- Flynote
- HR|Death penalty
Between
ADESINA KAYODE
and
THE STATE
(Delivered by OLU ARIWOOLA, JSC)
This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on the 12th day of October, 2011, wherein the conviction and sentence of the appellant for the offences of conspiracy to commit armed robbery and armed robbery were affirmed.
The appellant and two others had been arraigned and jointly charged before the High Court of Justice of Ogun State sitting in Ijebu Ode, with the following offences:
Count I
Conspiracy to commit armed robbery contrary to Section 6(b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap. R.ll), Laws of the federation of Nigeria, 2004.
Count II
Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap, RII, Laws of the Federation of Nigeria, 2004.
The facts of the case are as follows: Upon arraignment, the appellant had pleaded not guilty as the other two co-accused. The prosecution called two witnesses and tendered couple of exhibits including Statements obtained by the police. The appellant testified but called no other separate witness while the others also testified in defence. The 1st accused however called his mother to testify.
The prosecution's case is that sometime on the 7th day of May, 2007, at about 930p.m.y PW1 - Osiyemi Rafiu Niyi, the Managing Director of the FAO Petroleum Filling Station, llese via Ijebu-Ode, closed from work at the Station and drove out in a M/Benz 230 car and headed toward the toll gate. He was in the car with one Samson Agbo, one of the Petrol Attendants. He carried with him in the car the total sum of three hundred and fifty seven thousand, one hundred and fifty Naira (N357,150.00) being the proceeds of that day's sale. As he got to Hone, a Motorcycle he had noticed through the side mirror coming behind with three men on it overtook him and crossed his car in the front blocking his way. The said men came down and ordered him to come out of the car. He was dragged out of the car, attacked and taken into the nearby bush, where he was stabbed with a broken bottle. The attendant with him in the car escaped and ran away. The three assailants took away the money he had with him and the two telephone handsets. One of them threw his car key away into the bush, and sped off with the motorcycle. PW1 cried for help and people came round to help. Some commercial motorcyclists pursued the assailants but could not get them. One of his brothers - Leke Osiyemi later came to the scene of the incident and mentioned that he had earlier seen the 1st accused, Kolawole Okunade, who was a member of the staff of Petrol Station, around the station.
The attack was reported to the Police. On the next morning of 8th May, 2007 at about 6.30am, PW1 went to the house of the 1st accused to ask him if he had any clue to the attack on him. The l5t accused was not in the house but one Biodun, a senior brother to him assisted to call the 1st accused on phone. The police were invited and arrested the 1st accused in his house. He later confessed to the crime and gave the names of the appellant and another as co-accused. Both the appellant and the co-accused were arrested. The sum of two hundred and forty three thousand, one hundred and thirty Naira (N243,130.00) was later recovered from 1st accused while one of the handsets - a Nokia was recovered from the appellant. The 1st accused took the police and PW1 to the spot where he had kept his black jacket he wore and used for the operation. The victim was later taken to the State Hospital for treatment.
In defence, the appellant and the co-accused resiled on their statements earlier made to the police confessing to the crime. After the conduct of trial within trial, the trial court overruled the objection to the admissibility of their statements. Each statement was admitted as Exhibits. At the conclusion of the trial, the court in its considered reserved judgment found the accused persons guilty as charged, convicted and sentenced each of them to death by hanging.
The appellant was dissatisfied with the judgment of the trial court hence he appealed to the Court of Appeal, Ibadan, The court below found the appeal unmeritorious and dismissed same leading to the instant further appeal to this court.
In the Notice of Appeal filed on 3rd of February, 2012, the appellant raised seven (7) grounds of appeal against the judgment of the court below.
When the appeal came up for hearing on 19th November, 2015, the learned counsel for the appellant adopted the appellant's brief and reply brief of argument settled by Uche Obi Esq,(now a Senior Advocate of Nigeria). He relied on the arguments' therein to urge the court to allow the appeal, set aside the judgment of the court below, discharge and acquit the appellant of the offences with which he was charged. The appellant's brief of argument and the reply brief of argument to the respondent's brief were filed on 31/7/2012 and 09/12/2014 respectively but both were deemed as properly filed and served on 14/05/2015.
The learned counsel for the State referred to the respondent's brief of argument filed on 8/12/2014 but was deemed as properly filed and served on 14/05/2015. He adopted and relied on same to urge the court to dismiss the appeal and affirm the decision of the court below, which had earlier affirmed the judgment of the trial court.
In the appellant's brief of argument, the appellant had distilled from the seven (7) grounds of appeal, four (4) issues for determination of the appeal as follows:-
Issues for Determination
1. Whether the findings of fact of the learned Justices of the Court of Appeal and the decision flowing therefrom, affirming the conviction and sentence of the appellant, were not perverse and occasioned a miscarriage of justice to the appellant in the circumstances. (Distilled from ground 4).
2. Whether learned Justices of the Court of Appeal were right to have affirmed the conviction and death sentence of the appellant for armed robbery when it was clear, from the record, that the prosecution failed to prove a case of armed robbery against the appellant beyond reasonable doubt as required by law. (Distilled from ground 2)
3. Whether the learned Justices of the Court of Appeal were right to have affirmed the conviction and death sentence of the appellant for conspiracy to commit armed robbery when it was clear from the record, that the prosecution failed to prove a case of conspiracy to commit armed robbery against the appellant beyond reasonable doubt as required by law. (Distilled from ground 3).
4. Whether the learned Justices of the Court of Appeal were right to have endorsed the heavy reliance on the Exhibits C and G by the trial court in convicting the appellant. (Distilled from grounds land 6).
In the respondent's brief of argument duly adopted, based on the grounds of appeal filed with the Notice of Appeal by the appellant the respondent distilled the following three issues for determination of this appeal.
Issue 1 - Whether the learned Justices of the Court of Appeal were right in affirming that the trial court was right in admitting Exhibit G (the confessional Statement of the appellant) in evidence and attaching evidential weight to it and using same in convicting appellant.
Issue 2 - Whether the respondent proved the offences of conspiracy to commit armed robbery and armed robbery against (sic) reasonable doubt against the appellant.
Issue 3 - Whether a slip of the pen or a clerical error at page 209 lines 8-16 of the record of appeal inadvertently taken the appellant who was the second accused as the first accused has occasioned miscarriage of justice.
There is no doubt that the appellant's four issues were distilled from five of the seven grounds of appeal filed by the appellant. In other words, the four issues were generated from oniy grounds 1,2,3,4, and 6 of the grounds of appeal, while no issue has been distilled from grounds 5 and 7, It is trite law that any ground of appeal from which no issue has been distilled is deemed abandoned and no argument on such ground can be countenanced by the court. They are incompetent. Accordingly, grounds 5 and 7 of the grounds of appeal filed by the appellant having been abandoned are to be discountenanced as no argument can be based on them. Appeal is decided on the issues formulated from the grounds of appeal. See; West African Examination Council (WAEC) Vs Omodolapo Yemisi Adeyanju (2008) 7 SCM 173 at 188; (2008) 9 NWLR (Pt. 1092) 290; Albert Afegbai Vs Attorney General Edo State & Or (2001) 14 NWLR (Pt,733) 425 at 451; (2001) 11 SCM 42; Ogundiya Vs. The State (1991) 3 NWLR (Pt.181) 519 at 532-533. The said two grounds 5 & 7 are accordingly struck out.
On a careful reading of the issues formulated by the appellant, I am of the view that they are rather nebulous, clumsy and unclear. So also are the three issues distilled by the respondent, which were not even identified with any specific ground of appeal filed by the appellant.
It is already settled, that in a situation like this, the court is not only obliged but entitled to reframe or reformulate issues from the competent grounds of appeal filed by the appellant for the purpose of clarity and precision and to lead to proper determination of an appeal. See; Okoro Vs. The State (1988) 12 SC 191 Latinde & Anor Vs Bella Laiunfin (1989) 45 SC 59; (1989) 5 SCNJ 59.
In Unity Bank Plc & Anor Vs Edward Buhari (2008) 2 SCM193 at 240, this court had stated as follows;
"It is now firmly settled that the purpose of framing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity,"
See also; Musa Sha (Jnr) & Anor Vs Da Ray Kwan & 4 Ors (2000) 8 NWLR (Pt670) 685; (2000) 5 SCNJ101.
For a better understanding of the issues arising from the competent grounds of the appellant's Notice of Appeal and for clarity, I shall reframe the issues as follows, before I proceed to consider the argument of counsel.
Issue 1 - Whether the Justices of the Court Appeal were right, in view of the findings of fact and the circumstances of the case, in affirming the conviction and sentence of the appellant by the trial court (Grounds 2 and 4).
Issues 2 - Whether the Justices of the Court of Appeal were right in the circumstances of this case, to have endorsed the trial court's reliance on Exhibits C and G in convicting and sentencing the appellant (Grounds 1 and 6)
Issue 3 - Whether the Court below was right in affirming that the prosecution in the circumstance of this case proved the offences of conspiracy to commit armed robbery and armed robbery, against the appellant beyond reasonable doubt as required by law. . (Ground 3).
In arguing the appeal, learned counsel for the appellant took the issues seriatim. On his issue one, he submitted that the findings of fact of the learned justices of the Court of Appeal and the decision flowing therefrom, affirming the conviction and sentence of the appellant, were perverse and occasioned a miscarriage of justice. On situations when the findings of a court can be said to be perverse he cited Lagga Vs. Sarhuma (2008) 16 NWLR (Pt.1114) 427 at 455, State Vs. Aje (2000) 11 NWLR (Pt.678) 434 at 449,
He referred to page 21 lines 8-16 of the judgment which is paragraph 1 on page 209 of the record, he contended that there was no place where the appellant who was 2nd accused at the trial court was said to be an employee of PW1 and there was also no place where he was said to have been seen hanging around PW1's filling Station. He contended further that the statement of the court referred to shows that one of the major reasons why the court affirmed the judgment, conviction and sentence passed on the appellant by the trial court was because the court below believed that the appellant had the opportunity to commit the crime and this belief of the court below was based on the conclusion reached by that court that the appellant was an insider.
Learned Senior counsel contended that the best and only way of resolving this issue is for the court to look at the record as recorded by the trial court and upon which the court below sat on appeal, and to see whether there was any evidence that was led before the trial court that justifies the finding of fact reached by the court below which led to the conclusion that led to the affirmation of the conviction and sentence of the appellant. He submitted that as there was no such evidence on record, this court is duty bound to quash the lower court's affirmation of the conviction and sentence of the appellant.
Learned Senior counsel referred to pages 42 line 41 to 43 line 2 for the testimony of PW1 speaking about 1st accused person. From the said testimony, learned counsel contended that among the accused persons, only the 1st accused - Kola Okunade was said to be a staff or employee of PW1 but not the appellant.
Learned Senior counsel submitted that the fact that a court considered matters that are not before it, in reaching its judgment is so fundamental that it strikes at the very root of that decision and totally vitiates that decision. He relied on Okafor Vs Police (1963) All NLR 523. He submitted that the court below had totally ignored the facts and evidence led before the trial court, before affirming the conviction and sentence of the appellant as its findings and conclusion flowing therefrom are such that no reasonable tribunal could have arrived at, in the light of the evidence before it. He submitted that there cannot be a clearer case of a serious miscarriage of justice than the instant, where the appellant's conviction and sentence were affirmed by the court below on the mistaken belief that it was affirming the conviction and sentence of another person, that is, the 1st accused before the trial court - Kola Okunade. He further submitted that the appellant was denied fair hearing, as his own appeal was not considered by the court below. He urged the court to resolve this issue in favour of the appellant, set aside the decision of the court below, discharge and acquit the appellant.
On the appellant's second issue as formulated from his ground 2, learned Senior counsel submitted that the court below was terribly in grave error to have affirmed the conviction and sentence of the appellant for armed robbery when it was clear, from the record that the prosecution failed to prove a case of armed robbery against the appellant beyond reasonable doubt as required by law.
He referred to the ingredients the prosecution is required to prove in order to establish the offence of armed robbery against an accused person. He submitted that the three requirements must be contemporaneously proved and that failure to establish anyone would be fatal to the prosecution's case and would inexorably lead to a verdict of not guilty. He cited Nwokodi Vs COP (1977) NSCC 127.
On the first ingredient, learned counsel contended that the prosecution was bound to show that (a) something belonging to the complainant was actually stolen, and (b) at or immediately before or after the time of stealing the thing, actual violence was used or threatened to be used on any person or property in order to obtain or retain the thing stolen or prevent or overcome resistance to its being stolen or retained. He referred to Section 11 of the robbery and Firearms (Special Provisions) Act Cap 11, Laws of the Federation of Nigeria, 2004,
Learned Senior counsel referred to the testimony of PW1 & PW2 on pages 41, 42 and 71 of the record of proceedings, and contended that the testimonies are not enough to satisfy the level of proof required of the prosecution. He stated that there were many questions that were begging to be answered that no reasonable appellate court could have affirmed that it was established that some things were actually stolen from PW1. He contended that since PW1 did not identify specifically the money allegedly stolen from him, by way of denominations, how many bundles, type of wrapper etc, and DW2's explanation as to how the money found on 1st accused got to him as a loan she (DW2) took from Cooperative Society and bank (FCMB), the recovery of money from the house of the 1st accused ought not to have invariably led to the conclusion that the money was the one stolen from PW1. He urged the court to hold that the prosecution failed to establish beyond reasonable doubt that something was stolen from PW1.
On the allegation of use of violence or threat of violence before or after the time of the alleged stealing, he referred to the testimony of PW1 on pages 42 lines 33 to 35 of the record and 43 lines 2 to 4 and 17. And PW2 on page 44 lines 22-24. Learned counsel contended that the prosecution failed to call as a witness, the attendant who was said to be with PW1 in his car when he was attacked. Neither was part of the broken bottle said to have been used to stab PW1 produced. He submitted that the prosecution did not prove that there was any robbery.
On the requirement to prove that the alleged robbery was an armed robbery, learned counsel submitted that the prosecution was duty bound to prove that when the alleged robbery took place, the accused persons were either armed with any firearms or any offensive weapon or in company with any person so armed or that at or immediately before or after the time of the said robbery the said offender wounds or uses any personal violence to any person. He submitted that there was not enough evidence from the prosecution to show that the robbery was an armed robbery. He referred to the testimony of PW1 and PW2 and submitted that the testimony was grossly insufficient to warrant a conclusion to affirm the conviction and sentence of the appellant. He urged the court to hold that the prosecution did not establish that the robbery, if any, was an armed robbery.
On the requirement to prove that the appellant was one of those who took part in the robbery, learned counsel submitted that the prosecution was bound to show either that the appellant and the other accused were arrested at the scene of the crime or that they were properly identified by eye witness.
Learned Senior counsel contended that it was not in dispute that the accused persons were not arrested at the scene of the crime. He referred to the testimony of PW1 on pages 43 to 44 and contended that the conviction was based on the testimony and alleged confessional statement of appellant. He submitted that the testimony and statement of PW1 that were relied upon by the court were grossly insufficient to link the appellant with the robbery.
Learned Senior counsel referred to the holding of the trial court that the failure of the prosecution to call the only eye witness - Mr. Samson Agbo, was not fatal to their case and held a contrary view, that the failure was fatal in that he is a vital witness who would have thrown more light at the specific identification of the people that attacked them on that day. He contended that there was no evidence on record as to why the witness was not called by the prosecution. He cited Usufu Vs. State (2007) 1 NWLR (Pt.1020) 94. He urged the court to apply Section 16 (d) of the Evidence Act, 2011 on failure of the prosecution to call vital evidence that was available but not produced.
He urged the court to resolve this issue in favour of the appellant and set aside the decision of the court below that had earlier affirmed that of the trial court.
On the third issue, learned counsel submitted that the learned Justices of the Court of Appeal were wrong to have affirmed the conviction and death sentence of the appellant for conspiracy to commit armed robbery when it was clear, from the record that the prosecution failed to prove case of conspiracy to commit armed robbery against the appellant beyond reasonable doubt as required by law. He referred to Section 135 (1) of the Evidence Act, 2011 and contended that in Nigeria where the question as to whether or not a crime has been committed arises in any case, it has to be proved beyond reasonable doubt relying on Stephen Oteki Vs. A.G Bendel State (1986) 2 NWLR (Pt.24) 648. And where it is found that the prosecution failed to discharge that burden, any conviction arrived at in such a case, is normally overturned by this court. He cited Nwabueze & Ors Vs. The State (1988) 2 NSCC 389 at 395.
Learned Senior counsel referred to conspiracy as an agreement by two or more persons to do an illegal act or to do a legal act by illegal means, relying on Obikor Vs. The state (2002) 6 SC (Ptll) 33. He submitted that to prove that the offence of conspiracy has been committed, the prosecution is not just bound to establish that there was a physical meeting but it also has to prove, beyond reasonable doubt, that there was a meeting of the minds of the accused persons. He cited Musa Vs. The State (2005) 2 FWLR (Pt.261) 343 at 344; Oyediran Vs. The Republic (1967) NMLR 122 at 128.
Learned Senior counsel conceded that circumstantial evidence is enough to ground a conviction for conspiracy but he submitted that such circumstantial evidence must be such that must be positive, unequivocal and must lead to the irresistible conclusion that it is the accused that committed the crime. He reiied on Chime Ojiofor Vs. The State (2001) 9 NWLR (Pt.718) 371 at 385; Ebeneni Vs The State (2009) 37 NSCQR (Pt.II) 803 at 807.
He contended that the trial court relied heavily on the alleged confessional statements of the accused persons - Exhibits C, E, F. G & H in reaching the conclusion that there was indeed a conspiracy between the appellant and the other two accused persons to commit armed robbery on PW1. He referred to the alleged confessional statements of the 1st accused, the appellant as 2nd accused and the 3rd accused persons, and contended that there is nothing in the statements that shows that the appellant conspired with the other accused persons. He submitted that what was contained in the said confessional statements is not enough to ground a conviction of the appellant and the other accused for conspiracy to commit armed robbery on PW1 or any other person for that matter. He conceded that at best, it may only go to establish that the appellant and the other accused persons conspired to assault PW1 or at worst to cause him grievous bodily harm. He urged the court to resolve this issue in favour of the appellant and hold that the offence of conspiracy to commit armed robbery was not proved against the appellant beyond reasonable doubt.
On his issue 4, learned Senior counsel submitted that the learned Justices of the Court of Appeal were manifestly wrong to have endorsed and affirmed the heavy reliance on Exhibits C and G by the trial court in convicting the appellant.
Learned Senior counsel contended that the law as regards denied alleged confessional statement is that upon the denial, a burden is placed on the prosecution to show that the confession was made voluntarily without any inducement, by way of threat of a detriment, if the confession is not made, or a promise of an advantage if the confession is made. He relied on Ameh Vs. Queen an unreported case of this court, Appeal No.34/1961 decided on 7th April, 1961.
He conceded that a denied confession can be admitted in evidence by a court and that it can even be the basis of a conviction but he submitted that it ought not to ground a conviction, especially in capital offences, without there being corroboration from other independent pieces of evidence.
Learned Senior counsel submitted that an admission or confession is admissible only against the maker. He cited Enitan Vs State (1986) 3 NWLR (Pt.30) 604; Ohuka & Ors Vs. The State (1988) 2 NSCC 371. He submitted further that when the sworn testimony of a witness before the court differs from his previous extra-judicial statement to the police, and there is no explanation for the difference, the court should regard his subsequent testimony before the court as unreliable while the previous statement to the police should totally be disregarded as being no evidence upon which the court can act. He cited Christopher Onubogu Vs. The State (1974) 9 SC 1 at 11; Nwabueze & Ors Vs. The State (1988) 2 NSSCC 389; Asanya Vs The State (1991)1 NSCC 412 at 421.
He submitted further that it is the law that the availability of a confessional statement does not reduce the burden placed on the prosecution to prove its case beyond reasonable doubt relying on Shande Vs. State (2005) 1 NWLR (Pt.907) 218 at 240. He urged the court to resolve this issue in favour of the appellant and to finally allow the appeal by entering a finding that the prosecution did not prove the case against the appellant beyond reasonable doubt. He urged the court to discharge and acquit the appellant.
The learned counsel for the respondent argued the appeal by starting with appellant's confessional statement which was admitted as Exhibit G. He contended that it is the law that a trial court can rely solely on the confessional statement of an accused person to convict him relying on Akpan Vs The State (2008) 8 SCM 68 at 70; Adebayo Vs. A.G. Ogun State (2008) 5 SCM 1 at 15.
Learned counsel referred to the objection raised by the appellant to the admissibility of his alleged confessional statement on the ground that it was not made voluntarily. He referred to the order of trial within trial by the trial judge after which the court overruled the objection and admitted the said statement of the appellant and marked same as Exhibit G, The court found that the said statement was made voluntarily. Learned counsel submitted that the trial court did all that were required to be done before a retracted statement is admitted. He submitted further that the mere fact that the appellant retracted his alleged confessional statement during the trial was not to affect or stop the court from relying on the confession. The trial court was satisfied as to its truthfulness and can rely solely on it to ground conviction. He relied on Dibie Vs. The State (2007) 78 SCM 101.
Learned counsel contended that the trial court considered the fact that the appellant admitted that himself and the 1st accused person attended the same secondary school, in rejecting his testimony that he was questioned in Yoruba but he did not know what was recorded for him in English language.
Learned counsel referred to the testimony of PW1 on how he was attacked and he contended that the statement of the appellant in Exhibit G was corroborated by the testimony of PW1. Similarly, learned counsel contended that the fact that one of the mobile phone handsets that were stolen from PW1 was found ringing on the appellant's body also corroborated his confessional statement and made it positive and direct. He submitted that the trial court rightly admitted the said statement as confession that was possible. And urged the court to hold that the court below rightly affirmed the trial court's reliance on Exhibit G to convict the appellant, having found other facts consistent with and corroborating the confession of the appellant before convicting him on same.
Learned counsel referred to the issue of torture and bloodstain raised by the appellant and the appellant's testimony under examination in-chief in the trial within trial that the injuries on his face and arm were inflicted on him by the men of Odua Peoples Congress (OPC) and that the policemen were not around when the OPC men were beating him.
Learned counsel contended that the issue of torture by the OPC men is not relevant to the statement obtained by the Policemen.
Learned counsel submitted that the fact that the appellant resiled or retracted from his confessional statement at the trial will not hinder the court from relying on the statement to convict him, as such statement is in law part of the evidence adduced by the prosecution. He cited Egbogbonoma Vs The State (1993) 9 SCNJ (Pt. 1) 29. He urged the court to resolve the issue against the appellant and hold that the court below rightly affirmed the decision of the trial court which admitted appellant's statement as confessional and used same to convict him.
On issue two, learned counsel contended that it is the law that the burden of proof on the prosecution is proof beyond reasonable doubt, but this proof is not one beyond all shadow of doubt. He defined conspiracy and referred to the statement made by the appellant Exhibit G wherein he had confessed to having conspired with other co accused to rob PW1. Also, PW2's testimony on the mobile phone handset, that was found on the appellant which he admitted to have stolen from PW1 during the attack on him. He contended that this shows that there were other evidence outside the confession which made the confession possible.
On the offence of conspiracy, learned counsel contended that it is difficult to have direct evidence in support of conspiracy, which is usually inferred from the facts and circumstances of each case. He referred to the testimony of PW1 and Exhibit G and submitted that Exhibit G has shown that the appellant and his co-accused conspired to carry out their attack on PW1. He submitted further that there was enough evidence on ground to enable the trial court rightly infer the offence of conspiracy.
Learned counsel referred to Exhibit E being the statement made by the 1st accused which was admitted without objection. And the fact that it was indeed the confessional statement of the 1st Accused that led to the arrest of the appellant on whom one of the mobile phones which were stolen from PW1 was found. Learned counsel submitted that the confessional statement of 1st accused as a co-accused with the appellant which was admitted on oath without objection is admissible against other co-accused. He relied on Oyakhire Vs. The State (2006) 12 SCM (Pt. 1) 369 at 380 & 381.
Learned counsel submitted that a confession of guilt by an accused is sufficient to warrant conviction without corroborative evidence, if it is direct, positive, duly made and satisfactorily proved. He however conceded that it is desirable to have outside the confession, some evidence of circumstances no matter how slight, which makes it probable that the confession is possible. He contended that corroboration needs not be by direct evidence, that the appellant committed the offence, as it is sufficient if it is merely circumstantial, relying on Dagaya Vs. The State (2006) 2SCM 33 at 67.
On the issue of armed robbery, learned counsel referred to the elements the prosecution is required to establish to sustain conviction.
(i) That there was a robbery or series of robberies;
(ii) That the robbery was an armed robbery;
(iii) That the appellant was one of those who took part in the robbery. He cited Bozin Vs State (1985) 2 NWLR (Pt.8) 465.
On the first and second elements, learned counsel referred to the testimony of PW1, PW2 and Exhibit G, the confessional Statement of the appellant. He submitted that the evidence adduced by the prosecution satisfied the first two elements the prosecution was required to prove. He urged the court to hold that the trial court rightly found that there was a robbery incident and that it was an armed robbery. And that the court below was right in affirming such findings.
On the third ingredient, that the appellant was one of the robbers, learned counsel referred to the prosecution's case, on the arrest of 1st accused upon whose confessional statement the appellant was arrested. The evidence that substantial part of the stolen money was recovered from the 1st accused while one of the robbed mobile phone handsets was found on the appellant. On