Abu Isah & Anor V. The State (2007)

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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

The appellants as 2nd and 3rd accused persons were charged before the Kogi State High Court of Justice on a two count charge of conspiracy and armed robbery as follows:-

That you Monday Lawal, Abu Isah, Enesi Lukman Abdullahi, Abdulazeez Hassan, Hassan Suberu, and Mohammed Ismaila on or about the 9th and 11th of August 2001 at Paul Nzeni and Benneth Onwugbufors Residence Iruvucheba Okene in Okene Local Government Area within the Kogi State Judicial Division agreed to an illegal Act, to wit, you agreed to commit armed robbery at the premises of Paul Nzeni and Benneth Onwugbufors residence Iruvucheba Okene and that same act was done in pursuance of the agreement and that you thereby committed the offence of criminal conspiracy punishable under section 97(1) of the Penal Code.

That you, Monday lawal, Abu Isah, Enesi Lukman Abdullahi, Abdulazeez Hassan, Hassan Suberu, and Mohammed Ismaila on or about the 9th and 11th of August 2001 at Paul Nzeni and Benneth Onwugbufors Residence Iruvucheba Okene in Okene Local Government Area within the Kogi State Judicial Division while armed with guns, machetes and cutlasses attacked one Paul Nzeni and Benneth Onwugbufor and robbed Paul Nzeni of the sum of N52,000.00 in cash and Benneth Onwugbufor the sum of N68,000.00 and you thereby committed the offence of armed robbery punishable under section 298(c) of the Penal Code.

While the six accused persons were remanded in prison custody the 1st, 4th, 5th and 6th accused persons absconded during a jail-break, and could not be apprehended to stand trial for the two offences. The 2nd and 3rd accused persons henceforth to be referred to as appellants before this court were tried and convicted of the two count charges and sentenced to seven years imprisonment and a fine of N3, 000 for each of the two counts of charges.

In default of the fine each of the accused person shall serve a further term of one year in prison.

The sentences of imprisonment are to run concurrently.

Aggrieved by the conviction and sentence the two appellants appealed to this court. Each of the two accused persons filed a Notice of Appeal containing four grounds of Appeal. The appellants complied with the processes of appeal as stipulated in Order 4 of the Court of Appeal Rules 2002. At the time of the hearing of this appeal the two appellants relied on their appellants brief deemed filed on 5/7/05 and settled two issues for determination from grounds 1, 3 and 4 of the grounds of appeal while ground 2 was abandoned.

The two issues formulated for the determination of this court are as follows:-

(1) “On the evidence can it be said that the identity of the accused persons have been proved beyond reasonable doubt as to support the conviction for the respective offences alleged.

(2) Was the trial court right to have convicted the accused persons on the state of evidence.”

The Respondent in the brief deemed filed on 16/5/06 distilled one single issue for determination which reads:-

“Whether the prosecution has proved its case against the appellants beyond reasonable doubt to warrant the conviction of the appellants.”

The single issue formulated by the Respondent is wide and has obviously embraced issue one of the appellants’ two issues. However for ease of reference I shall adopt the issues raised by the appellants for the purpose of this appeal.