around 2 am, the accused came and broke our door and they entered our room. The 1st accused entered and was holding gun and touch light and then person 2nd Accused entered inside my room 3rd and 4th accused were outside and were shooting and saying person who come out they will shoot. 1st accused was beating me with the torch light. They started beating my wife who was 3 months pregnant. I refused they will shoot us.

I gave the sum of N32,000k to the 1st accused by myself. He gave it to the 2nd Accused. They started parking my loads box full of cloth rechargeable lamp and Panasonic tape.”

Again under cross-examination, PW2 stated “the 1st Accused and 3rd Accused were carrying gun”
See page 10 of the Record. It is noteworthy that these foregoing pieces of evidence were not challenged contradicted or controverted at all at the proceedings. All the foregoing pieces of evidence from the only two eye witnesses had established both the identity of the respondent as well as the third ingredient of the offence of armed robbery that at the time of the robbery operation one or some of the robbers was or were armed with offensive weapon and there is even evidence that one of them shot his gun during the robbery operation. Offensive weapon means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger or any piece of wood, metal glass or stone capable of being used as an offensive weapon.

See Section 15 of Robbery and Firearms (Special Provisions) Act.

In this instant case, there is the evidence of the prosecution witnesses that the 1st Accused and the 3rd accused carried guns, and that one of them shot the gun. These witnesses are direct victims of crime who testified on the use of the guns. Slightest use of the offensive weapon makes the respondent culpable. The offence of robbery with firearms is complete or committed once at the time of the commission of the offence of robbery the accused carried arms one or any of them is said to be carrying firearms as an offensive weapon or is armed. See DPP vs Hyude (1989) 1 All E R 649. In this instant case, evidence abounds that the 1st Accused and the 3rd Accused (now at large) were carrying guns and that such guns were even shot during the robbery operation.

The Court below in its Judgment made the following finding at page 135 of the record:-
“PW2 however says that 3rd and 4th accused carried guns and were the ones any one, was shooting”

The lower Court also went further to find as follows on the same page 735 of the record:-

“In view of the conflict in the evidence of PW1 and PW2 as to who held a gun and who was shooting and also evidence of PW3 that no empty shells was found or bullet marks. I must resolve the contradiction of whether there was shooting or the day in question in favour of the appellant. Having so held the proven offence committed on the day in question was not armed robbery but robbery.”

The lower Court went further to conclude and found the respondent guilty of simple robbery and set aside the conviction and sentence of the respondent of the offence of armed robbery and it substituted the death sentence passed on respondent by the trial Court, to 21 years imprisonment.

With greatest respect to the eminent and learned Justices of the Court of appeal, the alleged conflict it hinged its reasoning on to set aside the conviction and sentence of the respondent was not material at all. The issue of who shot amongst the robbers is not material. The essential ingredient of the offence of armed robbery under Section 1 (2) of the Robbery and Firearms (Special Provision) Act is simply that at the time of the robbery assault the accused or any was carrying arms or in company of any person carrying such arms or any offensive weapons.

Whether such arms was used on the victim or not, is also not material at all provided offensive weapon was proved to have been held by any of accused person at the material time. Whether there was shooting or not or whether the respondent carried it or triggered the shot or even if it was not shot at all is immaterial. The important thing is that the holding of such arms did or would obviously cause violence or fear of injury on the victim against him or his property and for that reason he (the victim) surrendered such property for fearing that he will be injured.
The law is trite that in order to secure a conviction for the offence of armed robbery, the prosecution is only duty bound to prove;
(a) That there was an armed robbery.
(b) That the accused was armed in company with any person so armed; and
(c) that the accused while with arm or arms or in company with person so armed, participated in the robbery.
Once the prosecution proves the aforementioned elements of the offence of armed robbery beyond reasonable doubt, its failure to tender the arms or offensive weapon can not lead to his acquittal because of

the possibility of the accused person doing away with the arms or weapon after the commission of the crime in order to exculpate himself from detection or arrest. See Olayinka v State (2007) 9 NWLR (Pt. 1040) 561; Okosi vs AG Bendel State (1989) 1 NWLR (pt. 100) 642.
I must emphasise here that there is no principle of law that insists that the prosecution must tender weapons used in the alleged robbery in order to prove the guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case, for instance, where the prosecution stated that any weapon used in the robbery was recovered. See Olayinka’s case (supra). This therefore knocks the bottom of the fact relied upon by the Court below, that PW3 did not tender any empty shell or gun at the prosecution of the case. See also Abiodun vs The State (2013) All FWLR (pt. 700) 1257 at 1269 Para E.

In the instant case adequate evidence abound that the respondent herein did commit armed robbery as rightly found by the learned trial Judge. The reasons given by the Court below for refusing to affirm the trial Court’s decision is not cogent and is untenable because what the

respondent committed is pure armed robbery and NOT simple robbery.

The alleged conflict or contradictions (if any) at all are not material contradiction. The appellant had led uncontroverted and challenged and cogent evidence of eye witnesses who are direct victim of the offence of the actual commission of the offence of armed robbery against them and they have duly identified the respondent and above all confirmed that while undertaking the robbery attack on them, the respondent was armed or was in company of his partners in crime who were so armed. If the lower Court had applied a bit of more diligence in its evaluation of the evidence adduced before the trial Court, they could no how arrive at its conclusion that there was no arms carried by the present armed robbers as could justify it to reduce the guilt of the respondent to that of simple robbery. I therefore resolve the sole issue against the respondent and in favour of the appellant.

On the whole, I find this appeal to be meritorious. It is accordingly allowed by me. I set aside the conviction and sentence made by the Court below on the respondent.

In its stead, I restore the Judgment, conviction and sentence passed on the respondent by the trial High Court which is of armed robbery.

The conviction and sentence of the respondent herein of death by the trial Court is hereby affirmed and restored. For avoidance of doubt, the respondent remains convicted of armed robbery and is accordingly sentenced to death by hanging as adjudged by the trial Court. Appeal is allowed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had a preview of the leading judgment of my learned brother, Sanusi JSC and I agree with the reasons he gave for restoring the judgment of the High Court and setting, aside the judgment of the Court of Appeal.
Appeal is allowed

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother Amiru Sanusi JSC and to underscore my support for the reasonings for the decision, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Kaduna Division or Court below or lower Court, delivered on the 18th day of September, 2015 wherein the respondent’s conviction and sentence to

death by the trial Court for the offence of armed robbery was substituted with Robbery simplicita and sentence of 21 years imprisonment.

The background facts leading to this appeal are properly set out in the leading judgment and I shall not repeat them except for when the occasion warrants a reference to any part thereof.

On the 8th day of March, 2018 date of hearing, learned counsel for the appellant, Hassan U. El-Yakubu Esq., adopted its brief of argument filed on the 29th March, 2016 and deemed filed on 8th March, 2018. It is thus:-
”Whether from the totality of evidence in this case, the appellant did not prove beyond reasonable doubt the charge of Armed Robbery contrary to Section 1(2) (a) (b) of the Robbery and Fire Arms (Special Provision) Act Cap 389 Law of Federation of Nigeria 1990 against the respondent but only proved Robbery such as to justify the decision of the Court of Appeal in setting aside the conviction for robbery and a sentence of 21 years distilled a single issue for determination imprisonment.” (Grounds 1, 2 & 3).

Sir Olukayode Adeluola for the respondent adopted his brief of argument filed on 19th October, 2016 and deemed filed on 8th March, 2018. He formulated a sole issue for determination, viz:-
Whether the Court of Appeal rightly held that prosecution failed to prove the charge of armed robbery beyond reasonable doubt and convicted the respondent of a lesser offence of robbery.

The issue as drafted by the respondent simply is apt for the determination of this appeal and I shall use it.

SOLE ISSUE
This asks the question whether the Court of Appeal was right to hold that the prosecution failed to prove the charge of armed robbery beyond reasonable doubt and convicted the respondent of a lesser offence of robbery.

Learned counsel for the appellant stated that in any criminal proceeding, the prosecution is duty bound to prove its case beyond reasonable doubt and this burden does not shift throughout the proceeding until the duty is fully discharged. That the prosecution fulfilled this duty in this case. He cited Okoh v State (2014) ALL FWLR (Pt.711) 1457 at 1490; Olatinwo v State (2013) ALL FWLR (Pt. 585) 312 at 333; Jimmy v State (2014) ALL FWLR (Pt. 714) 103 at 121; Attah v The State (2010) ALL FWLR (Pt. 540) 1224 at 1256 etc.

That it is certain that two of the accused persons were armed with a gun at the time of the robbery and it is immaterial whether there was any shooting at the time of the robbery. That the fact that two of the accused persons were armed and the PW1 and PW2 were robbed with violence is enough to ground a conviction for armed robbery under Section 1(2)(a) (b) of the Robbery and Firearms(Special Provisions) Act. He stated that the solid evidence being unchallenged and uncontroverted evidence of a witness stands and the Court should accept same and act on it. He cited Nigeria Army v Yakubu (2003) 2-3 MJSC (Pt.iv) 1 at 15; Iregbu v The State (2013) 12 NWLR (Pt.1367) 92.

Learned counsel for the appellant contended that the contradictions that may be pointed at are minor or trivial and would not affect the credibility of a witness and so not fatal and cannot vitiate the trial. He cited Osetola v The State (2012) 17 NWLR (Pt.1329) 251; Mohammed v State (2014) ALL FWLR (Pt.747) 663 at 674; Egwumi v State (2013) ALL FWLR (Pt. 678) 824 at 846.

That the empty shells of the bullet or bullet marks were not seen cannot exonerate the accused persons

even if the gun which was used for the offence was not tendered before the Court. That the prosecution can secure the conviction of an accused person provided there is cogent eyewitness evidence. He referred to Fatai Olayinka v The State (2007) ALL FWLR (Pt. 373) 163; Abiodun v The State (2013) ALL FWLR (Pt. 700) 1257 at 1269; Babarinde v State (2014) ALL FWLR (Pt. 717) 606 at 632; Alor v State (1996) 4 NWLR (Pt. 445) 762; Dibie v State (2004) 14 NWLR (Pt. 893) 257.

For appellant, it was concluded that the Court of Appeal’s decision was not based on proper evaluation of evidence before it and the Court below wrongly set aside the conviction and sentence of the respondent by the trial Court and in its place convicted and sentenced him to 21 years imprisonment for robbery.

In response, learned counsel for the respondent contended that the prosecution failed to prove the essential ingredients of the offence of armed robbery beyond reasonable doubt. He cited Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation 1990; Olayinka v State (2007) 9 NWLR (Pt. 1040) 582; Bozin v State (1985) 1 NWLR (Pt. 8) 465;

Section 15(1) of the Robbery and Firearms (Special Provisions) Act 1990; Nwachukwu v The State (1986) 2 NWLR (Pt. 25) 765.

That the testimonies of PW1 and PW2 left gaps that would create doubt in the mind of the Court which should be resolved in favour of the appellant. He referred to Sunday Udosen v The State SC.199/2005; Ibrahim v State (1991) 4 NWLR (Pt.186).

The respondent was charged for the offence of armed robbery contrary to Section 1(2)(a) (b) of the Robbery and Firearms (Special Provisions) Act Cap 389 Laws of the Federation of Nigeria 1990 which section of the law is defined thus:-
“(2) If
(a) any offender mentioned in Subsection (1) 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 immediately after the time of the robbery the said offender wounds or uses any personal violence to any Person.
See Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 368-369 paras G-A, per Muntaka Coomassie JSC.
The testimonies of the PW1 and PW2 would have their excerpts relayed hereunder, viz:-
PW1: On 7th October, 2001 at about 2:00am the

1st to 4th accused came. The 1st accused opened and broke my door and he was holding a gun and a torch light. He asked my husband to give him the money he wanted to buy a car. The 1st accused and the rest were all wearing police uniform. They started beating us and I was carrying 3 months pregnancy. The accused said if my husband refused to give him money he will shoot us. He was kicking me, my husband gave him N2,000.00k and the 1st accused gave it to the 3rd accused. He carried my box full of clothes out, also rechargeable, tape recorder…
The accused came in Danjuma was shooting inside the yard. See pages 6-7 of the Records of Appeal).

Under cross-examination PW1 also reiterated on the use of guns during the robbery incident when she said that:
“I know them and they came to rob us. The properties they took are with the police. There are Danjuma and Chucks. I saw Mike has no gun. 1st and 3rd accused held gun. 1st accused did not shoot at all. Danjuma shot gun”. See page 8 of the Record of Appeal). PW2 also stated in his testimony at the trial Court thus:-

“7th October, 2001 we were sleeping together with my wife around 2, the accused came and broke our door and they entered our room. The accused entered and was holding gun and torch light, another person, 2nd accused entered inside my room, 2 people, 3rd and 4th accused were outside and were shooting and saying any person who come out they will shoot. 1st accused was beating me with torch light. They started beating my wife who was 3 months pregnant. I refused they will shoot us. I gave the sum of N32,000.00k to the 1st accused by myself. He gave it to the 2nd accused. They started parking my loads, box full of cloth, rechargeable lamp and Panasonic tape.”
Under cross-examination PW2 stated as follows;-
“The 1st accused and 3rd accused were carrying gun.”

Those pieces of evidence of PW1 and PW2 were not challenged or controverted by the respondent and so it became strange for the Court of Appeal to hold as follows:-
“PW2 however says that 3rd and 4th accused carried guns and were the ones shooting. There thus appears to be conflict on who, if indeed anyone, was shooting.”(See page 135 of the Record).
The Court of Appeal went further to hold that:

“In view of the conflict in the evidence of PW1 and PW2 as to who held a gun and who was shooting and also the evidence of PW3 that no empty shells were found or bullets marks, I must resolve the contradiction of whether there was shooting on the day in question, in favour of the appellant. Having so held, the proven offence committed on the day in question, I hold was not armed robbery but robbery.”

It is salient that the two accused persons each carried a gun at the time of the violent robbery incident even though it is not material who of the participating robbers had a gun so long as they were together acting in concert. I place reliance on Iregbu v The State (2013) 12 NWLR (Pt. 1367) 92; Jimmy v The State (2013) 18 NWLR (Pt. 1386) 229.

Again to be said is that it is of no moment that the empty shells of bullet or bullet marks were not seen. Also that even if the gun used for the offence was not tendered before the trial Court would not exonerate the accused persons in the light of the cogent eyewitness evidence adduced. See Fatai Olayinka v The State (2007) ALL FWLR (Pt. 373) 163; Abiodun v The State (2013) ALL FWLR (Pt. 700) 1257 at 1269; Babarinde v State (2014) ALL FWLR (Pt. 717) 600 at 632; Alor v State (1996) 4 NWLR (Pt. 445) 762; Dibie v State (2004) 14 NWLR (Pt.893) 257.

It is now trite that in any criminal proceedings such as the present, the prosecution is duty bound to prove its case beyond reasonable doubt and this burden does not shift through the proceedings until the duty is fully discharged. This bounden duty of proof beyond reasonable doubt does not mean proof to the hilt or proof beyond all iota of doubt. Therefore once the prosecution has established all the essential ingredients of the offence that an accused is charged with, it has carried out the duty required.

In this journey to prove the essential elements of the offence of armed robbery the prosecution is expected to establish the following:-
a) That there was a robbery or a series of robberies.
b) That the accused was one of those who took part in the armed robbery.
c) That at the time of committing the robbery, the accused was armed with firearm or an offensive weapon or was in the company of any person who was so armed.
See Section 139 of Evidence Act, 2011 (as amended); Okoh v State (2014) ALL FWLR (Pt. 736) 443; Ajayi v State

(2014) ALL FWLR (Pt. 711) 1457 at 1490; Olatinwo v State (2013) ALL FWLR (Pt. 685) 312 at 333; Anekwe v State (2014) ALL FWLR (Pt. 744) 92 at 106; Adeleke v State (2014) ALL FWLR (Pt. 722) 1652 at 1673; Attah v State (2010) ALL FWLR (Pt. 540) 1224 at 1256; Afolalu v The State (2010) ALL FWLR (Pt. 538) 812 at 832: Daro Pale v State (2013) ALL FWLR (Pt. 696) 605 at 616.

It is to be stated that the learned trial judge properly evaluated the evidence before him including the unchallenged and uncontroverted evidence of PW1 and PW2 showing that respondent in the company of his co-accused persons, 1st and 3rd who at the material time of the robbery incident were armed with guns and so the three components of the essential ingredients of the offence of armed robbery were made out beyond reasonable doubt. The situation therefore became strange as to know upon what the Court of Appeal based its evaluation of the evidence to set aside the conviction and sentence of the respondent by the trial Court and replacing it with a conviction and sentence of 21years imprisonment for ordinary robbery contrary to what was before the Court.

Indeed this appeal is meritorious and in line with the well reasoned leading judgment. I too allow the appeal.
I abide by the consequential orders made.

JOHN INYANG OKORO, J.S.C.: I read in draft the lead judgment of my learned brother, Amiru Sanusi, JSC just delivered. I agree with His Lordship that there is merit in this appeal which deserves to be allowed.

In this case, the learned trial judge convicted and sentenced the appellant to death for armed robbery. However, the Court below set aside that conviction and reduced the punishment to 21 years imprisonment on the ground that there was conflict as to who actually held and/or shot the gun. There is no law which says that the prosecution must tender the arms or offensive weapon used in an armed robbery before the offence can be proved beyond reasonable doubt. Where there is cogent and reliable evidence that the accused person took part in the armed robbery, the trial judge is duty bound to rely on it even if the accused did not personally carry any weapon as his co-accused persons.
In Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561 at 514, this Court held that there is no principle of law

requiring the tendering of the weapons of an alleged robbery to establish guilt of an accused person. I agree that the Court below was wrong to set aside the conviction and sentence of the appellant to death by the trial Court.

It is on this note that I also allow this appeal and set aside the judgment of the Court of Appeal. I accordingly restore the judgment of the trial Court.
Appeal allowed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal has merit, and it is accordingly allowed by me. Judgment of the trial Court is hereby restored.

Appearances:

HASSN U. EL-YAKUB For Appellant(s)

OLUKAYODE ADELUOLA For Respondent(s)

Appearances

HASSN U. EL-YAKUB For Appellant

AND

OLUKAYODE ADELUOLA For Respondent