KUMAI BAYANG AKA'AHS, J.S.C. (Delivering the Leading Judgment): The appellant and his co-accused were tried for conspiracy to commit armed robbery and armed robbery and they were sentenced to death for the said offences by the Ogun State High Court. They appealed against their conviction and sentence to the Court of Appeal, Ibadan. The Court held that the prosecution proved the first ingredient of the offence namely that there was a robbery. In considering the second ingredient whether the robbery was armed robbery the Court said at page 198: -
"As has thus been seen the use of cutlass and axe permeates the evidence not only of PW2 and PW3 but also the confessional statement of 1st appellant. I think that it will be right to say that whoever the robbers were, they were armed".
Despite this finding the Court finally held that since the prosecution failed to tender the cutlass and the axe which were allegedly used in the armed robbery operation and no explanation was supplied for the fail…