James Gwangwan V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJIANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Ilorin Division Coram M. Abdul Gafar (J) delivered on the 18th day of August, 2008 in suit No. KWS/15C/2009.

The Appellant herein, along with five others were originally arraigned before the trial court on a two count charge as follows:

COUNT ONE

‘”That you Joshua John (m), Emmanuel Gabhabo (m), James Gwawan (m), Zakal Nyan (m), Kazeem Adewoye (m), Shina (m) (at large) on or about the 4th day of July, 2006 at about 2020hrs at a point along Amberi/Offa Road within the Jurisdiction of this Honourable Court conspired to commit a criminal offence, to wit; did have in your possession two life cartridges and a single barrel gun with intent to rob and you thereby committed an offence contrary to Section 97 of the Penal Code.

COUNT TWO

That you Joshua John (m) on or about the 4th day of July, 2006 at about 2020hrs at a point along Amberi/Offa Road within the Jurisdiction of this Court was found to be in illegal possession of two life cartridges and a single barrel gun and you thereby committed an offence punishable under Section 2(3) of the Robbery and Fire Arms Act.”

As can be gathered from the record of proceedings before the commencement of trial, the prosecution withdrew the charge against two of the accused persons who jumped bail and could not be found. The prosecution then proceeded with the arraignment of the Appellant and three others for the offences as contained in the counts enumerated supra.

The case proceeded to hearing with prosecution calling five witnesses and tendered one locally made gun, two life cartridges and statements of the accused persons which were admitted as exhibits before the court. This can be found on pages 44, 54, 56 and 60 of the record respectively.

Each of the accused persons including the Appellant testified for themselves. At the close of the case of the parties, written addresses were filed. However, before the adoption of the addresses, the prosecution sought to and was granted leave to amend the charge sheet following which the Appellant and the other co-accused were charged on five counts to which they all pleaded not guilty.

In a reserved judgment delivered on the 18th of July, 2008, the learned trial Judge convicted the Appellant along with others for the offence of criminal conspiracy to commit armed robbery contrary to Section 6 of the robbery and Fire Arms Special Provisions Act, 2004. He sentenced the Appellant along with others to 14 years imprisonment. Dissatisfied with the decision of the learned trial Judge, the Appellant expressed so by filing a Notice of Appeal which carries seven grounds as contained on pages 91 – 95 of the record. In compliance with the Rules of this Court, the parties duly filed and exchanged their respective briefs. The Appellant’s brief dated 17th day of March, 2010 and filed the same date was deemed properly filed and served on the 17th day of May, 2010, after an application for extension to file the said brief out of time was heard and granted. The Respondent’s brief was filed within time on the 16th of April, 2010. From the seven grounds of appeal, in a brief settled by Oluwakemi Balogun Esq., the learned counsel, distilled four issues for determination as follows:-

(i) Whether the trial Judge was right in not considering the defence of alibi raised by the Appellant which was not rebutted by the Respondent but instead convicted the Appellant of conspiracy? (Ground 4)

(ii) Whether from the circumstances of this case and totality of uncorroborated and contradictory evidence proffered by the Prosecution and affirmed by the Court; the trial Court was right in holding that the Respondent proved its case beyond reasonable doubt judging from the evidence adduced before it? (Grounds 1 and 5).

(iii) Whether or not the trial Judge was not in grave error to have relied heavily on Exhibits 3 and 4 the purported confessional statement of the Appellant which was denied and claimed to be signed under duress in convicting the accused? (Grounds 3, 6, 7 and 8).