Garba Mohammed V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment)

An Ogun State High Court sitting in Ijebu-Ode judicial division (the court below), convicted and sentenced the appellant to death for the offences of conspiracy to commit armed robbery and armed robbery contrary to sections 5(b) and 1(2) (b) respectively of the Robbery and Fire Arms (Special Provisions) Act (CAP 398) Laws of the Federation, 1990, as subsequently amended, prompting the present appeal.

Concisely, the appellant and two other persons posing as customers robbed two employees of Felico Filling Station, the PW1 and PW2, of N25, 000 belonging to their employer and a telephone handset belong to PW1 at the Felico Filling Station, Ibadan road, Ijebu-Ode. The appellant was subsequently arrested in connection with another offence of robbery where he confessed the robbery at the Felico Filling station. The court below believed the respondents case and convicted the appellant as charged.

In a notice of appeal filed on 22/12/06 and subsequently replaced with a fresh notice of appeal containing two grounds of appeal filed on 19/7/10 and deemed properly filed on 19/1/11, the appellant derived two issues for determination on the appeal in his brief of argument filed on 21/1/11 to wit –

“1. Whether the provisions of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the tribunals (certain consequential amendments etc) decree 1999 under which the appellant was tried, convicted and sentenced are not inconsistent with the provisions of section 36(6) the Constitution of the Federal Republic of Nigeria 1999 and therefore void.

2. Whether the learned trial judge was right in holding that the prosecution proved a case of armed robbery against the appellant when the prosecution failed completely to establish the identity of the appellant by any means known to law”

The appellants brief stressed on the first issue that section 1(2) (a) and (b) of the Robbery and Firearms Act (hereafter called CAP. 398) lacks the constitutional requirement of spelling out “in details the nature of the offence” stated in section 36(6) (a) of the Constitution of the Federal Republic of Nigeria 1999 as amended, (hereafter called the 1999 Constitution), unlike sections 401 and 402 of the Criminal Code, C38, Laws of the Federation of Nigeria, 2004 which defines in detail the nature of the offence of robbery, not the particulars of the offence as defined by Oxford Advanced Dictionary and explained in Obumselu V. Commissioner of Police (1958) 3 F.S.C 40 to mean the nature of the offence, therefore the clear and unambiguous words of the constitutional provision and the said provisions of CAP. 398 literally and grammatically construed without interpolation or gloss exposes the inconsistency and conflict of the said provisions of CAP. 398 and the relevant constitutional provision rendering the former null and void under section 1(3) of the 1999 Constitution read together with the cases of B.M Ltd. v. Woermann – Line (2009)13 NWLR (Pt. 1157)149, KSIEC v. P.D.P. (2005) 6 NWLR (Pt.920) 25, Moghalu v. Ngige (2005) 4 NWLR (pt.914)9 S.C 51; consequently the charge under which the appellant was convicted is bad and his conviction quashed with an order for his acquittal as there was no valid identification of the appellant as the culprit, his conviction having been based on identification in the dock.

The appellant’s brief contended on the second issue that by convicting the appellant as charged, the court below breached section 36 (5) of the 1999 constitution and section 138 (1) and (2) of the evidence on the presumption of innocence of an accused and of proof beyond reasonable doubt of a criminal offence respectively taken together with the cases of Daniels v. State (1991) 8 NWLR (pt. 212) 715 at 732, The State v. Osbubunjo (2001)1 SCNJ 102, Idemudia v. State (1999) 7 NWLR (pt 610) 202 at 215, Esangbedo v. State (1989) 4 NWLR (pt. 113) 57 Nwosu v. State (1998) 8 NWLR (pt.562) 433 at 444, Aigbagbon v. State (2000) 7 NWLR (pt. 666) 686 at 704, Alabi v. State (1993) 7 NWLR (pt.307) 511 at 523. Bozin v. State (1985)2 NWLR (pt.8) 465 at 469; because the respondent did not establish the identity of the appellant as the armed robber vide Eyisi v. State (2000) 15 NWLR (pt. 691) 555 at 587-588, Okeke v. State (1995) 4 NWLR (pt.392) 676 at 708-709, Alabi (supra) at 524, therefore, the identification of the appellant by the respondent’s witnesses for the first time while he was in the dock was a sham as it was not positive and the PW1 had shown in his evidence given on 1/3/2005 after the alleged offence was committed on 25/8/2003, an interval of over two years, that he was unsure of the identity of the armed robbers vide his evidence at pages 23-25 of the record, that the evidence of the PW2 and the PW3 did not also solve the problem of the identification of the appellant as the culprit; and that the offences could not therefore have been proved by the alleged confessional statement vide Aigbagbon v. State (supra), consequently the appeal should be allowed.

The respondent’s brief dated 24/10/17 and filed on 25/10/11 but deemed properly filed on 2/11/11 highlighted an issue for determination at page 4 therefore thus-

“Whether the prosecution proved beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery against the Appellant with respect to the robbery incident at Felico Filling station Ibadan road Ijebu-Ode having regard to the evidence before the Honourable trial court.”

The respondent argued that the appellant conceded in his brief that there was an armed robbery but that the appellant was not one of the robbers, so on the authority of Bozin v. State (1985)2 NWLR (pt.8) 465 the respondent was obliged only to prove and did prove that the appellant committed the offences charged via the positive identification of the appellant by the corroborative evidence of the PW1 and PW2 coupled with the confession in Exhibits A and D vide the cases of State v. Aibangbee (1988) 5 NWLR 548 Eyisi v. State (2004) 4 NSCPR 60 at 100, Alarape v. State (2001) 1 NWLR (pt. 705) 79 at 98-99, R.V. Sykes (citation not supplied), Uche v. State (2007) 5 NWLR (pt. 1027) 214 at 201(?) Dagaya v. State (2006) 2 SCM 33 at 67, Idowu v. State (1985) 5 NWLR (pt. 43) 515, therefore the court should not tamper with the findings of fact ably made by the court below that saw and heard the witnesses vide Egesimba v. Onuzurike (2002) 15 NWLR (pt. 791) 466 at 536.

The respondent’s brief argued further that section 15 of CAP. 398 complementing section 1(1) and 2(a) thereof defined the offences of robbery similar to section 401 of the Criminal Code (supra) is not in conflict or inconsistent with section 36(6) of the 1999 Constitution and did not affect the validity of the charge which contained the details and essentials of the offences and was read to the appellant upon his arraignment under section 36(6) of the 1999 Constitution and the appellant understood same before his plea was taken thereto under section 275 of the Criminal Procedure Law CAP. 30 Laws of Ogun State, 1978, in the presence of his counsel, therefore it is too late for the appellant to raise objection to the charge on appeal after going through the entire trial that ended in his conviction and sentence, consequently the appeal should be dismissed.

In my respectful opinion, the issues for determination formulated by the appellant and the respondent encompass the two grounds of appeal and; I adopt the appellant’s issues for the resolution of the appeal.

One of the vital canons of the interpretation of statutes or written instruments is to give the plain words of the statute their literal or ordinary and grammatical meaning as rightly argued by Mr. Agbebi for the appellant vide the cases cited (supra) by the appellant.

Another equally vital canon of construing statutory and constitutional provisions is to read integrated or interrelated provisions together, not in isolation or by instalment -See A-G, Benue State v. Umar (2008) 1 NWLR (pt. 1068) 311. Dimegwu v. Ogunewe (2008) 17 NWLR (pt. 1116) 358. Chime v. Ude (1996) 7 NWLR (pt. 461) 379. The Registered Trustees ETC v. Medical Health Workers Union of Nigeria & Ors. (2008) 1 SCNJ 348 and Inajoku v. Adeleke (2007) 1. SCNJ 1.