Makanjuola v. State (2021)

Makanjuolav.State

IDOWU MAKANJUOLA

V.

THE STATE

SUPREME COURT OF NIGERIA

SC.119C/2019

MARY UKAEGO PETER-ODILI, J.S.C. (Presided)

JOHN INYANG OKORO, J.S.C.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Read the LeadingJudgment)

ADAMU JAURO, J.S.C.

EMMANUEL AKOMAYE AGIM, J.S.C.

FRIDAY, 4TH JUNE 2021

APPEAL – Issues for determination – Formulation of – Power ofappellate court to formulate.

ARMS AND AMMUNITION – “Firearm” – Meaning of – Section 2,Firearms Act.

ARMS AND AMMUNITION – Firearm – Dane gun – Whether canbe regarded as firearm.

ARMS AND AMMUNITION – Firearm – Function of – Whatdistinguishes it from other artifice.

ARMS AND AMMUNITION – Firearm – Prohibited firearms – Typesof – Parts I item 8 and Part II, Schedule to Firearms Act.

CONSTITUTIONAL LAW – Right to fair hearing – Right of accused tobe informed promptly of nature and details of offence – Section36(6), 1999 Constitution and section 203(1), Administrationof Criminal Justice Law of Kwara State.

CRIME – Armed robbery – Ingredients of.

CRIME – Conspiracy to commit armed robbery – What constitutes- Section 6(a), Robbery and Firearms (Special Provisions) Act- Ingredients of.

CRIME – Robbery – Armed robbery – Punishment therefor – Section1(1) and (2), Robbery and Firearms (Special Provisions) Acts.

CRIMINAL LAW AND PROCEDURE – “Firearm” – Meaning of -Section 2, Firearms Act.

CRIMINAL LAW AND PROCEDURE – Character evidence -Bad character of accused – Evidence of – Admissibility of -When admissible – Where admissible – Evidence of previousconviction – Admissibility of – Section 82(1), (2), and (4),Evidence Act, 2011.

CRIMINAL LAW AND PROCEDURE – Charge – Defect in charge- When will not result in quashing of conviction.

CRIMINAL LAW AND PROCEDURE – Charge – Purpose of – Whengood in law.

CRIMINAL LAW AND PROCEDURE – Defences – Alibi – Meaningof.

CRIMINAL LAW AND PROCEDURE – Defences – Defence of alibi- Where raised – Duty of prosecution – Where prosecutionadduces evidence fixing accused at scene of crime – Effect -Evidential burden on accused.

CRIMINAL LAW AND PROCEDURE – Firearm – Dane gun -Whether can be regarded as firearm.

CRIMINAL LAW AND PROCEDURE – Firearm – Function of -What distinguishes it from other artifice.

CRIMINAL LAW AND PROCEDURE – Firearm – Prohibitedfirearms – Types of – Parts I item 8 and Part II, Schedule toFirearms Act.

CRIMINAL LAW AND PROCEDURE – Offences – Armed robbery- Ingredients of.

CRIMINAL LAW AND PROCEDURE – Offences – Conspiracyto commit armed robbery – What constitutes – Section 6(a),Robbery and Firearms (Special Provisions) Act – Ingredientsof.

CRIMINAL LAW AND PROCEDURE – Offences – Robbery – Armedrobbery – Punishment therefor – Section 1(1) and (2), Robberyand Firearms (Special Provisions) Acts.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Burden ofproof on prosecution – Whether shifts.

CRIMINAL LAW AND PROCEDURE – Right to fair hearing – Rightof accused to be informed promptly of nature and details ofoffence – Section 36(6), 1999 Constitution and section 203(1),Administration of Criminal Justice Law of Kwara State.

EVIDENCE – Admissibility – Wrongful admission of evidence -Whether fatal -Whether will lead to reversal of judgment onappeal – Relevant considerations.

EVIDENCE – Character evidence – Bad character of accused- Evidence of – Admissibility of – When admissible – Whereadmissible – Evidence of previous conviction – Admissibilityof – Section 82(1), (2), and (4), Evidence Act, 2011.

EVIDENCE – Proof of crime – Burden of proof on prosecution -Whether shifts.

FAIR HEARING – Right to fair hearing – Right of accused to beinformed promptly of nature and details of offence – Section36(6), 1999 Constitution and section 203(1), Administrationof Criminal Justice Law of Kwara State.

FUNDAMENTAL RIGHTS – Right to fair hearing – Right ofaccused to be informed promptly of nature and details of offence – Section 36(6), 1999 Constitution and section 203(1),Administration of Criminal Justice Law of Kwara State.

PRACTICE AND PROCEDURE – Appeal – Issues for determination- Formulation of – Power of appellate court to formulate.

WORDS AND PHRASES – “Alibi” – Meaning of.

WORDS AND PHRASES – “Character” – Meaning of.

WORDS AND PHRASES – “Firearm” – Meaning of – Section 2,Firearms Act.

Issues:

1.Whether the Court of Appeal rightly affirmed theconviction of the appellant in view of the admission ofthe evidence at the trial tending to show the appellant’sbad character.

2.Whether the Court of Appeal was right when it affirmedthe holding of the trial court that the prosecution provedthe case of conspiracy and armed robbery beyondreasonable doubt against the appellant, having regardto the variance in the date and venue of the offence ascontained in the particulars of the offence and the dateand venue proved at the trial.

3.Whether the Court of Appeal properly affirmed theconviction and sentence of the appellant for theoffence of illegal possession of firearm under section3(1) of the Robbery and Firearms (Special Provisions)Act) 2004 when the prosecution did not prove that thepossession of the gun allegedly found on the appellantis prohibited under the provisions of sections 3, 4 and5 of the Firearms Act.

4.Whether the Court of Appeal understood andconsidered the complaint raised in issue 1 before itand if not whether the non-consideration of the issueoccasioned a miscarriage of justice.

Facts:

The appellant and three other accused persons were at theHigh Court of Kwara State, Ilorin charged with the offences ofconspiracy contrary to section 97 of the Penal Code and robberycontrary to section 1(2) of the Robbery and Firearms (SpecialProvisions) Act respectively. The appellant was also charged withillegal possession of firearms under section 3(1) of the Robberyand Firearms (Special Provisions) Act. The appellant was initiallycharged as the 3rd accused person but became the 2nd accused personupon the withdrawal of the charge against the initial 2nd accusedperson who was confirmed insane and unable to stand his trial.

The case of the prosecution was that on 5th March 2014, theappellant together with three other persons at about 11.30p.m. atAwolowo Road, Tanke Junction, Ilorin, Kwara State flagged downtheir victim, one Kamaldeen Shittu, with a touch light. At the materialtime, Kamaldeen was driving a Kia Rio with registration numberFFA 626 AA. Thinking that he was coming across policemen onduty, he stopped the vehicle. As soon as he stopped the vehicle,one of the accused persons pointed a gun on his head and anotherslapped him. They requested for his car key which he surrenderedto them at gun point.

He was sitting in the middle of the road when some policemenon patrol saw him and enquired from him why he was doing soat that time of the night. He told them the story of how his carwas snatched from him by the gang of robbers. The policemen senta radio message to their office and other officers on patrol wereinformed. Barely forty-five minutes after the incident, some officerson patrol duty saw a Kia Rio at the Saw Mill garage packed withfour men inside the vehicle. They accosted them and in the courseof which one of them pulled a trigger but he was shot by one of theofficers. The policemen arrested all of them and they were chargedto court.

Items recovered from and found intact in the car in theirpossession were all the contents of the car as previously mentioned by the victim. Also recovered were two live cartridges, a locallymade gun, which the appellant admitted belonged to him, and a small axe.

The prosecution called five witnesses and tendered severalexhibits including the locally made gun, which was admitted asexhibit 2.The prosecution witnesses were consistent in theirtestimonies with respect to the date and scene of the event whichshowed beyond doubt that the car was snatched along AwolowoRoad, Tanke area on 5th March 2014 and not at Saw Mill garage on15th March 2014 as contained in the charge. However, the appellantdid not object to any defect in the charge.

The appellant testified in his defence but did not call any otherwitness. He denied knowing anything about the robbery incident andrelied on a case of extortion against the police. According to him,he was a disc jockey at Bovita Hotels and a wristwatch repairer. Hewas on a commercial motorbike to the hotel when he was arrestedon the bike. The police seized the bike, put him in a police vehicleand drove him to the station. The following day, the police askedif he had any relation in Ilorin and they gave him his phone to callhis relatives to come for his bail. On the arrival of his sister at thestation, the police demanded for the sum of N100,000.00 and toldher that if she refused to pay, he would be charged to court. Thesister could not pay and hence the charge.

At the conclusion of trial, the trial court convicted theappellant for illegal possession of firearm, conspiracy to commitarmed robbery and armed robbery. He was sentenced to death andto ten years imprisonment for illegal possession of firearm.

Dissatisfied with the judgment of the trial court, the appellantappealed to the Court of Appeal which affirmed the judgment of thetrial court.

Still dissatisfied, the appellant appealed to the Supreme Court.

Held (Unanimously dismissing the appeal):

1.On Admissibility of evidence of bad character ofaccused –

By virtue of section 82(1), (2), and of theEvidence Act, 2011, except as provided in thesection, evidence of the fact that a defendantis of bad chara cter is inadmissible in criminalproceedings. The fact that a defendant is of badcharacter is admissible

when the bad character of the defendantis a fact in issue; or when the defendant has given evidence ofgood character thereof.

A defendant may be asked questions to show that heis of bad character in the circumstances mentionedin paragraph of the proviso to section 180 of theEvidence Act. Whenever evidence of bad characteris admissible, evidence of previous conviction is alsoadmissible. The hallmark of these exceptions is thatwhenever evidence of bad character is admissible,evidence of previous conviction becomes equallyadmissible. In the instant case, apart from theevidence viva voce of the appellant, exhibit “DWC1”was equally tendered by the prosecution vide the1 st accused person under cross-examination. Theexhibit was in regard to another criminal chargeagainst the appellant and co-accused personsfacing armed robbery prosecution. [Odogwu v. State(2013) 14 NWLR (Pt. 1373) 74; Alake v. State (1991)7 NWLR (Pt. 205) 567 referred to.] (Pp. 260-261,paras. G-B); 262, parpas. B-G)

2.On Meaning of “character” –

Character means the qualities that aggregate tomake an individual human being distinctive fromothers, most especially in regard to morality andbehaviour. It is the disposition, reputation, orcollective traits of a person as they might be gatheredfrom close observation of that person’s patternof behaviour. Thus, a good character invariablydenotes an individual person’s tendency to engagein lawful and moral or virtuous behaviours.Contrariwise, the term ‘bad character’ denotesan individual person’s propensity for, or tendencytoward, unlawful or immoral behaviour. (P. 261,paras. C-E)

Per SAULAWA, J.S.C. at pages 261-262, paras.E-B:

“Instructiv ely, questions regarding moral(good) character have recently occupied acentral place in philosophical discourses.The reason for this development is traceableto the resurgence of publications on modernmoral philosophy. Most particularly, in 1958G.E.M Anscombe published a seminal article‘Modern Moral Philosophy’. It was postulatedtherein by Anscombe that Kantianism andutilitarianism, the two major traditions inWestern Philosophy, perilously placed thefoundation for morality in legalistic notionssuch as duty and obligations:

‘To do ethics properly, Anscombe argued,one must start with what is for humanbeing to flourish or live well. Thatmeant returning to some questions thatmattered deeply to the Ancient Greekmoralist. These questions focused on thenature of “Virtue” … of how one becomesvirtuous … and of what relationships andinstitutions may be necessary to makebecoming virtuous possible:

See Stanford Encyclopedia of Philosophy @Wikipedia.

Aristotle (1.384 – 322 BCE) defines goodmoral character:

‘Excellence (of character) then, is a stateconcerned with choice, lying in a meanrelative to us, this being determined byreason and in the way in which the manof practical wisdom (Phronimos) woulddetermine it.

Now it is a mean between two vices, thatwhich depends on excess and that whichdepends on defect.’

See Nicomachean Ethics 11.6; StanfordEncyclopedia of Philosophy, op cit.”

3.On Whether wrongful admission of evidence fatal –

Where inadmissible evidence is admitted, itbehooves the trial court to expunge such evidencefrom the record and consider if there is any viableevidence upon which the charge could be sustained.In essence, the wrongful admission of an evidenceought not to totally affect the decision of the courtunless the use of such evidence has resulted inoccasioning a miscarriage of justice. In the instantcase, even if the evidence allegedly given undercross-examination by the appellant was expungedfrom the record of proceedings, there would stillbe other pieces of veritable evidence to sustain theappellant’s conviction. [Ugbala v. Okorie (1975) 12SC 1; Okaroh v. State (1990) 1 NWLR (Pt. 125) 128;Okegbu v. State (1979) 11 SC 1 referred to.] (P. 263,paras. A-D)

4.On Whether wrongful admission of evidence will leadto reversal of judgment on appeal –

The admission of an inadmissible evidencesimpliciter does not fatally affect a case withoutmore. The inadmissible evidence has to beconsidered in context, that is to say, that the appellatecourt would take a look at it to see if indeed it isinadmissible and if it is, what would happen to therest of the case were it to be expunged. That is, ifthere is any remaining legal evidence to sustain thecharge or the claim before the trial court. This isin consonance with the principle that the wrongfuladmission of evidence shall not necessarily ortotally affect the decision of the court unless the useof the alleged evidence occasioned a miscarriageof justice. In the instant case, the admission of theanswer on the appellant’s bad character was notprejudicial to him as its foundation was brought inby the appellant himself through his counsel. Evenif it was inadmissible, it would not fatally affect theprosecution’s case as other pieces of evidence weresufficient to secure a conviction if the evidence in dispute was expunged. [Ugbala v. Okorie (1975) 12SC 1; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946)671 referred to.] (Pp. 277-278, paras. H-B)

5.On Whether wrongful admission of evidence will leadto reversal of judgment on appeal –

Inadmissible evidence does not become admissiblemerely because counsel did not raise objection whenthe evidence was sought to be brought in since thetrial court has a duty to step in to stop inadmissibleevidence being allowed in. However, where suchevidence not objected to and not stopped frombeing admitted by the trial court has been admitted,the appellate court has to be careful in allowing anappeal on the ground of reception of inadmissibleevidence since the appellate court has to weigh howthe inadmissible evidence has impacted the caseand if it had caused a miscarriage of justice. Thisis because there may be other independent cogentand credible evidence upon which the convictionof the appellant would be affirmed by the Court ofAppeal, outside the inadmissible evidence, whichsupports and establish the case of the respondentbeyond reasonable doubt. [Lawal v. State (1966) 1SCNLR 325; Okaroh v. State (1990) 1 NWLR (Pt.125) 128 referred to.] (P. 278, paras. E-H)

6.On Burden of proof on prosecution in criminal case –

By the provision of section 36(5) of the Constitutionof the Federal Republic of Nigeria 1999 (asamended), every person who is charged with acriminal offence shall be presumed to be innocentuntil he is duly proved guilty beyond reasonabledoubt. A fortiori, by virtue of section 138(1) of theEvidence Act, if the commission of an offence bya party is directly in issue in any criminal or civilproceeding, it must be proved beyond reasonabledoubt. By the combined effect of the provisionsof section 36(5) of the Constitution and section138(1) of the Evidence Act, the prosecution must prove its charge against the appellant beyondreasonable doubt. Otherwise, the appellant oughtto be acquitted and discharged. The heavy burdensquarely placed upon the prosecution under section36(5) of the 1999 Constitution and section 138(1)of the Evidence Act does not shift. In ensuring thatthe prosecution proves its case beyond reasonabledoubt against an accused person, the trial courtor the appellant court is enjoined to ensure thatnothing is taken for granted. [Chukwu v. State (2007)13 NWLR (Pt. 1052) 430; Alake v. State (1991) 7NWLR (Pt. 205) 567; Ukpe v. State (2001) 18 WRN84; Ayub-Khan v. State (1991) 2 NWLR (Pt. 172)127; Bakare v. State (1987) 1 NWLR (Pt. 52) 579;Ede v. F.R.N. (2001) 1 NWLR (Pt. 695) 502; Itu v.State (2016) 5 NWLR (Pt. 1506) 443 referred to.](Pp. 263-264, paras. F-G)

7.On Burden of proof on prosecution in criminal case –

Whenever anybody is charged with the commissionof a criminal offence, the onus is on the prosecutionto prove the guilt of the accused beyond reasonabledoubt by virtue of section 138 of the Evidence Act.The burden on the prosecution to prove the offenceagainst the accused is one that does not shift andincludes the duty to prove all the ingredients ofoffence beyond reasonable doubt. [Itu v. State (2016)5 NWLR (Pt. 1506) 443; Eromosele v. F.R.N. (2017)1 NWLR (Pt. 1545) 55; Abdullahi v. State (2008) 17NWLR (Pt.1115) 203; Famakinwa v. State (2016) 11NWLR (Pt.1524) 538 referred to.] (P. 280, paras.C-E)

8.On Punishment for robbery and armed robbery –

By virtue of section 1(1) and of the Robberyand Firearms (Special Provisions) Act, any personwho commits the offence of robbery shall upontrial and conviction under the Act be sentenced toimprisonment for not less than twenty-one years.

If any offender mentioned in section 1(1) is armedwith any firearms or any offensive weapon or isin company with any person so armed; or at orimmediately before or after the time of the robbery,the offender wounds or uses any personal violenceto any person, the offender shall be liable uponconviction under the Act to be sentenced to death.(P. 281, paras. A-C)

9.On What constitutes offence of conspiracy to commitarmed robbery –

By virtue of section 6(a) of the Robbery andFirearms (Special Provisions) Act, any person who

aids, counsels, abets or provides any personwith firearms for use to commit an offence(a)under sections 1, 2, 3 and 4 of the Act;

conspires with any person to commit such(b)an offence; or supplies, procures or provides any personwith firearms for use to commit an offenceunder section 1 or 2 of the Act, whetheror not he is present when the offence is(c)committed or attempted to be committed,

shall be deemed to be guilty of the offence asa principal offender and shall be liable to beproceeded against and punished accordingly underthe Act. Under the provision of section 6(a) of theAct, the prosecution has the onus of proving beyondreasonable doubt the following ingredients:

the existence of an agreement between twoor more persons to do an illegal act or an act(a)which is not illegal by illegal means;

that the illegal act was done in furtherance ofthe agreement and that each of the accused(b)persons participated in the illegality.

[Abdullahi v. State (2008) 17 NWLR (Pt. 1115)203; Gbadamosi v. State (1991) 6 NWLR (Pt. 196)182; Awosika v. State (2010) 8 NWLR (Pt. 1198) 49referred to.] (Pp. 264-265, paras. H-H)

Per SAULAWA, J.S.C. at pages 265-266, paras.H-E :

“In my considered view, section 6 of the Robbery and Firearms (Special Provisions)Act (supra) is virtually in pari materia withsection 8 of the Accessories and Abettors Act1861, as amended by the Criminal Law Act1977 of the United Kingdom, which provides:

‘8. Whosoever shall aid, abet, counsel,or procure the commission of anyindictable offence, whether thesame be an offence of common lawor by virtue of any act passed orto be passed, shall be liable to betried, indicted, and punished as aprincipal offender.’

In the case of R. v. Gnango Appeal No.(2011) UKSC 59, the Supreme Court aptlypostulated on the fundamental doctrine ofParasitic Accessory Liability (which is akinto the principle of Criminal Conspiracy):

‘The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B inthe course of committing it, DI commits crime B which D2 foresees that he might commit …

There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder. All that is required is proof of a common purpose to commit an affray which is shared by DI and D2 in the sense that they agreedto commit the offence, and a murder committed by DI in the course of the affray commission of which is foreseenas a possibility … All the members of the group who foresee that he might use theknife to commit a murder would also beliable for murder. The fact that they were also guilty of an affray would be no bar totheir liability for murder.

See R. v. Gnango (2011) UKSC 59; (2011)LPELR – 17863 (UKSC), Per Lord Dyson @67 – 68 paragraphs F – E.”

10.On Ingredients of offence of armed robbery –

For a conviction for the charge of armed robbery tocreditably be sustained, the prosecution is equallyrequired to prove beyond reasonable doubt thefollowing ingredients:

(a)that there was a robbery or series of robberies;

(b)that the robbery was armed robbery; and

that the defendant participated in the armed(c)robbery.

In the instant case, the appellant’s grouse was notthat the armed robbery for which he stood trialdid not take place at all or that he was not involvedtherein. The appellant’s only grouse was that theprosecution defectively claimed the incident tookplace at Sawmill Garage Area instead of AwolowoRoad, Tanke Area, both in Ilorin. Likewise, theappellant raised the issue of the date on the chargesheet being different from the date given in evidenceby the prosecution witnesses. The Court of Appealfound that the place of the incidence and the dategiven in evidence as opposed to the date on thecharge sheet were not enough reasons to absolvethe appellant of the offences charged and that therewas a nexus between the offences charged andthe appellant’s conviction by the trial court. Thefindings were aptly cogent, unassailable and duly inleague with the evidence on record. [State v. Salawu(2011) 17 NWLR (Pt. 1279) 580; Ikpo v. State (2016)10 NWLR (Pt. 1521) 501 referred to.] (P. 266-267,paras. G-G)

11.On Right of accused person to be informed promptly ofnature and details of offence –

It is a constitutional duty imposed on the prosecutionto inform an accused promptly of the nature and details of the offence he is alleged to have committedby virtue of section 36(6) of the Constitution of theFederal Republic of Nigeria, 1999. This duty is oneimposed to enable the accused adequately preparefor his defence and to guarantee the accused afair hearing in the defence of the offence allegedlycommitted by him. (P. 282, paras. B-C)

12.On Right of accused person to be informed promptly ofnature and details of offence –

One of the surest ways of securing the fair hearingof an accused is the provision of section 109 of theAdministration of Criminal Justice Law of KwaraState which provides for the institution of a criminaltrial by way of information or by filing a charge.By the provisions of section 203(1) of the Law, thecharge or information is to contain such materials,like the time the date and the place where theoffence was committed, as are reasonably sufficientto give the accused notice of the offence which he ischarged with. An accused is entitled to be furnishedwith the time, date and place of the offence. Thecourt and the parties are bound by the charge laidagainst the accused and to which he pleaded. In thiscase, a charge was filed by the prosecution allegingthat the offence took place at Saw Mill Area on15/03/2014. In proving the offence, the prosecutioncalled five witnesses all of whom testified that therobbery was committed at Awolowo Road, TankeArea on 5/03/2014, a place and date different anddistinct from the venue and the date of the offencecharged. The appellant was convicted for theoffence proved at the trial which conviction wasaffirmed by the Court of Appeal. The variationin date and place of the robbery could not, in thepeculiar circumstances of the case, be regarded asfundamental as nothing on record showed that theappellant was misled or that the differences in dateand place occasioned a miscarriage of justice. The Court of Appeal properly considered the situation.

[Sanni v. State (2015) 15 NWLR (Pt. 1482) 522referred to.] (Pp. 282-283, paras. C-H)

13.On When defect in charge will not result in quashing ofconviction –

A defect, error or omission that does not prejudicethe defence would not lead to the quashing of aconviction on a charge for a known offence. Theemphasis is not on whether or not there weredefects, errors or omissions in the charge, but onwhether or not those defects, errors or omissionscould and did in fact mislead the defence. [Ogbomorv. State (1985) 1 NWLR (Pt. 2) 223 referred to.] (P.291, paras. B-C)

14.On Purpose of charge in criminal case –

The main purpose of a charge is to give the accusedperson notice of the case against him. Once thecharge discloses an offence with the necessaryparticulars that should be brought to the notice ofthe accused person in order to save him from beingprejudiced or embarrassed, such a charge will begood in law. In the instant case, the appellant’sgrouse was not that he took part in the robberyincident for which he was tried but that the chargedefectively claimed that the event occurred atSawmill Garage area instead of Awolowo Road,Tanke area, both in Ilorin. He was not misled in thetrial and the minor defects did not prejudice himin the trial. [Idi v. State (2019) 15 NWLR (Pt. 1696)448; John v. State (2019) 9 NWLR (Pt. 1676) 160;Umar v. F.R.N. (2019) 3 NWLR (Pt. 1660) 549; Davidv. C.O.P. (2019) 2 NWLR (Pt.1655) 178 referred to.](P. 291, paras. C-F)

15.On Meaning of “firearm” –

The term “firearm” denotes a weapon that expelsa projectile, such as a bullet or pellets by thecombination of gun powder or other explosive. Itis also termed gun. Thus, a firearm is any kind ofgun specifically designed to be readily carried and used by a person. Historically, the first firearmoriginated in the 10 th century China, when bambootubes containing gunpowder and pellet projectileswere mounted on spears to make portable firelance. This was operable by a single person. Modernfirearms can be described by their caliber, that is,bore diameter. For pistols and rifles, this is given inmillimeters or inches or in the case of short guns bytheir gauge. A firearm is a barreled ranged weaponthat inflicts damages on targets by launching one ormore projectiles driven by rapidly expanding highpressure gas produced by exothermic combustion(deflagration) of chemical propellant, historicallyblack powder, now smokeless powder. Accordingto the United Nations International Protocol onFirearms, “firearm” shall mean any portablebarrelled weapon that expels, is designed to expelor may be readily converted to expel a shot, bulletor projectile by the action of an explosive, excludingantique firearms or their replicas. Antique firearmsand their replicas are defined in accordance withdomestic law. (Pp. 268-269, paras. G-D)

16.On Meaning of “firearm” –

.By virtue of section 2 of the Firearms Act, Cap. 146,Laws of the Federation of Nigeria, 1990, a firearmis any lethal barrelled weapon of any descriptionfrom which any shot, bullet or other missile canbe discharged and includes a prohibited firearm,a personal firearm and a muzzle-loading firearmof any of the categories referred to in Parts I, IIand III respectively of the Schedule to the Actand any component part of such firearm. Fromthe provision of section 2 of the Firearm Act, anylethal barrelled weapon of any description qualifiesas a firearm provided it can shoot a pellet. Theprovision of the law only expanded the realm ofprohibition to include muzzle-loading firearm ofany of the categories referred to in Parts I, II andIII respectively of the Schedule to the Act and anycomponent part of such firearm. In the instant case, there was uncontrover ted evidence that exhibit 2,the locally made gun, was fired at the point of arrestof the appellant and his cohorts. The appellant’scontention on whether exhibit 2 was a prohibitedfirearm within the meaning of the Firearms Actwas loose and had no reasonable end. (P. 285, paras.C-H)

17.On Function of firearm and what distinguishes it fromany other artifice –

A firearm, howbeit a locally made gun or anyother gun, must be capable of firing ammunition.The characteristic of firing ammunition is theoriginal function of a gun or firearm. That is whatdistinguishes it from other artifice. [Jiya v. State(2020) 13 NWLR (Pt. 1740) 159 referred to.] (Pp.284-285, paras. F-B)

18.On Types of prohibited firearms –

Part I item 8 of the Schedule to the Firearms Act,Cap. F28, Laws of the Federation of Nigeria, 2004prohibits any other firearm not specified in Part IIor III of the Schedule. Part II also prohibits shortguns other than automatic and semi-automaticshortguns and shortguns provided with any kind ofmechanical reloading device. In the instant case, theappellant’s argument on whether or not a locallymade pistol is within the prohibited firearms wasa none flier and of no effect, since the subject waswell within what has been prohibited by law. (Pp.285-286, paras. H-C)

19.On Whether dane gun can be regarded as firearm –

Per SAULAWA, J.S.C. at pages 269-270, paras.E-B:

“Originally, the ‘dane gun’ was a type of long-barrelled flintlock musket imported into WestAfrica by Danish traders prior to the mid-18 thcentury. The dane guns were used extensivelywithin the slave trade period as goods totrade as well as a means of acquiring newslaves. In 1671, the Danish Africa Company was incorporated (formatly Chartered byKing Christian V on March 11, 1671):

‘In the 17 th and 18 th centuries, the companyflourished from the North Atlantictriangular trade routes. Slaves from thegold coast of Africa (Ghana) weretraded for molasses and rum in the westIndies …

Throughout the transatlantic slave trade,it is estimated that about 12.5 millionAfricans were taken captive and 10.7million of them were transported tothe Americas. The Danish slave tradeconstituted about 1 percent of this trade,with “about 100,000 Africans embarked.’

Denmark was reportedly the first Europeancolonial empire to ban its slave, trade in1792 although this effect until 1803, andillegal trading continued into the nineteenthcentury.

See: Wikipedia.

Thus, against the backdrop of the far-reachingpostulations, any lingering doubt regardingwhether or not a ‘Dane gun’ is indeedqualified to be regarded as a ‘firearm’ withinthe purview of the law, ought to have beenevaporated. Hence, in my considered view,the concurrent findings of the court below (atpages 303 lines 8 – 14 of the record), to theeffect that the trial court rightly convictedthe appellant for the offence of being inpossession of firearms, are very much apt,cogent, unassailable, and duly supported bythe evidence on record.”

20.On Meaning of “alibi” –

The term “alibi” is derivatively Latin denoting“elsewhere”. It is essentially a defence predicatedupon the physical impossibility of a defendant’sguilt by p lacing the defendant in an entirelydifferent location other than the scene of the crimeat the relevant point in time. Alibi invariably

denotes the quality, state or condition of havingbeen elsewhere at the material time an offence wascommitted. In other words, alibi means the fact orstate of having been elsewhere when an offence wascommitted. It also means “I was not present whenwhat is complained about happened”. [Ayan v. State(2013) 15 NWLR (Pt. 1376) 34 referred to.] (Pp.271, paras. B-D; 289, para. C)

21.On Duty on prosecution where defence of alibi israised –

It is the duty of the prosecution to check on astatement of alibi by an accused person anddisprove or attempt to disprove same. Nevertheless,there is so far no particular inflexible or invariableway of disproving an alibi. If the prosecutionadduces cogent, sufficient evidence to fix a personat the scene of crime at the material time theoffence was committed, his alibi is thereby logicallyand physically crushed, thus rendering such aplea ineffective as a defence. The accused has anevidential burden of eliciting some evidence withall necessary particulars which can be checked toshow that he was somewhere else at the time theoffence charged was committed at the locus of thecrime. If the prosecution investigates the alibi andcalls some evidence in disproof of it, the court,not disregarding the defence of alibi, is entitled toconsider it from the backgrounds of other strongerevidence, if any, linking the accused person withthe crime charged. In the instant case, the defenceof alibi raised by the appellant was baseless and asheer after-thought. The appellant not only raisedthe purported alibi for the first time in court but hefailed to furnish the court with particulars thereof.[Njovens v. State (1973) 1 NMLR 331; Gachi v. State(1965) NMLR 333; Bello v. State (1956) SCNLR 113;R. v. Turner (1957) WRNLR 34; Nwabueze v. State(1988) 4 NWLR (Pt. 86) 16; Nwosisi v. State (1976) 6SC 109; Ndukwe v. State (2009) 7 NWLR (Pt. 1139)

43; Sani v. State (2015) 15 NWLR (Pt. 1483) 522;Adeyemi v. State (2018) 5 NWLR (Pt. 1613) 482;Kolade v. State (2017) 8 NWLR (Pt. 1566) 60; Ndidiv. State (2007) 13 NWLR (Pt. 1052) 633 referred to.](Pp. 271-272, paras. D-C; 292, paras. B-C)

Per PETER-ODILI, J.S.C. at page 289, paras. D-G:

“The appellant in raising his defence to thecommission of the offence and anchored onthe fact that he was a DJ and wrist watchrepairer and that in the year 2014 March,referring to the date of the commission of thecrime he was on his way to Bovina to playwhen the police arrested him for a crime inhis view he did not commit.

In raising the defence appellant was obligatedto meeting the legal requirements of sucha plea which entails that he had to furnishthe necessary particulars to the policewho would embark on the investigation ofeither confirming the alibi or debunking it.Therefore failure to make available thoseneeded details translated to be alibi in the firstplace was within his personal knowledge andthe details must be furnished at the earliestopportunity. See Sani v. The State (2015) 15NWLR (Pt. 1483) 522 at 546.

It is to be noted that the appellant raised hisdefence of alibi for the first time in court atthe point of his defence while testifying andso the court below was on firm footing to haveaffirmed the decision of the trial court on theissue. Clearly the fair hearing right of theappellant was not breached.”

22.On Power of appellate court to formulate issues fordetermination –

The Court of Appeal has a wide unfettereddiscretionary power to formulate its own issues inthe interest of justice, provided they relate to thegrounds of appeal and flow therefrom. In other

words, an appeal court can formulate its own issueswhere in its opinion, the issues formulated by theparties would not justify or equitably dispose offthe appeal before it. An appeal court can also withsame manner prefer or adopt the issue or issuesformulated by any of the parties to an appealwhere same would enable it do justice to the appeal.[Omoworare v. Omisore (2010) 3 NWLR (Pt.1180)58; Agbare v Mimra (2008) 2 NWLR (Pt. 1071) 378referred to.] (Pp. 288-289, paras. G-B)

Nigerian Cases Referred to in the Judgment:

Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203

Adeyemi v. State (2018) 5 NWLR (Pt. 1613) 482

Adigun v. A.-G., Oyo State (1987) 2 NWLR (Pt. 56) 197

Agbare v. Mimra (2008) 2 NWLR (Pt. 1071) 378

Alake v. State (1991) 7 NWLR (Pt. 205) 567

Awosika v. State (2010) 8 NWLR (Pt. 1198) 49

Ayan v. State (2013) 15 NWLR (Pt. 1376) 34

Ayub-Khan v. State (1991) 2 NWLR (Pt. 172) 127

Bakare v. State (1987) 1 NWLR (Pt. 52) 579

Bello v. State (1956) SCNLR 119

Billie v. State (2016) 15 NWLR (Pt. 1536) 363

Chukwu v. State (2007) 13 NWLR (Pt. 1052) 430

David v. C.O.P. (2019) 2 NWLR (Pt.1655) 178

Ede v. F.R.N. (2001) 1 NWLR (Pt. 695) 502

Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1

Eromosele v. F.R.N (2017) 1 NWLR (Pt. 1545) 55

Famakinwa v. State (2016) 11 NWLR (Pt.1524) 538

Gachi v. State (1965) NMLR 333

Gbadamosi v. State (1991) 6 NWLR (Pt. 196) 182

Ibrahim v. State (2015) 11 NWLR (Pt. 1469) 164

Idi v. State (2019) 15 NWLR (Pt. 1696) 448

Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501

Itu v. State (2016) 5 NWLR (Pt. 1506) 443

Jessica Trading Co. Ltd. v. Bendel Ins. Co. Ltd (1996) 10NWLR (Pt. 476) 1

Jiya v. State (2020) 13 NWLR (Pt. 1740) 159

John v. State (2019) 9 NWLR (Pt. 1676) 160

Kolade v. State (2017) 8 NWLR (Pt. 1566) 60

Lado v. State (1999) 9 NWLR (Pt. 619) 369

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Lawal v. State (1966) 1 All NLR 107

Maclean v. Inlaks Ltd. (1980) All NLR 184

Mbachu v. State (2018) 17 NWLR (Pt. 1649) 395

Momodu v. State (2008) All FWLR (Pt. 447) 67

Muhammed v. Kano N.A. (1968) SCNLR 558

Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633

Ndukwe v. State (2009) 7 NWLR (Pt. 1139) 43

Njovens v. State (1973) 1 NMLR 331

Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16

Nwosisi v. State (1976) 6 SC 109

Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17

Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74

Offorlete v. State (2000) 12 NWLR (Pt. 681) 415

Ogbomor v. State (1985) 1 NWLR (Pt. 2) 223

Okaroh v. State (1990) 1 NWLR (Pt. 125) 128

Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126

Okegbu v. State (1979) 11 SC 1

Omoshola v. C.O.P. (1977) 4 – 5 SC 26

Omoworare v. Omisore (2010) 3 NWLR (Pt.1180) 58

Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593

Oteki v. A.-G., Bendel State (1986) 2 NWLR (Pt. 24) 648

R. v. Turner (1957) WRNLR 34

Sani v. State (2015) 15 NWLR (Pt. 1483) 522

Shema v. F.R.N. (2018) 9 NWLR (Pt. 1624) 337

Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671

State v. Oladotun (2011) 10 NWLR (Pt. 1256) 542

State v. Salawu (2011) 18 NWLR (Pt. 1279) 580

Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326

Ugbala v. Okorie (1975) 12 SC 1

Ukpe v. State (2001) 18 WRN 84

Umar v. F.R.N. (2019) 3 NWLR (Pt. 1660) 549

Foreign Ca ses Referred to in the Judgment:

Franklin v. Lynaugh (1988) 487 USA 164

R. v. Cohen (1938) 3 All ER 380

R. v. E llis (1910) 2 KB 746

R. v. Gnango (2011) UKSC 59

Nigeria n Statutes Referred to in the Judgment:

Administration of Criminal Justice Law, Laws of Kwara State,Ss. 109, 196, 203(1) and 227

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Constitution of the Federal Republic of Nigeria, 1999 (asamended), S. 36(5)(6)

Criminal Procedure Code, S. 206

Evidence Act, Ss. 82(1)(2)(a)(b)(3), 138(1) and 180

Firearms Act, Cap. 146, Laws of the Federation of Nigeria,1990, S. 2

Penal Code, S. 97

Robbery and Firearms (Special Provisions) Act, Cap. R11,Laws of the Federation of Nigeria, 2004, Ss. 1(2), 3(1), 4, 5,6(a)(b)

Foreign Statutes Referred to in the Judgment:

Accessories and Abettors Act, 1861, as amended by theCriminal Law Act, 1977 of the United Kingdom, S. 8

United Nations International Protocol on Firearms

Books Referred to in the Judgment:

Aristotle (1.384 – 322 BCE)

Black’s Law Dictionary 11th Ed., 2019, Pp. 90, 291, 778

G.E.M. Anscombe: Modern Moral Philosophy, 1958

Nicomachean Ethics 11.6

Stanford Encyclopedia of Philosophy @ Wikipedia

Wikipedia

Appeal:

This was an appeal against the decision of the Court of Appealdismissing the appeal against the judgment of the High Court whichconvicted the appellant and sentenced him to death. The SupremeCourt, in a unanimous decision, dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Mary UkaegoPeter-Odili, J.S.C. (Presided); John Inyang Okoro,J.S.C.; Ibrahim Mohammed Musa Saulawa, J.S.C. (Readthe Leading Judgment); Adamu Jauro, J.S.C.; EmmanuelAkomaye Agim, J.S.C.

Appeal No.: SC.119C/2019

Date of Judgment: Friday, 4th June 2021

Names of Counsel: MT. Hannafi, Esq. – for the Appellant

Jimoh Adebimpe Mumini, Esq., DPP – for the Respondent

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Co urt of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Ilorin

Names of Justices that sat on the appeal: Chidi NwaomaUwa, J.C.A. (Presided and Read the Leading Judgment);Hamma Akawu Barka, J.C.A.; Boloukuromo MosesUgo, J.C.A.

Appeal No.: CA/IL/C.19/2017

Date of Judgment: Friday, 18th May 2018

Names of Counsel: Ibrahim Alabidun, Esq (with him,I.B. Mohammed, Esq) – for the Appellant

Funsho Lawal, Solicitor-General, Kwara State (with him,Abdullahi Yusuf, Assistant Chief State Counsel; M.J.Orine, Esq, Principal State Counsel, Ministry of Justice,Kwara State) – for the Respondent

High Court:

Name of the High Court: High Court of Kwara State,Ilorin

Name of the Judge: Folayan, J.

Suit No.: KWS/18C/2014

Date of Judgment: Friday, 30th September 2016

Names of Counsel: A.Y. Beki, Assistant Chief StateCounsel (with him, R.O. Yusuf Gbajumo [Mrs] andChinwe Ugoala) – for the State

R.A. Mustapha [Mrs] – for the 1 st , 2nd & 3 rd Accused

T.M. Onaolapo [Mrs] (with her, A. Afolayan [Mrs]) – forthe 4 th Accused Person

Counsel:

M. T. Hannafi, Esq. – for the Appellant

Jimoh Adebimpe Mumini, Esq. DPP – for the Respondent

SAULAWA, J.S.C. (Delivering the Leading Judgment): Thepresent appeal has emanated from the judgment of the Court ofAppeal, Ilorin Judicial Division, delivered on May 18, 2018 inappeal No. CA/IL/C.19/2017. By the judgment in question, thecourt below, Coram C. N. Uwa, K. A. Barka, and B. M. Ugo, JJCAaffirmed the conviction and sentence (to death) of the appellant bythe trial High Court of Kwara State.

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Dissatisfied with the said conviction and sentence passedthereupon, the appellant appealed to the court below. By the vexedjudgment thereof, the court below came to the following conclusion:

In the present appeal, there is nothing on record toshow that the appellant had a license to possess thegun he was found in possession of and I had held thatthe gun falls within the definition of “firearm” underthe Robbery and Firearms (Special Provisions) Act.The three ingredients stated above were established.Therefore, the conditions under the Act were met. Theappellant was rightly convicted for illegal possessionof firearms.

On the offence of armed robbery pursuant to section1(2) of the Act… All the three ingredients wereestablished by the prosecution at the trial court.

….

In sum, having resolved all the issues against theappellant, I hold that the appeal is without merit. Idismiss it. I affirm the conviction and sentence of theappellant by the trial court.

The appellant’s notice of appeal is predicated upon a total of 8

grounds, thereby urging this court to allow the appeal and set asidethe conviction and sentence passed thereupon by the trial court andaffirmed by the court below.

On February 11, when the appeal came up for hearing, thelearned counsel addressed the court and adopted the articulatedargument contained in their respective briefs, there by warrantingthis court to reserve judgment to today.

The appellant’s brief of argument, settled by M. I. Hanafi Esqon 29/05/2020, was actually deemed properly filed and served on24/09/2020. It spans a total of 40 pages. At page 5 thereof, fourissues have been couched:

Whether the Court of Appeal rightly affirmed theconviction of the appellant in view of the admission ofthe evidence tending to show the bad character of theappellant at the trial. (Distilled from ground 6 of the(i)grounds of appeal)

Was the Court of Appeal right when it affirmed the(ii)holding of the trial court that the prosecution proved

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the case of conspiracy and armed robbery beyondreasonable doubt having regard to the variance onthe date and the venue of the offence as contained inthe particulars of the offence and the date and venueproved at the trial. (Grounds 3, 4, 5 and 8)

Whether the Court of Appeal properly affirmed theconviction and sentence of the appellant for theoffence of illegal possession of firearm under section3(1) of the Robbery and Firearms (Special Provision)Act, 2004 when the prosecution did not prove that thepossession of the gun, exhibit 2, allegedly found on theappellant is prohibited under the provisions of sections3, 4 and 5 of the Firearms Act, Cap. 28, Laws of the(iii)Federation, 2004. (Ground 7)

Whether the Court of Appeal understood andconsidered the complaint raised in issue 1 before itand if not, whether the non-consideration of the issue(iv)occasioned a miscarriage of justice. (Grounds 1 and 2)

The issue No. 1 is argued at pages 5 – 11 of the said brief, to theeffect that from the evidence adduced at the trial, it is apparent thatthe trial court allowed the prosecution to ask the appellant undercross-examination tending to show the appellant was a hardenedcriminal, or given to armed robbery. It is submitted, that all thosepieces of evidence showing facts of other criminal offencescommitted by the appellant are irrelevant and inadmissible in law.See section 82 of the Evidence Act. Vivian Odogwu v. The State(2013) 14 NWLR (Pt. 1373) 74 @ 107 paragraphs E – G. The courtis urged to be so persuaded by that authority.

It is argued, that in the instant case nothing warranted thequestion of bad character of the appellant from the evidence-in-chief. The appellant never gave evidence of his own character, thusthe bad character thereof is not a fact in issue.

Further argued, that the evidence of bad character received atthe trial did influence the mind of the trial court, and occasioned amiscarriage of justice. Unfortunately, the conviction of the appellantwas affirmed by the court below, despite the grave miscarriage ofjustice evident on the record.

In the circumstances, the court is urged to so hold and set asidethe vexed judgment.

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The issue No. 2 is argued at pages 11-19 of the brief, to theeffect that the trial court observed the disparity between the dateand the venue contained in the particulars of the offence in relationto the date and venue proved at the trial. Nevertheless, the courtbelow affirmed the conviction of the appellant.

It is posited, that section 227 of the Administration of CriminalJustice Law, Laws of Kwara State, is designed to save the chargefrom non – material errors in the drafting of the charge, such aserror of duplicity, non-joinder, misjoinder, et al. However, the ruleis allegedly not meant to render the fundamental requirements ofa charge inoperative. See Ibrahim v. State (2015) 11 NWLR (Pt.1469) 164 et al.

Further posited, that in the instant case, the appellant wascharged for an entirely a different robbery other than the robbery hecould have been associated with. Thus, the court below was wrongin applying the ratios of the decisions relied upon to the presentcase, since the factual situations are entirely different and the casesare distinguishable from this case.

In the circumstances, the court is urged to so hold.

The issue No.3 is argued at pages 19 – 34 of the brief, therebyquestioning the propriety of convicting the appellant for the allegedillegal possession of firearms, contrary to section 3(1) of theRobbery and Firearms (Special Provisions) Act, 2004 (supra).

It is submitted, that from the definition of the offence of illegalpossession of Firearms under section 2 of the Firearms Act (supra),mere possession of firearms is not an offence. See Billie v. The State(2016) 15 NWLR (Pt. 1536) 363 @ 387 paragraph C.

It is argued, that from the provisions of sections 3, 4, and 5 of theFirearms Act (supra) and parts I, II and III of the Schedule thereto,the firearms mentioned therein are not ordinarily prohibited. Andpossession of any of them without a license would not constitute anoffence under the Firearms Act (supra).

Further argued, that the phrase “the Commissioner of Policemay by order”, in section 5 of the Act, the word “may” as couchedtherein is permissive or directory. It does not oblige or compel theCommissioner of Police to prohibit the firearms. Thus, until theCommissioner of Police so makes the order, the possession of suchfirearm is not an offence. See Jessica Trading Co. Ltd. v. BendelInsurance Co. Ltd. (1996) 10 NWLR (Pt. 476) 1; Abel Omoshola v.Commissioner of Police (1977) 4 & 5 SC 26; Momodu v. The State

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(2008) All FWLR (Pt. 447) 67 @ 116, paragraphs E – G; Okashetuv. The State (2016) 15 NWLR (Pt. 1534) 126 @ 303.

By the far-reaching argument at pages 26 – 34 (Paragraphs3.44 – 3.58) of the said brief thereof, the appellant has urged uponthis court to depart from, and overrule, the decisions thereof inBillie v. The State (2016) 15 NWLR (Pt. 1536) 363; The State v.Oladotun (2011) 10 NWLR (Pt. 1256) 542; Okashetu v. The State(2016) 15 NWLR (Pt. 1534) 126 @ 149 paragraph D.

It is posited, that this court has the necessary jurisdiction todepart from and overrule its previous decisions, though sparinglyand with great hesitation. See Tewogbade v. Obadina (1994) 4NWLR (Pt. 338) 326 @ 351 Paragraphs D – F; Odi v. Osafile (1985)1 NWLR (Pt. 1) 17; Shema v. F.R.N. (2018) 9 NWLR (Pt. 1624)337, et al.

Further posited, that despite the need to adhere to the principleof stare decisis, the court is urged not to perpetuate the error inOkashetu and other cases, otherwise miscarriage of justice inherenttherein would continue to rule in subsequent cases. See Mrs.Bucknor Maclean v. Inlaks Ltd. (1980) All NLR 184, Per Idigbe,JSC @ 198. The court is urged to so hold.

The issue No 4 is canvassed at pages 34 – 38 of the brief. Itis submitted in the main, that from the excerpt of the judgment(at page 127 of the record), regrettably, the court below failed torealise the basis of the appellant’s complaint and treated same as adefence of alibi, which it found belated. This led to a miscarriage ofjustice. See Lado v. The State (1999) 9 NWLR (Pt. 619) 369 @383Paragraph F. Oforlete v. The State (2000) 12 NWLR (Pt. 681) 415@ 429 paragraph H; et al.

Allegedly, the failure to consider the appellant’s defence is adenial of his constitutional right to fair hearing. See Ekiyor v. Bomor(1997) 9 NWLR (Pt. 519) 1; Muhammed v. Kano Native Authority(1968) 1 ALL NLR 424 @ 428 – 429; Onagoruwa v. I.G.P. (1991)5 NWLR (Pt. 193) 593 @ 640, et al. The court is urged to so hold.

Conclusively, the court is urged upon to acquit and dischargethe appellant.

Contrariwise, the respondent’s brief, settled by JimohAdebimpe Mumini, Esq on 09/11/2020, spans a total of 18 pages.At page 2, the appellant’s four issues have been adopted.

On issue No.1, it is submitted in the main, that the appellant’scomplaint on the issue tantamount to a storm in a teacup. Further

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submitted, that the alleged wrongful admission of the exhibitDWC1 has not amounted to a miscarriage of justice in the peculiarcircumstances of this case. That there was no objection fromappellant’s counsel when the issue was raised at the trial. SeeLawal v. The State (1966) 1 All NLR 107 per Brett, JSC @ 110113; Okaroh v. The State (1990) LPELR-2423; (1990) 1 NWLR(Pt. 125) 128.

In the circumstance, the court is urged to resolve the issueNo.1 in favour of the respondent.

The issue No.2 is argued at pages 5 – 7 of the said brief, tothe effect that the grouse of the appellant on the issue was what hedeserved as a conflict between the offence charged and the offenceproved, and variation in dates and venue of the robbery as containedon the charge sheet.

It was submitted, that the variation in dates and place of therobbery cannot be regarded as fundamental, particularly when thereis nothing on record to show that the appellant was misled nor hasthat omission occasioned a miscarriage justice. Thus contended,that the conclusion thereby reached on the issue at pages 293-294 ofthe record is in tandem with the law, and ought not to be disturbed.

In the circumstance, the court is urged to so hold, and resolvethe issue No.2 in favour of the respondent.

The issue No. 3 is argued at pages 7-9 of the said brief, to theeffect that the court below was right to have affirmed the judgmentof the trial court on illegal procession of firearms, contrary tosection 3(1) of the Robbery and Firearms (Special Provisions) Act,Cap. R11, Laws of the Federation of Nigeria, 2004.

It is argued, that a firearm, albeit a locally made gun or anyother gun, must be capable of firing ammunition. See Jiya v. TheState (2020) 13 NWLR (Pt. 1740) 159 @ 205 paragraphs E-F.

Further argued, that the invitation by the appellant for the courtto revisit its earlier decisions in Billie v. The State (supra); The Statev. Oladotun (supra); and Okashetu v. The State (supra), is uncalledfor, in view of the clear provision of section 2 of the Firearms Act,Cap. 146, Laws of the Federation, 1990.

The court is urged to so hold and resolve the issue 3 in favourof the respondent.

Lastly but not the least, the issue No.4 was argued at pages10-12 of the brief, to the effect that the court has a wide unfettered

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discretionary power to formulate its own issues in the interest ofjustice. Provided, however, that those issues relate to the groundsof appeal and flow there from. See Omoworare v. Omisore (2010) 3NWLR (Pt. 1180) 58 @ 80; Agbare v. Mimra (2008) 2 NWLR (Pt.1071) 378.

Allegedly, in the instant case, the appellant not only raised thedefence of alibi for the first time in court, he refused to furnish thecourt with particulars of the alibi so raised for the first time beforethe trial court. Thus, the court below was on a firm footing to haveaffirmed the decision of the trial court.

In the circumstances, the court is urged to resolve the issueNo.4 in favour of the respondent.

The reply brief thereof, filed on 17/1/2020 by the appellantspans a total of seven pages. The submission of the learnedcounsel is in the main to the conclusive effect, that the receptionof the evidence of bad character is prejudicial and thereby led tomiscarriage of justice. See Lawal v. The State (1966) 1 All NLR107 @ 110; R. v. Cohen (1938) 3 All ER 380 @ 381; R. v. Ellis(1910) 2 KB 746 @ 763, et al.

The court is urged upon to so hold, that the prosecution havingasserted that the gun (found in the possession of the appellant) wasa locally made gun, must of necessity show that it falls into thecategory of firearms that cannot be possessed without permissionor licence.

Having critically, albeit dispassionately, considered thecomplex nature of the instant appeal, the far reaching submissions ofthe learned counsel contained in the respective briefs thereof, I amamenable to adopting the appellant’s four issues for determinationof the appeal anon.

Issue No. 1

The first issue, as copiously alluded heretofore, raises the verycrucial question of whether or not the court below was right whenit affirmed the conviction of the appellant in view of the admissionof the evidence tending to show the appellant’s bad character atthe trial. The first issue is distilled from ground 6 of the notice ofappeal.

Instructively, the instant issue was raised as a fresh issueby the appellant, consequent upon the leave granted there to on19/06/2019.

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The said issue relates to the evidence of bad character allegedlyelicited from the appellant and the co-defendants thereof undercross-examination.

The present appellant was the 2nd defendant on record at thetrial in question. The appellant while responding to a question bythe prosecution under cross examination, had this to say (at page127, lines 7 – 18 of the record):

It is true I attended Ajiogo Primary School, Ketu,Lagos. I did not attended Orisegun High School, Ketu.I attended Immaculate High School Maryland Lagos.I am a native of Ilorin in Kwara State but I don’t knowmy Local Government. I lived all my life in Lagos. Iknow how to repair wrist watch, my father is a wristwatch repair. It is not true that I was sent to Ilorinto come and learn Arabic. My sister is still at Ilorin,her name is Fausa. I always go to Bovina Club everyFriday to play as a DJ., may be am an employee but Igo there only on Fridays. It is true I have never met thepolice who arrested me before the day I was arresteddemeanour noted.

I have never met the police who told me to sign before.It is not true that the gun was recovered from me. It istrue I have another case of armed robbery against mebefore another court.

Exhibit DWC1 (the charge sheet regarding another armedrobbery case No. KWS/7c/2014 was also tendered vide the 1stdefendant under cross-examination.

According to the appellant’s learned counsel, all those piecesof

evidence showing facts of other criminal offences committed bythe appellant are not relevant, and therefore inadmissible undersection 82 of the Evidence Act (supra).

The provisions of section 82 of the Evidence Act are to thefollowing effect:

“82(1) Except as provided in this section, evidence of the factthat a defendant is of bad character is inadmissible incriminal proceedings.

The fact that a defendant is of bad character is(2)admissible.

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when the bad character of the defendant is a(a)fact in issues or

when the defendant has given evidence of his(b)good character.

a defendant may be asked questions to show that heis of bad character in the circumstances mentioned in(3)paragraph of the proviso to section 180.

whenever evidence of bad character is admissible(4)evidence of previous conviction is also admissible.

Invariably, the noun “character” means the qualities thataggregate to make an individual human being distinctive fromothers, most especially in regard to morality and behaviour. In thecase of Franklin v. Lynaugh (1988) 487 USA 164, 174, 108 se 1

2320 @ 2327, the US Supreme Court aptly defined character asthe disposition, reputation, or collective traits of a person as theymight be gathered from close observation of that person’s patternof behaviour.

Thus, a ‘good character’ invariably denotes an individualperson’s tendency to engage in lawful and moral (virtuous)behaviours.

Contrariwise, the term ‘bad character’ denotes an individualperson’s propensity for, or tendency toward, unlawful or immoralbehaviour. See Black’s Law Dictionary, 11th edition (2019) @ 291.

Instructively, questions regarding moral (good) characterhave recently occupied a central place in philosophical discourses.The reason for this development is traceable to the resurgenceof publications on modern moral philosophy. Most particularly,in 1958 G.E.M. Anscombe published a seminal article “ModernMoral Philosophy”. It was postulated therein by Anscombe thatKantianism and utilitarianism, the two major traditions in WesternPhilosophy, perilously placed the foundation for morality inlegalistic notions such as duty and obligations:

To do ethics properly, Anscombe argued, one must startwith what is for human being to flourish or live well.That meant returning to some questions that mattereddeeply to the Ancient Greek moralist. These questionsfocused on the nature of “Virtue” … of how one becomesvirtuous … and of what relationships and institutionsmay be necessary to make becoming virtuous possible:

See Stanford Encyclopedia of Philosophy @ Wikipedia.

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Aristotle (1.384 – 322 BCE) defines good moral character:

Excellence (of character) then, is a state concernedwith choice, lying in a mean relative to us, this beingdetermined by reason and in the way in which the manof practical wisdom (Phronimos) would determine it.

Now it is a mean between two vices, that whichdepends on excess and that which depends on defect.

See Nicomachean Ethics 11.6; Stanford Encyclopedia ofPhilosophy, op cit.

In the instant case, apart from the evidence viva voce of theappellant, exhibit DWC1 was equally tendered by the prosecutionvide the 1st defendant under cross-examination. The said exhibitDWC1 was in regard to another criminal charge (KWS/7C/2014)against the appellant and co-accused persons facing armed robberyprosecution.

The position of the law is very much unequivocal on theissue. As copiously alluded heretofore, evidence of the fact that adefendant is of bad character is generally inadmissible in a criminalproceeding.

However, there are some exceptions to this general principle.The fact that a defendant is of bad character becomes admissible:

when the bad character of the defendant is a fact in(a)issue; or

when the defendant (unwittingly) has given evidence(b)of good character thereof.

A defendant may equally be asked questions to show that he is ofbad character in the circumstances mentioned in paragraph ofthe proviso to section 180 of the Evidence Act.

The hallmark of these exceptions is that whenever evidenceof bad character is admissible, evidence of previous convictionbecomes equally admissible. See section 82(2), & of theEvidence Act (supra); Odogwu v. The State (2013) LPELR-12212009 @ 33 – 34 paragraphs; (2013) 14 NWLR (Pt. 1373) 74;Ehukwu Alake v. The State (1991) 7 NWLR (Pt. 205) 567 @ 618Paragraphs E – F.

Most particularly, in the case of Odogwu v. The State (supra), itwas aptly held by this court, that the character of the appellant wasnot at all relevant or in issue. That what was in issue was whetheror not she killed the deceased person. And that the appellant had nottestified at the time the witnesses gave evidence and so she could

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not have made her character an issue in the trial, nor did she doso in her statements other than a denial of the charge. See section82 and of the Evidence Act. Per Ngwuta, JSC (of blessedmemory) @ 33 – 34 paragraphs B-B.

The law is equally well settled, that where inadmissibleevidence is admitted it behooves the trial court to expunge suchevidence from the record, and consider if there is any viableevidence upon which the charge could be sustained. In essence, thewrongful admission of an evidence ought not to totally affect thedecision of the court unless the use of such evidence has resulted inoccasioning a miscarriage of justice. See Ugbola v. Okorie (1975)12 SC 1; Okaroh v. The State (1990) LPELR 2423; (1990) 1 NWLR(Pt. 125) 128; Okegbu v. The State (1979) 11 SC 1.

In the instant case, there is no doubt that even if the evidenceallegedly given under cross examination by the appellant isexpunged from the record of proceedings, there would still beother pieces of veritable evidence to sustain the conviction of theappellant.

In the circumstance, the first issue ought to be and same ishereby resolved against the appellant.

Issue No. 2

The second issue raises the question of whether or not the courtbelow was right when it affirmed the holding of the trial court thatthe prosecution proved the case of conspiracy and armed robberybeyond reasonable doubt against the appellant, having regards tothe variance on the date and venue of the offence, as contained inthe particulars of the offence, date and venue proved at the trial.The second issue is distilled from grounds 3, 4, 5 and 8 of the noticeof appeal.

It is a fundamental principle of criminal law, that every personwho is charged with a criminal offence shall be presumed to beinnocent until he is duly proved guilty beyond reasonable doubt.See section 36 of the Constitution of the Federal Republic ofNigeria, 1999 (as amended). A fortiori, by virtue of section 138(1)of the Evidence Act, if the commission of an offence by a partyis directly in issue in any criminal or civil proceeding, it must beproved beyond reasonable doubt. See Chukwu v. The State (2007)13 NWLR (Pt. 1052) 430; Alake v. The State (1991) 7 NWLR(Pt.205) 567; Ukpe v. The State (2001)18 WRN 84; Ayub-Khan v.The State (1991) 2 NWLR (Pt. 172) 127 @ 144; Bakare v. The State

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(1987) 1 NWLR (Pt. 52) 579; Ede v. FRN (2000) 18 WRN (Pt. 13);(2001) 1 NWLR (Pt. 695) 502; Itu v. The State (2016) 5 NWLR (Pt.1506) 443 @ 465 et al.

By the combined effect of the provisions of section 36(5) ofthe 1999 Constitution (supra) and section 138 of the EvidenceAct (supra), the prosecution must prove its charge against theappellant beyond reasonable doubt. Otherwise, the appellant oughtto be acquitted and discharged.

It must be reiterated, that the heavy burden squarely placedupon the prosecution under section 36(5) of the 1999 Constitution(supra), and section 138(1) of the Evidence Act (supra), does notshift. It is as constant as the ‘Northern Star’, or to borrow thewords of the Court of Appeal “as constant as the June/July rains ofNigeria.” See Alake v. The State (1991) 7 NWLR (Pt. 205) 567 PerNiki Tobi, JCA (as the learned Lord then was) @ 591 paragraph Q.

In the case of Chukwu v. The State, the trite fundamentaldoctrine was aptly re-echoed:

In ensuring that the prosecution proves its case beyondreasonable doubt against an accused person, the trialcourt, nay the appellate court, is enjoined to ensure thatnothing is taken for granted. See Martins v. The State(1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphsE – F; Bakare v. The State (1987) 1 NWLR (Pt. 52)579; (1987) 3 SC at 33; Mbenu v. The State (1988) 3NWLR (Pt. 84) page 615 at 626 paragraphs C – D, inwhich the Supreme Court held emphatically, inter alia,that –

“Besides, this being a capital offence, the onus on theprosecution throughout is to establish the guilt of theaccused persons beyond all reasonable doubt thoughnot beyond any shadow of doubt. Per Nnamani, JSC(of remarkable memory).”

See Chukwu v. The State (2006) LPELR-77 (CA); (2007) 13 NWLR(Pt. 1052) 430, Per Saulawa, JCA (as he then was).

As alluded to above, the appellant was charged under sections6(a) and 1(2) of the Armed Robbery and Firearms (SpecialProvisions) Act, 2004:

“6. Any person who –

aids, counsels, abets or provides any personwith firearms for use to commit an offence(a)under sections 1, 2, 3 and 4 of this Act; or

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conspires with any person to commit such an(b)offence; or

supplies, procures or provides any person withfirearms for use to commit an offence undersection 1 or 2 of this Act, whether or not heis present when the offence is committed orattempted to be committed, shall be deemed tobe guilty of the offence as a principal offenderand shall be liable to be proceeded against and(c)punished accordingly under this Act.

1(1) Any person who commits the offence of robbery shallupon trial and conviction under this Act be sentencedto imprisonment for not less than 21 years.

(2)If –

any offender mentioned in sub section ofthis section is armed with any firearms or anyoffensive weapon or is in company with any(a)person so armed; or

at or immediately before or after the time of therobbery the said, wounds or uses any personalviolence to any person, the offender shall beliable upon conviction under this Act to be(b)sentence to death.

Under the provisions of section 6(a) of the Robbery and Firearms(Special Provisions) Act (supra), the prosecution (respondent)has the onus of proving beyond reasonable doubt the followingingredients:

the existence of an agreement between two or morepersons to do an illegal act or an act which is not illegal(i)by illegal means;

that the illegal act was done in furtherance of theagreement and that each of the defendants (accused)(ii)participated in the illegality.

See Abdullahi v. The State (2008) 17 NWLR (Pt. 1115) 203 @ 221Paragraph F; Gbadamosi v. The State (1991) 6 NWLR (Pt. 196)182; Awosika v. The State (2010) 8 NWLR (Pt. 1198) 49 @ 78.

In my considered view, section 6 of the Robbery and Firearms(Special Provisions) Act (supra) is virtually in pari materia withsection 8 of the Accessories and Abettors Act, 1861, as amended

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by the Criminal Law Act, 1977 of the United Kingdom, whichprovides:

“8. Whosoever shall aid, abet, counsel, or procure thecommission of any indictable offence, whether thesame be an offence of common law or by virtue of anyAct passed or to be passed, shall be liable to be tried,indicted, and punished as a principal offender.

In the case of R. v. Gnango Appeal No. (2011) UKSC 59,the Supreme Court aptly postulated on the fundamental doctrineof Parasitic Accessory Liability (which is akin to the principle ofCriminal Conspiracy):

The ingredients for parasitic accessory liability are thattwo parties participate in the commission of crime A andB in the course of committing it, D1 commits crime Bwhich D2 foresees that he might commit …

There is no reason in general why the parasitic accessoryliability principle cannot be applied where crime A isaffray and Crime B is murder. All that is required is proofof a common purpose to commit an affray which isshared by DI and D2 in the sense that they agreed tocommit the offence, and a murder committed by DI inthe course of the affray commission of which is foreseenas a possibility … All the members of the group whoforesee that he might use the knife to commit a murderwould also be liable for murder. The fact that they werealso guilty of an affray would be no bar to their liabilityfor murder.

See R. v. Gnango (2011) UKSC 59; (2011) LPELR – 17863 (UKSC),Per Lord Dyson @ 67 – 68 paragraphs F – E.

For a conviction for the charge of armed robbery to creditablybe sustained, the prosecution is equally required to prove beyondreasonable doubt the following ingredients:

(i)that there was a robbery or series of robberies;

(ii)that the robbery was armed robbery; and

that the defendant participated in the said armed(iii)robbery.

See The State v. Salawu (2011) 18 NWLR (Pt. 1279) 580; Ikpo v.The State (2016) 10 NWLR (Pt. 1521) 501 @ 519.

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In the instant case, the judgment of the trial court is containedat pages 138 – 160 of the record of appeal. The judgment of thecourt below is contained at pages 271 – 304 of the record of appeal.

With particular regard to the instant second issue, the findingof the court below is at pages 293 – 294 of the record.

It was aptly found by the court below (at pages 294 – 295of the record) in regard to the instant issue, that the appellant’sgrouse was not that the armed robbery for which he stood trial didnot take place at all, or that he was not involved therein. The onlyappellant’s grouse, was that the prosecution defectively claimed theincident took place at Saw Mill Garage Area instead of AwolowoRoad, Tanke Area, both in Ilorin. Likewise, the appellant raisedthe issue of the date on the charge sheet being different (15/03/14)from the date given in evidence by the prosecution witnesses. Ascopiously alluded to above, the court below conclusively stated:

Also, it is noted that the prosecution witnesses wereconsistent as to the incident having taken place on 5thMarch, 2014. There was no contradiction as to the dateof this incident amongst the prosecution witnesses.

I hold that the place of the incident being AwolowoRoad, Tanke Area, Ilorin as opposed to Saw MillGarage, where the appellant and his colleagues werearrested with the robbed car and other items and thedate given in evidence as opposed to the date on thecharge sheet are not enough reasons to absolve theappellant of the offences charged. I hold that therewas a nexus between the offences charged and theconviction of the appellant by the trial court.

In my considered view, the foregoing findings of the courtbelow are aptly cogent, unassailable and duly in league with theevidence on record. And I so hold.

In the circumstances, the second issue is hereby resolvedagainst the appellant.

Issue No. 3

The third issue raises the question of whether or not thecourt below properly evaluated the conviction and sentence of theappellant for the offence of illegal possession of firearms undersection 3 of the Robbery and Firearms (Special Provisions) Act.2004 (supra), when the prosecution did no prove that the possessionof the gun (exhibit 2) allegedly found on him was prohibited under

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sections 3, 4 and 5 of the Firearms Act, Cap. 28, Laws of theFederation, 2004. The third issue is distilled from ground 7 of thenotice of appeal.

The trial court at page 157 (lines 1 – 33) of the record, foundas a fact, to the following effect:

The gun and cartridges were tendered and admitted asexhibits 2 and 3.PW3 said was pointed on his head bythe 1st accused … PW3, said he was held at gun point,PW2 and PW5 said the accused in the stolen car fired agun at them, the gun was recovered (when their bodieswere searched) and it was tendered and admitted asexhibit 2.Section 2(2)(a) punishes an accused whothough not in possession of firearm but he is in thecompany of a person who is armed. Therefore, inthe case at hand, the fact that one of the accused wascarrying gun, one of them was carrying axe (exhibit 4)which is an offensive weapon, the 1st – 3rd accused areinvolved in the offence of armed robbery contrary tosection 1 of the Act.”

On the part thereof, in affirming the foregoing findings of thetrial court, the court below stated at page 303 (lines 8 – 14) of therecord:

In the present appeal, there is nothing on record toshow that the appellant had a license to possess the gunhe was found in possession of and I had held abovethat the gun falls within the definition of firearm underthe Robbery and Firearms (Special Provisions) Act.The three ingredients stated above were established,therefore the conditions of the Act were met. Theappellant was rightly convicted for illegal possessionof firearms.

Invariably, the term “fire arm” denotes a weapon that expels a

projectile (such as a bullet or pellets by the combination of gunpowder or other explosive). Also termed gun. See Black’s LawDictionary 11th edition 2019 @ 778.

Thus, by the foregoing definition, ‘a firearm’ is any kind ofgun specifically designed to be readily carried and used by a person.Historically, the first firearms originated in the 10th century China,when bamboo tubes containing gunpowder and pellet projectileswere mounted on spears to make the portable fire lance. This was

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operable by a single person, which was later used to good effect inthe SIEGE OF DE’AN in 1132:

Modern firearms can be described by their caliber (i.e.bore diameter). For pistols and rifles this is given inmillimeters or inches (eg. 7.62 mm or .38 in.), or inthe case of short guns by their gauge (eg. 12 ga and 20ga.) …

A firearm is a barreled ranged weapon that inflictsdamages on targets by launching one or moreprojectiles driven by rapidly expanding high pressuregas produced by exothermic combustion (deflagration)of chemical propellant, historically black powder, nowsmokeless powder.

According to the United Nations International Protocol on Firearms:

“Firearm” shall mean any portable barrelled weaponthat expels,’ is designed to expel or may be readilyconverted to expel a shot, bullet or projectile by theaction of an explosive, excluding antique firearms ortheir replicas. Antique firearms and their replicas shallbe defined in accordance with domestic law. “

Originally, the ‘Dane gun’ was a type of long-barrelled flintlockmusket imported into West Africa by Danish traders prior to themid-18th century. The dane guns were used extensively within theslave trade period as goods to trade as well as a means of acquiringnew slaves. In 1671, the Danish Africa Company was incorporated(formatly chartered by King Christian v on March 11, 1671):

In the 17th and 18th centuries, the company flourished from theNorth Atlantic triangular trade routes.

Slaves from the Gold Coast of Africa (Ghana) weretraded for molasses and rum in the west Indies …

Throughout the transatlantic slave trade, it is estimatedthat about 12.5 million Africans were taken captive and10.7 million of them were transported to the Americas.The Danish slave trade constituted about 1 percent ofthis trade, with “about 100,000 Africans embarked.”Denmark was reportedly the first European colonialempire to ban its slave, trade in 1792 although thiseffect until 1803, and illegal trading continued into thenineteenth century.

See Wikipedia.

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Thus, against the backdrop of the far-reaching postulations,any lingering doubt regarding whether or not a ‘Dane gun’ is indeedqualified to be regarded as a ‘firearm’ within the purview of the law,ought to have been evaporated.

Hence, in my considered view, the concurrent findings of thecourt below (at pages 303 lines 8 – 14 of the record), to the effectthat the trial court rightly convicted the appellant for the offenceof being in possession of firearms, are very much apt, cogent,unassailable, and duly supported by the evidence on record.

In the circumstances, the third issue ought to be, and same ishereby resolved against the appellant.

Issue No. 4

The forth issue raises the question of whether or not the courtbelow understood and considered the complaint raised in issue No.1 before it, and if not, whether the non-consideration of the issueoccasioned a miscarriage of justice. The fourth issue is distilledfrom grounds 1 and 2 of the notice of appeal.

The appellant’s grouse herein is primarily predicated upon theissue No.1 raised in the appeal before the court below, viz:

“Whether the trial court was right in convicting theappellant and in placing on him the burden to provehis innocence. (Grounds 2 and 9)”

The issue No. 1 in question was copiously alluded to at page273 of the record of appeal. The court below having extensivelyconsidered the said issue at pages 286 – 291 of the record, came tothe finding to the conclusive effect:

All the above pieces of evidence none constituteda serious plea of alibi with faces to warrant aninvestigation by the police. Even if indeed the appellantwas a DJ at Bovina Club and was on his way therewhen he was accosted by the policemen, it does notremove the possibility of the appellant having been ofthe scene of the crime at the time the alleged offenceswere committed … I hold that there were no facts toinvestigate. The appellant’s defence of alibi fails issueone is resolved against the appellant.

The evidence of the appellant (DW1) was copiously alluded toby the court below at page 287 (lines 8 – 15) of the record of appeal:

I am a DJ and clock and wrist watches repairer. In year2014, March, I wanted to go and play at Bovina Club

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along Yidi Road, Ilorin. I took an Okada (commercialmotor cycle). On our way, we were almost at BovinaClub when some policemen stopped us. I told thepolicemen that what was our offence because I wasgoing to Bovina to play.

I always go to Bovina Club every Friday to play asa DJ; may be am employee but I go there only onFridays.

The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. Itis essentially a defense predicated upon the physical impossibilityof a defendant’s guilt by placing the defendant in [an entirely]different location other than the scene of the crime at the relevantpoint in time.

Alibi invariably denotes the quality, state or condition of havingbeen elsewhere at the material time an offence was committed. SeeBlack’s Law Dictionary, 11th Edition, 2019 @ 90.

It has been settled in a plethora of veritable authorities by thiscourt, that it is the duty of the prosecution to check on a statementof alibi by an accused person and disprove or attempt to disprovesame. Nevertheless, there is so far no particular inflexible orinvariable way of disproving an alibi. If the prosecution adducescogent, sufficient evidence to fix a person at the scene of crime atthe material time the offence was committed, his alibi is therebylogically and physically crushed, thus rendering such a pleaineffective as a defence. See Patrick Njovens v. The State (1973)1 NMLR 331; Gachi v. The State (1965) NMLR 333; Bello v.The State (1959) WRNLR 124; R. v. Turner (1957) WRNLR 34;Nwabueze v. The State (1988) 7 SCNJ (Pt. 71) 248 @ 260; (1988)4 NWLR (Pt. 86) 16: Most interestingly, all these authorities werefollowed by this court in the latter case of Christian Nwosisi v. TheState (1976) 6 SC 109 and a plethora of other cases, to the extentthat the defence of alibi was ceased to be:

[T]he type of cheap panacea that it used to be in thehands of criminals. Now not only has the accused anevidential burden of eliciting some evidence with allnecessary particulars which can be checked to showthat she was somewhere else at the time the offencecharged was committed at the locus of the crimebut also, if the prosecution investigates the alibi andcall some evidence in disproof of it, the Judge not

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disregarding the defence of alibi, is yet entitled toconsider it from the backgrounds of other strongerevidence, if any linking the accused person with thecrime charged.

See Ndukwe v. The State (2009) LPELR-1979 (SC); (2009) 7NWLR (Pt. 1139) 43, Per Ogbuagu, JSC @ 49 – 50 paragraphsE – F.

Most ironically, in the instant case, there is no doubt that thedefence of alibi raised by the appellant is baseless and a sheer afterthought. The appellant not only raised the purported alibi for thefirst time in court, but he woefully failed to furnish the court withparticulars thereof. See Sani v. The State (2015) 15 NWLR (Pt.1483) 522 @ 546 Paragraphs E – G.

In the circumstances, the fourth issue is hereby equallyresolved against the appellant.

Hence, having effectively resolved all the four issues raisedby the appellant against him, there is no gainsaying the fact that theappeal grossly fails, and it is hereby dismissed by me.

Consequently, having dismissed the appeal, the judgment ofthe Court of Appeal Ilorin Judicial Division, delivered on May18, 2018 in appeal No. CA/IL/C/19/2017ought to be and same ishereby affirmed.

PETER-ODILI, J.S.C.: I agree with the judgment just deliveredby my learned brother, Ibrahim Mohammed Musa Saulawa, JSCand to register the support in the reasonings from which the decisionemanated, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal,Ilorin Division or court below or lower court, delivered on the 18thday of May, 2018. The appeal is sequel to the decision of the HighCourt of Kwara State delivered on the 30th of September, 2016 perFolayan J, which convicted and sentenced the appellant to deathfor the offences of conspiracy to section 97 of the Penal Code andsection 1 of the Robbery and Firearms (Special Provisions)Act 2004 respectively. The appellant was also convicted andsentenced to ten years imprisonment for illegal possession offirearms under section 3(1) of the Robbery and Firearms (SpecialProvisions) Act.

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The charge reads:

Count One:

That you Abdullahi Lanre, Mahmud Ridwan, IdowuMakanjuola, Tunde Sheu, on or about the 15/3/2014at Saw Mill Garage Area Ilorin, Kwara State withinthe jurisdiction of this honourable court, conspired tocommit an illegal act to wit: While armed with gun,robbed one Shittu Kamaldeen of one Kia Rio Salooncar with some other valuables – and you therebycommitted an offence contrary to section 97 of thePenal Code.

Count 2

That you Abdullahi Lanre, Mahmud Ridwan, IdowuMakanjuola, Tunde Sheu, Mustapha Wasiu, on orabout the 15/3/2014 at Saw Mill Garage Area IlorinKwara State within the jurisdiction of this HonourableCourt committed an illegal act to wit, unlawfulpossession of firearms and you thereby committed anoffence contrary to section 3(1) of the Robbery andFirearms (Special Provision) Act, Cap. R11, Laws ofthe Federation of Nigeria, 2004.

Count Three

That you Abdullahi Lanre, Mahmud Ridwan, IdowuMakanjuola, Tunde Sheu, on or about the 15/3/2014at Saw Mill Garage Area Ilorin, Kwara State withinthe jurisdiction of this honourable court committed anillegal act to wit: while armed with gun robbed oneShittu Kamaldeen of one Kia Rio Saloon car withsome other valuable and you thereby committed anoffence contrary to section 1(2) of the Robbery andFirearms (Special Provision) Act, Cap. R11, Laws ofthe Federation of Nigeria, 2004.

Count Four

That you Mustapha Wasiu, on or about 15/3/2014, atSaw Mill Garage Area Ilorin, Kwara State within thejurisdiction of this honourable court, committed anillegal act to wit: Receiving stolen property contraryto section 5 of the Robbery and Firearms (SpecialProvision) Act, Cap. R11, Laws of the Federation ofNigeria, 2004.

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The appellant who was the 2nd defendant at the trial High Courtis dissatisfied with the judgment of the Court of Appeal Coram:….hence by a notice of appeal filed on 18/07/2019 appealed to thishonourable court on eight grounds.

Facts:

The Case of the Prosecution:

The case of the prosecution is that on the 5th of March 2014,the appellant together with three other persons at about 11.30pmat Awolowo Road, Tanke junction, Ilorin, Kwara State flaggeddown their victim, one Kamaldeen Shittu with a touch light. Atthe material time, the said Kamaldeen Shittu was driving a KiaRio with registration number FFA 626 AA. Thinking that he wascoming across policemen on duty, Kamaldeen stopped the vehicle.As soon as he stopped the vehicle, one of the defendants pointed agun on his head and the other slapped him.

They requested for his car key which he surrendered to themat gun point. The complainant was sitting in the middle of the roadwhen some policemen on patrol saw him and enquired from himwhy he was on the road sitting at that time of the night. He toldthem the story of how his car was snatched from him by the gangof robbers. The policemen sent a radio message to their office andother officers on patrol were informed. Barely 45 minutes after theincident, some officers on patrol duty saw a Kia Rio at the Saw MillGarage packed with four men inside the vehicle. They accostedthem and in the course of which one of them pulled a trigger buthe was shot by one of the officers. The policemen arrested all ofthem and they were charged to the court. The appellant hereinwas initially charged as the 3rd defendant but ended up as the 2nddefendant upon the withdrawal of the charge against the initial 2nddefendant who was confirmed insane and unable to stand his trial.

The Case of the Appellant

According to the appellant he is a DJ at Bovita Hotels and awrist watch repairer. He was on an Okada (bike) going to Bovinahotels when he was arrested on the Okada (commercial motorbike).He was almost at the hotel when the police stopped them andasked them to come down. The police seized the bike and put theappellant in the police vehicle and drove him to the station. On thesecond day, the police asked if he had relation in Ilorin and he said,yes. They gave him his phone and asked him to call his relativesto come for his bail. On the arrival of his sister at the station, the

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police demanded for the sum of N100,000 and informed her thatif she refused to pay they would charge him to court. The sistercould not pay and hence the charge. In effect the appellant deniedknowing anything about the robbery incident and relied on a caseof extortion against the police.

The Hearing

The prosecution called five witnesses and tendered severalexhibits including a locally made gun allegedly used by theappellant and his co-accused. The gun was admitted as an exhibit 2.

The appellant testified on behalf of himself but did not call anyother witness.

On the 11th day of March 2021, date of hearing, learned counselfor the appellant M. I. Hanafi, Esq adopted the brief of argumentfiled on 29/5/2020 and deemed filed on 24/9/2020 and a reply brieffiled on 17/11/2020. He distilled four issues for determinationwhich are thus:-

Whether the Court of Appeal rightly affirmed theconviction of the appellant in view of the admission ofthe evidence tending to show the bad character of theappellant at the trial. (Distilled from ground 6 of the(i)grounds of appeal)

Was the Court of Appeal right when it affirmed theholding of the trial court that the prosecution provedthe case of conspiracy and armed robbery beyondreasonable doubt having – regards to the variance onthe date and the venue of the offence as contained inthe particulars of the offence and the date and venue(ii)proved at the trial. (Grounds 3, 4, 5 and 8)

Whether the Court of Appeal properly affirmed theconviction and sentence of the appellant for theoffence of illegal possession of firearms under section3(1) of the Robbery and Firearms (Special Provisions)Act, 2004, when the prosecution did not prove that thepossession of the gun, exhibit 2, allegedly found on theappellant is prohibited under the provisions of sections3, 4 and 5 of the Firearms Act, Cap. 28, Laws of the(iii)Federation of Nigeria, 2004. (Ground 7)

Whether the Court of Appeal understood and(iv)considered the complaint raised in issue 1 before it

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and if not, whether the non-consideration of the issueoccasioned a miscarriage of justice. (Grounds 1 and 2)

The learned Director of Public Prosecutions, Kwara State (DPP)for the respondent adopted the brief of argument filed on 9/11/2020and he adopted the issue donated by the appellant.

Issue One

Whether the Court of Appeal rightly affirmed theconviction of the appellant in view of the admission ofthe evidence tending to show the bad character of theappellant at the trial.

Canvassing the position of the appellant, learned counselsubmitted that the prosecution subjecting the appellant to answerquestions during cross-examination tending to show that theappellant is a hardened and habitual criminal or given to acts ofarmed robbery which were irrelevant and inadmissible in lawunder section 82 of the Evidence Act. That those pieces of evidenceinfluenced the learned trial judge as he relied on them and thedecision thereby reached ought to have been set aside by the courtbelow hence the Supreme Court should right the wrong. He citedVivian Odogwu v. The State (2013) 14 NWLR (Pt. 1373) 74 at 107etc.

For the respondent, the learned DPP contended that assumingwithout conceding that the learned trial judge admitted inadmissibleevidence in the form of exhibit DWC1, the question is whetherthe admission occasioned a miscarriage of justice in the peculiarcircumstances of this case which is in the negative. He relied onUgbola v. Fashawe (2005) LPELR-3057 (SC), reported as Shittu v.Fashawe (2005) 14 NWLR (Pt. 946) 671.

That exhibit DWC1 and the questions relating to the fact thatappellant and his cohorts were standing trial in other courts forthe issue by the conduct of the appellant himself contrary to theposition now point up by the appellant. That appellant’s counselhad told the court that, appellant who, was on bail was not presenton the particular day proceeding because he had been arrested andin custody in respect of another offence.

Learned counsel for the respondent submitted that there wasno objection from appellant’s counsel when those questions wereasked and the answers rendered at the trial court. He cited Lawal v.The State (1966) 1 All NLR 107 at 110 – 113.

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That even if the said inadmissible evidence was expunged,there is a lot of evidence upon which the conviction would besupported and there was no miscarriage of justice. He cited Okarohv. The State (1990) LPELR-2422; (1990) 1 NWLR (Pt. 125) 128.

The grouse of the appellant herein has to do with whetherthe evidence of bad character elicited from the appellant and hisco-defendant during their cross-examination is permissible andadmissible in evidence and if it was not fatal to the case of theprosecution. The response at the base of this issue is thus:-

“It is true I was arrested for another case of armedrobbery apart from this one. It is true that two of thepeople that we are standing trial before this courtare also co-accused with me in that other case, butthat case stems out of this case. I don’t know the 2ndaccused before 3rd accused not my friend and I havenever seen the face before. It is true 2nd and 3rd accusedare co-accused with me in the other case but I don’tknow their names”.

The appellant was the 2nd accused at the trial court.

In response to another question, the appellant answered thus:

“I have never met the police who told me to signbefore. It is not true that gun was recovered from me.It is true I have another case of armed robbery againstme before another court”.

The prosecution, also tendered through the 1st defendant, exhibitDWC1 which is the charge sheet in another case No. KWS/7C/2014where appellant and others were charged for another robberyincident. This, the appellant contends prejudiced him and thereforefatal to the prosecution’s case and the court below should have setaside the conviction of the appellant.

The respondent disagreeing with that view of the appellantcontends that the conviction upon the other evidence availablewould still have been secured without the evidence procured duringthe cross-examination of the appellant including the admission ofthe charge sheet, DWC1. That a miscarriage of justice had not takenplace on that admission.

In resolving this question, it has to be stated that the admissionof an inadmissible evidence simpliciter does not fatally affect acase without none. The inadmissible evidence has to be consideredin context that is to say that the appellate court would take a look at

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it to see if indeed it is inadmissible and if it is what would happento the rest of the case were it to be expunged. That is if there isany remaining legal evidence to sustain the charge or the claimbefore the trial court, this is in consonance with the principlethat the wrongful admission of evidence shall not necessarily ortotally affect the decision of the court unless the use of the allegedevidence occasioned a miscarriage of justice. See Ugbola v. Okorie(1975) 12 SC 1 at 22 per Musdapher JSC (as he then was); Shittuv. Fashawe (2005) LPELR-3057 (SC); (2005) 14 NWLR (Pt. 946)671.

In this case at hand, it has to be said that exhibit DWC1 and thequestion relating to the fact that the appellant and his cohort werestanding trial in another court for the same offence did not comeout of the blues as it was in the conduct of the appellant himselfthat brought that into the arena. From the record before the day onwhich the proceedings leading to the vexed cross-examination tookplace, the appellant had been absent in court as he was on bail andthe excuse given by the counsel for the absence on that 20th dayof October, 2015 was that “he has been arrested and in custody inrespect of another offence”.

I agree with learned counsel for the respondent that whenthe question under cross-examination was put to the appellant, hiscounsel put up no objection. That on its own does not translate toan inadmissible evidence being made …

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