Oluwaseyi Sowemimo V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Lokulo-Sodipe J. (as he then was) of the High court of Ogun State holden at Abeokuta in Charge No.AB/9R/2001 THE STATE V. OLUWASEYI SOWEMIMO & ANOR delivered on the 28th March 2006 wherein the Appellant Oluwaseyi Sowemimo as 1st accused and one Oke Utuyorume were arraigned, tried, convicted and sentenced to death on a two count charge of conspiracy to commit the offence of armed robbery and armed robbery. The charge against the accused persons in the court below is as follows –

COUNT 1: That You Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th January 2001 at Abeokuta in Ogun State conspired to commit a felony to wit: Armed Robbery and there by committed an offence contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment etc) Decree 1999.

COUNT 2: That You Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January 2001 at Abeokuta in Ogun State, while armed with gun robbed one Omowunmi Bakare of the sum of N418,000.00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. Cap 398, Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendment etc) Decree 1999.

They pleaded, not guilty to the two count charge and the case went on to be tried in the course of which the prosecution called four (4) witnesses and tendered a number of exhibits. The Appellant as 1st accused called no witnesses and adduced no evidence of his own against the two count charge. At the end of addresses for the prosecution and the defence, the learned trial Judge in a considered judgment delivered on the 28th March 2006 herein before referred to found them guilty of the charges of conspiracy to commit armed robbery and armed robbery and accordingly sentenced them to death. It is this judgment that is the subject of this appeal by the convicted 1st accused turned Appellant Oluwaseyi Sowemimo.

The case for the prosecution in the court below was that on the 4th January 2001, the Appellant Oluwaseyi Sowemimo, one Oke Utuyorume and another (now at large) went to the Shop of one Omowunmi Bakare (PW1) who sold commodities at No. 33 Kuto Road pretending to be customers who wanted to purchase rice and as soon as they entered PW1’S shop they pulled out guns and demanded for money whereupon PW1 Omowunmi Bakare who owned the shop opened the drawer where she usually kept money and the accused persons made away with N418,00.00. When PW1 noticed that the Appellant Oluwaseyi Sowemimo and his two other companions were no longer in site, she raised an alarm which attracted sympathizers who gave chase and caught up with the Appellant and Oke Utuyorume while the third person fled. The Appellant and Oke Utuyorume were said to have been arrested at the back M.K.O. Abiola Stadium. A search of their persons was said to have resulted in the recovery of some of the money allegedly robbed from PW1’s shop, a toy pistol, spent cartridges and a locally made gun.

The Appellant and his partner were taken to Ibara police station first from where they were later transferred to SARS Adatan. Both the Appellant Oluwaseyi Sowemimo and his partner Oke Utuyorume were thereafter arraigned on a two count charge of conspiracy to commit armed robbery and armed robbery which they both denied committing. After a full trial in the court below, the Appellant and his companion Oke Utuyorume were found guilty on each of the two count charge and accordingly sentenced to death.

The convicted 1st accused Oluwaseyi Sowemimo simply now referred to as the Appellant has filed an appeal against his conviction and sentence by his Notice of Appeal dated the 26th April 2006 and filed on the 28th April 2006. It consists of four Grounds of Appeal. By his motion on Notice dated the 26th February 2009 and filed on the 3rd March 2009 and brought pursuant to section 243 of the Constitution of the Federal Republic of Nigeria 1999, Order 16 Rule 3(3) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court, Appellant sought for the following orders –

1. An Order granting leave to the Appellant/Applicant to a mend the grounds of appeal contained in the Appellant’s Notice of Appeal dated the 26th April 2006 set out in the proposed Amended Notice of Appeal annexed to the affidavit in support hereof as Exhibit “A”.
2. An Order deeming the Amended Notice of Appeal already filed and served as properly so filed and served.

The application came up for hearing and was granted on the 23rd April 2009. The effect of the grant by this Court of the application is that the Amended Notice of Appeal dated the 19th January 2009, filed on the 22nd January 2009 and deemed properly filed and served on the Respondent on the 23rd April 2009 supersedes the original Notice of Appeal filed by the Appellant and dated the 26th April 2006. The Amended Notice of Appeal id reproduced in its entirety below –

“IN THE COURT OF APPEAL

HOLDEN AT IBADAN

APPEAL NO.CA/I/252/06

SUIT NO. AB/9R/2001

BETWEEN