MBERI
V.
THE STATE
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 15TH DAY OF JANUARY, 2016
CA/OW/351M/2012
LN-e-LR/2016/35 (SC)
OTHER CITATIONS
(2016) LPELR-40075(CA)
BEFORE THEIR LORDSHIPS
IGNATIUS IGWE AGUBE, J.C.A
ITA GEORGE MBABA J.C.A
FREDERICK O. OHO J.C.A
BETWEEN
ONYEKA MBERI Appellant(s)
AND
THE STATE Respondent(s)
REPRESENTATION
Chimezie Victor C. Ihekweazu Esq. For Appellant
AND
Mrs. Christiana Izuagwu-Chief State Counsel, Ministry of Justice, Owerri. For Respondent
[EDITORS:
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
MAIN JUDGMENT
FREDERICK O. OHO, J.C.A.: (Delivering the Leading Judgment):
Before the High Court of Justice, Imo State of Nigeria in the Orlu Judicial Division, Holden at Urualla ONYEKA MBERI along with one (1) other person was charged on a single Count information with the offence of Armed Robbery, contrary to Section 402(2) (a) of the Criminal Code Act Cap. 77 Laws of the Federation of Nigeria 1990 as Applicable in Imo State. In the particulars of offence the Appellant in company of one other person were said to have committed the offence of Armed Robbery on the 23rd day of June, 2008 at AKOKWA in Ideato North Local Government Area of Imo State while armed with a gun and other dangerous weapons, when they robbed Alibaz Industries Limited of two pieces of armored cable wire valued at Six Hundred and Fifty-Thousand (N650,000.00) Naira and one Armature valued at Thirty-Thousand (N30,000.00) Naira. The accused persons at the lower Court pleaded not guilty and the Prosecution called four (4) witnesses and tendered 22 Exhibits which were admitted and marked as Exhibits A, B1-B10, C, D, E, F, G, H, I, J, K and M. The Appellant testified for himself and called no witnesses in the course of his defense before the Court.
At the conclusion of trial, the learned trial Judge in a considered Judgment on the 30-3-2012 found the Appellant guilty as charged and sentenced him to 25 years imprisonment with hard labour. It is against this conviction and sentence that the Appellant has appealed to this Court vide his Notice of Appeal dated the 27-3-2013 and filed on the 2-4-2013. In all, eight (8) Grounds of Appeal were filed and from which learned Appellant'??s Counsel distilled four (4) issues for the Courts determination. These grounds are as follows:
GROUND ONE:
The learned trial judge misdirected himself in law when he held inter alia that; the evidence of the prosecution witness are acceptable, reliable and compelling, I cannot find the contradiction in the prosecution witnesses evidence that is material or substantial that will make me not believe it.
GROUND TWO:
The trial Court erred in law when it relied on the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) 427 AT 467 to hold that the evidence of the Appellant was conflicting and contradictory with their extra judicial statements and as such unbelievable and unacceptable and thereby occasioned a miscarriage of justice against the Appellant.
GROUND THREE:
The Court erred in law when it held that the Appellant did not raise the issue of alibi properly and that the defense of alibi was not available to the Appellant since he failed to raise it at the earliest time and that the prosecution has led credible evidence to dislodge the defense.
GROUND FOUR:
The learned trial Judge erred in law when he held that; from the totality of the evidence led by the prosecution, I have no doubt in my mind that the evidence led to prove this case are qualitative, compelling, cogent and convincing to enable this Court take a conclusive decision in this case? and thereby occasioned a miscarriage of justice against the Appellant.
GROUND FIVE:
The trial Court misdirected itself on the fact when he held that; from the evidence before me, I found as a fact that the accused persons knew themselves and conspired to carry out their mission which they executed when they entered into ALIBAZ Industries. I also believe the prosecution witnesses that they were arrested inside the factory and not along Akokwa Road as claimed by DW1?ý
GROUND SIX:
The learned trial Judge erred in law when he held that it is a fact that the statements of the accused persons, including the Appellant were not made under duress or torture and it is inconsistent and contradictory to their evidence on oath and thereby occasioned a miscarriage of justice against the Appellant.
GROUND SEVEN:
The learned trial Judge erred in law when he held that the evidence of the PW1 and PW2 supersede the defense of alibi raised by the accused Appellant in his evidence on oath when the prosecution never investigated the defense of alibi as raised by the Appellant.
GROUND EIGHT:
The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.
ISSUES FOR DETERMINATION
Learned Appellant's Counsel as stated earlier distilled a total of Four (4) issues for the Court's consideration as follows:
1. Whether the trial Court was right when he held that the evidence of the prosecution witnesses were acceptable, compelling and uncontradictory and proceeded on the basis of that holding to convict the Appellant and whether such holding occasioned a miscarriage of justice on the Appellant and if so whether the conviction and sentence of the Appellant ought to be set aside and quashed.
2. Whether in view of the position of the law the trial Court was right when he applied the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) 427 to hold that the evidence on oath of the extra judicial statement of the Appellant were contradictory and ought to be disbelieved and whether such application occasioned a miscarriage of justice on the Appellant and ought to be set aside.
3. Whether the defense of alibi avails the Appellant and whether the trial Court was right when it held that the Appellant did not properly raise the defense of alibi and went ahead to believe the evidence of PW1 and PW2 over and above the evidence of the Appellant.
4. Whether in view of the facts of the case, the evidence before the Court and the balanced position of the law, the trial Court was right when it held that the statement of the Appellant was not made under duress or torture and whether such holding occasioned a miscarriage of justice on the Appellant.
The Respondent on its part curiously identified a total of six (6) issues, two (2) more than the Appellant for the Courts determination. These are reproduced as follows:
(1) Whether the lower Court properly reviewed and considered the available evidence before holding that the evidence of the prosecution witnesses were qualitative, acceptable, cogent and convincing and for which the Appellant was convicted.
(2) Whether inconsistencies and contradictions abound in the evidence on oath given by the Appellant and his extra judicial statements to warrant the trial Court relying on the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) P. 427.
(3) Whether the defense of alibi raised on oath during the testimony of the Appellant avails him and whether the evidence of the PW1, PW2 and PW4 who testified that the Appellant was arrested at the scene of crime super-cedes the defense of alibi.
(4) Whether the Appellant, raising duress or involuntariness in the witness box after his extra judicial statement have been admitted without any objection avails him.
(5) Whether the totality of the evidence led by the Prosecution has occasioned a miscarriage of justice against the Appellant.
(6) Whether the prosecution has proved this case beyond reasonable doubt.
From the issues nominated by the parties for the determination of Court, two maladies are at once obvious. As it relates to the issues nominated by the Appellant, they are generally inelegantly drafted with several issues routinely rolled up into single issues. The consequence is that clarity and precision are lost at the instance of the voluble nature of the issues nominated on the part of the Appellant. On the part of the Respondent, not having filed a cross-Appeal and not having filed a Respondentýs notice, a total of six (6) issues are formulated, two more than the Appellant, with the result that there had been instances of repetition, clumsiness and verbosity to be readily cited. For instance, the Respondents issues one; five and six are issues which could conveniently be taken under one issue.
It is now settled law that where a Court finds that there are verbosity, and clumsiness in the issues nominated by the Appellant for determination, the Court is entitled to re-formulate or reframe the issues for purposes of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity. See the cases of AFRICAN INTERNATIONAL BANK LTD., vs. INTEGRATED DIMENSIONAL SYSTEM LTD., & ORS. (2012) 11 SCM 1 AT 24-25; UNITY BANK PLC., vs. EDWARD BOUARI (2008) 2 SCM 193 AT 240. In the case of MUSA SHA (JNR.) & ANOR vs. KWAN & 4 ORS. (2000) 8 NWLR (PT. 670) 685, the Supreme Court was of the view that: ý So long as it will not lead to injustice to the opposite side, the Appellate Court possesses the power and in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties.
In this connection this Court shall go ahead and do a re-formulation of the issues for the determination of this Court as follows:
ISSUES FOR DETERMINATION;
1. Whether the offence of armed robbery was established against the Accused/Appellant to the satisfaction of the Court.
2. What is the effect of the previous statements made by the Appellant which are inconsistent with his defense put up at the trial.
3. Whether the defense of alibi put up for the first time in the witness box avails the Accused/Appellant.
4. Whether the defense of coercion or involuntariness in the admissibility of the Accused/Appellants extra-judicial statement could avail him when same was raised after the said statement was tendered with no objection.
The need to state the brief facts of this case cannot be overestimated. The Appellant (as 1st accused person at the trial Court) was charged jointly with a second accused person, one Vincent Edeh with the offence of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990 as applicable in Imo State. The duo on the 23rd day of June, 2008 at Akokwa in Ideato North Local Government Area of Imo State, while armed with a gun and other dangerous weapons were said to have robbed Alibaz Industries Limited of two pieces of armoured cable wires valued at N650,000.00 and one Armature valued at N30,000.00.
Evidence in this case has it that the PW1, one Aloysius Azubike who is owner of Alibaz Industries Limited on the 23rd day of June, 2008 got a phone call at about 11.30 pm from one of his security men at the company premises who told him that armed robbers had invaded and were operating within the premises. The PW1ýs immediate reaction was to lodge a formal complaint with the Police, who was assigned some policemen to him. The Policemen were said to have accompanied him to the Company premises at about 5.30 am the next day and upon their arrival at the scene the Policemen fired some gun shots and ordered the armed robbers to come out of hiding or be shot at sight. According to the PW1, when the armed robbers came out of hiding, it was discovered that the wiring system of the Company premises had been vandalized and the armoured cable that came from the Engine house to the factory had been cut off while the Engine armature was disconnected and parked at a corner. Also, he said that the robbers packed the items together with others in a sack bag. The PW1 further testified that the robbers were arrested inside the Company premises and the items recovered from the scene were taken into custody by the Police.
However, the facts have a dramatic twist to it when it comes to the defense put up by the Appellant herein. He testified that on a certain day in June, 2008, at about 9 am, he was picking scraps along Akokwa axis when he was approached by a man who asked him who he was and what he was doing. He explained to the man that he was picking rubber and allied materials. As this was going on, 3 other armed men approached and joined the scene. While he was still introducing himself, the men called him a thief and that that was when the beating started. He testified that all appeals made by him to explain to them that he was not a thief fell on deaf ears as the men beat him up and took him first to the police station and then to an unknown destination. According to him, upon arrival he was forced to squat and pictures taken of him. Thereafter he said that he was taken to the police and forced to sign a statement. He said that when he refused, he was terribly tortured and that he had no choice than to sign the statement.
The second accused person before the lower Court who testified as the DW2, one Vincent Edeh testified that he was a businessman who bought from Onitsha and was transporting the goods to Okigwe when the vehicle he was travelling in broke down. He said that he alighted and was waiting for another vehicle when somebody approached him and asked him to introduce himself. According to the DW2, he obliged and explained himself but that the man did not believe him and insisted on taking him to the Police Station. While this was going on, he said that other persons approached the scene and forced him into a vehicle and took him to the police station. After some days at the police station, he said that he was forced to sign a statement and that the police subsequently took him to Alibaz and forced him to sit on the floor, forced to hold a gun and pictures were taken of him and that from there he was transferred to Owerri, State CID from where he was charged to Court.
ARGUMENT BY APPELLANTS COUNSEL:
ISSUES ONE and TWO:
1. Whether the offence of armed robbery was established against the Accused/Appellant to the satisfaction of the Court.
2. Whether there was material contradictions in the defense put up by the Accused/Appellant.
Learned Appellantýs Counsel argued his issues one and two together. He began by giving the facts of the case and contended that in a criminal case, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred Court to Section 138(1) of the Evidence Act, 2011 (as amended) and also to the cases of ONYEACHIMBA vs. STATE (1998) 8 NWLR (Pt. 563) 587 at 596; ONAFOWOKAN vs. STATE (1987) 3 NWLR (Pt. 61) 538 and OKEKE vs. STATE (1995) 4 NWLR (Pt. 392) 676 at 707, on the subject. In addition Counsel submitted that, in a criminal case the guilt of an accused person must be proved beyond reasonable doubt before a conviction can be made and that this level of proof is attained only when every ingredient which constitutes the offence has been proved. He cited the case of EDE vs. FRN (2000) 3 WRN 13; BAKARE vs. STATE (1987) 1 NWLR (Pt. 52) 579 in support.
Learned Counsel drew attention to the fact that the Appellant, at the trial Court was charged with the offence of armed robbery contrary to Section 402(2) (a) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990 but that the evidence before the trial Court fell short of the standard required to secure a conviction. Learned Counsel also drew attention to the case of ISIBOR vs. STATE (2002) 3 NWLR (Pt. 754) 250 at 278, where the Court held as follows;
"For the prosecution to succeed in proof of the offence of armed robbery there ought to be proof beyond reasonable doubt:
a. That there was a robbery or series of robberies;
b. That each of the robbery was an armed robbery; and
c. That the accused was one of those who took part in the robbery."
It was argued by Counsel that these conditions are to be construed as conjunctive not disjunctive and that where there is a failure on the part of the prosecution to establish any one of the elements, then there is a failure to prove the case beyond reasonable doubt. Counsel called in aid, the decision of ISIBOR vs. STATE (Supra) once again. He contended that in the instant case, the prosecution failed to prove, by credible evidence, any of the elements of the offence of armed robbery to warrant the trial Court entering a guilty verdict against the Appellant. More importantly, Counsel enthused, the prosecution failed to prove that the Appellant took part in any armed robbery incident. Counsel referred to Exhibit C, which he said is a locally made pistol which was purportedly recovered from the scene of robbery and that the prosecution was not able to tie the gun to the Appellant. In addition, Counsel argued that there was no evidence before the trial Court to the effect that the gun was in possession of the Appellant. It was argued by Counsel that the PW4, through whom the exhibit was tendered, was not a member of the team who arrested the Appellant, as he neither recovered the gun nor see the Appellant in possession of it. According to learned Counsel, none of the prosecution witnesses saw the Appellant in possession of Exhibit C. In the case of the PW3, Counsel said that he never claimed to have seen the Appellant with any dangerous weapon as he admittedly arrived at the scene only to take pictures after all said done.
It was further argued by Counsel that the evidence of PW2 amounts to hearsay and should not have been believed by the trial Court. In his evidence in chief, Counsel told Court that the PW2 stated as follows:
"The owner of the factory came to the entrance of the factory with a team of policemen and opened the factory with his key. At that point, the owner of the factory went inside the factory with the team of policemen. The police began to search for the armed robbers and they saw very long coiled wires where one Onyeka Mberi was hiding with his gun. The second accused hid himself under a big tarpaulin where manufactured goods like nails and iron sponge were packed."
It was the contention of Counsel that the PW2 did not state that he entered into the factory premises and that as a matter of fact he did not. Going by his evidence, Counsel stated that it was the factory owner and the policemen that entered the factory and queried how the PW2 could have known where the accused person was hiding with his gun if he did not enter into the factory premises? It was submitted by Counsel that this piece of evidence amounts to hearsay and the trial Court ought not to have believed him. Counsel further submitted that oral evidence must in all cases be direct. He cited the case of AGWULGWUL vs. AKPO (2001) 5 NWLR (Pt. 706) 280 and YAHAYA vs. OPARINDE (1997) 10 NWLR (Pt. 523) 126 in this connection. According to learned Counsel even in his evidence, he never even claimed to have seen any gun but only claimed to have heard gunshots. Under cross-examination, he stated:
"It was when the factory owner entered into the factory with the policemen that we came our ..."
Please see page 76 of the Record of Appeal.
It was further argued by Counsel that the PW1 on the other hand, never stated that he saw the Appellant with Exhibit C and that there is no evidence before Court as to where Exhibit C was recovered from. Learned Counsel submitted in this connection that from the state of evidence before the trial Court, the prosecution failed to prove that there was an armed robbery on the fateful day. According to learned Counsel, the evidence of PW3 which came close was also hearsay and ought not to have been believed by the trial Court. Against this backdrop, Counsel submitted that the prosecution failed to prove the essential elements of the offence of armed robbery and he urged this Court to so hold. Apart from all of these learned Counsel told the Court that the evidence of the prosecution was full of contradiction and inconsistencies. On the one hand, Counsel said that the PW4, who tendered the Appellants statement, in one breadth stated that:
The suspects showed us where they climbed the fence to enter the premises of the Company. We also saw the block and ladder which they used as climbing steps.
While in other breadth, Counsel said that the PW4 stated thus:
We presented all the materials before the accused persons and we asked each of them questions, they denied being in possession of the items. We questioned them why they were and what they were doing inside the Company at the hour of the night. They responded that they were running from the rain that was falling that night and to pick some (sic) was products of aluminum to be taken to their shop at Nnewi. We therefore concluded that their mission was just to steal these products and sale (sic) it at their workshop at Nnewi.
Counsel referred Court to pages 63 to 65 of the Record of Appeal in this connection. With this at the background, Counsel contended that when the evidence of the prosecution is shown to be contradictory, the law is that the accused person is entitled to take benefit of the contradiction and be set free. He added that the Court in resolving the contradiction is bound to resolve same in such a way that it will favour the accused person. Counsel cited the case of OKERE vs. STATE (2001) 2 NWLR (Pt. 629) 392. According to learned Counsel, the question which the trial Court ought to have asked itself was why the Appellant who had earlier told the police that he was hiding from the rain, then decided to make a turn around and subsequently made a confessional statement?
Learned Counsel queried what must have changed and led to the Appellant into changing his story in the long run?
Learned Counsel also picked holes with the learned Courts finding where the Court said that the Appellant led contradictory evidence before it. It was learned Counselýs arguments that the lower Court in arriving at this decision, relied on the case of ASANYA vs. STATE (1991) 3 NWLR (Pt. 180) 427 and held that the Appellants evidence on oath and his extrajudicial statement were contradictory and for that reason ought to be disbelieved. It was the submission of Counsel that the lower Court misapplied the ASANYA decision to the instant case as the facts of both cases are not identical. He said that the Appellant in the ASANYA case made contradictory statements while the statement he made to the police was confessional in nature. It was further contended by Counsel that in the instant case, the Appellants evidence in Court was not confessional as he maintained that he did not commit the offence in question. In addition, Counsel made clarifications to the effect that in the ASANYA decision, the Appellant made no efforts whatsoever to explain the contradiction in his statements made to the police and that the voluntariness or otherwise of his statements to the police was never in issue before the Court.
In the said case, Counsel said that one of the issues canvassed before the Supreme Court was whether the Court of Appeal was right to have upheld the learned trial Judgeýs finding of inconsistency between the Appellants extra judicial statements and his subsequent oral testimony on oath. The Court, Counsel said through BELGORE, JSC (as he then was) held as follows:
It is often found as a pattern, that statement of an accused person to the police before trial conflicts with what he says on oath before the trial Court. Like all evidence, where there is such a conflict or inconsistency and this goes to the root of the partys case, it is the duty of the maker to explain the contradiction or inconsistency. Failure to resolve the conflict makes such evidence unreliable, a fortiori, if such evidence touches the substance of the case. The appellant in the instant case made a voluntary statement very much at variance with his sworn testimony in Court, it is incumbent on him to explain the contradictions and as he failed to explain, his testimony remains unreliable.
It was learned Counsels submission that in the instant appeal, the Appellant, before the lower Court made conscious efforts to explain through credible evidence that the confessional statement made by him was obtained under duress and as such explained the inconsistency between his statement at the police station and his oral evidence on oath. In this connection Counsel reproduced a section of the Appellants evidence-in-Chief where he said as follows:
They took me to Owerri CID. I was there for 6 weeks, after which they brought me out and placed a paper before me to sign. I told them to read it out to me before I sign. As I refused, I was handcuffed, leg chained up to a fan hock (sic). I insisted that they should tell me what I did. I was terribly tortured. I signed the paper under duress and to avoid them kill me. I did not make any statement at Urualla Police Station."
This piece of Appellant's evidence, Counsel submitted remained un-contradicted. He also cited the case of KAREEM vs. FRN (2002) 8 NWLR (Pt. 770) 644 at 689, where he said that the Supreme Court held as follows:
"If the accused person resiles from his confessional statement, it is his function to explain to the Court as part of his evidence the reason for the inconsistency."
Learned Counsel finally on these issues, urged the Court to discharge and acquit the Appellant, the Prosecution having failed to discharge the burden of proving the guilt of the Appellant as an Accused person at the lower Court.
ISSUE THREE;
Whether the defense of alibi put up for the first time in the witness box avails the Accused/Appellant.
In arguing this issue, learned Counsel told Court that the issues arose out of Grounds 3 and 7 of the Notice of Appeal.
According to learned Counsel, the Appellant raised the defense of alibi when he said that he was not at the locus criminis when the offence was allegedly committed but that the lower Court disbelieved the defense on the ground that it was not raised at the appropriate time.
It was further argued by Counsel that it is by law, the clear duty of prosecution to investigate the defense of alibi once it is raised by an accused person as the defense of alibi simply means that he was somewhere else and not at the scene of the crime when the offence was allegedly committed. Learned Counsel contended that the onus is not on the Appellant to prove that defense but on the prosecution to disprove it as part of the duty on it to prove the charge against the accused beyond reasonable doubt.
According to Counsel, the only duty of the accused is to raise the defense promptly and properly. Counsel cited the case of BALOGUN vs. A-G OGUN STATE (2002) 6 NWLR (Pt. 763) 512. Learned Counsel also cited the case of ISIEKWE vs. STATE (1999) 9 NWLR (Pt. 617) 43 and contended that the onus is on the accused person to raise the issue of alibi at the earliest possible time to enable the prosecution investigate same. According to Counsel, the Appellant at the earliest opportunity and upon being apprehended at about 9.00 am stated that he was picking scraps along Akokwa axis road and that after his arrest, he was not told why and for what offence he was arrested. That he also disclosed that it was the police that took him to Alibaz Company premises and made him to sit on the ground while they snapped pictures of him. Counsel referred to page 66 of the printed records on this issue and urged the Court to resolve this issue in favour of the Appellant.
ISSUE FOUR;
Whether the defense of coercion or involuntariness in the admissibility of the Accused/Appellants extra-judicial statement could avail him when same was raised after the said statement was tendered with no objection.
It was the contention of learned Counsel that a Court, in convicting an accused person, can convict on the basis of a confessional statement made by the accused. But that the confessional statement to be relied upon must be voluntarily made by the accused person.
Counsel added, however, that the burden of proving that a confessional statement was voluntarily made rests solely on the prosecution and who must establish this positively. Counsel cited the case of ADEKANBI vs. ATTORNEY-GENERAL, WESTERN NIGERIA (1966) ANLR 46 and GBADAMOSI vs. STATE (1992) 9 NWLR (Pt. 266) 465. Learned Counsel also referred to Section 29(2) and (5) of the Evidence Act, 2011 (as Amended) and submitted that for a Court to rely on a confessional statement, it must have been voluntarily made by the accused. According to learned Counsel, where a confessional statement is found to be involuntary, it should not be part of the evidence upon which the Court could act upon. In the instant case, Counsel said that the Appellant led evidence that the statement which was obtained from him was obtained under duress. He referred once again to page 66 of the Record of Appeal on the issue.
It was further contended by Counsel that this piece of evidence was neither challenged nor contradicted by the prosecution as the Appellant was not cross-examined on the point. Counsel submitted that the law is settled that where a party raises an issue in his defense and was not cross-examined on that issue, it will be treated as uncontroverted evidence and the truth. In this connection, Counsel referred Court to the cases of IRIRI vs. ERHORBOBI (1991) 2 SCJN 1; MOGHALU vs. UDE (2000) 4 WRN 13.
Learned Counsel also told Court that the Appellant gave evidence to the effect that he was tortured and forced to sign the confessional statement which formed the basis of his conviction and that while this was raised at the point of defense, the Court had no way of knowing whether or not the statements made by the Appellant was obtained under duress or not. This is even more so, Counsel said, when the lower Court did not conduct a trial within trial as required. Counsel, however, conceded that there was no way the trial Court could have conducted a trial within trial in view of the time the issue of in voluntariness of the Appellants statement was raised, but further contended that the lower Court, nevertheless ought not to have placed reliance on the extra judicial statement of the Appellant with the state of evidence before the Court at the time of judgment. Counsel referred Court to the cases of EMEKA vs. STATE (2001) 32 WRN 37; AUTA vs. STATE (1975) 1 ALL NLR 163. It was also submitted by Counsel that the position taken by the lower Court on the issue occasioned a miscarriage of justice on the Appellant and urged the Court to so hold. Learned Counsel also urged the Court to resolve the Appeal in favour of the Appellant, discharging and acquitting him of the single Count charge of Armed Robbery.
ARGUMENT BY RESPONDENTýS COUNSEL;
ISSUE ONE;
It was contended by learned Respondentýs Counsel that to establish the crime of armed robbery against an accused person, the prosecution is saddled with the responsibility of proving the following ingredients of the offence:
a. That there was a robbery
b. That it was an armed robbery, and
c. That the accused was the robber or one of the robbers.
Counsel cited the case of ADEKOYA vs. THE STATE (2012) 209 LRCN p. 131 at p. 151 UJJ.
In respect of the first ingredient, learned Counsel referred Court to Section 401 of the Criminal Code Act Cap. 77 Laws of Federation, 1990