Abubakar Mohammed V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appellant was tried, convicted and sentenced to death by the High Court of Justice of Ogun State holden at Otta for the offences of conspiracy to commit armed robber and armed robbery contrary to sections 5 (b) and 1 (2) respectively of the Robbery and Firearms (special Provisions) Act 1990 (as amended) hence the appeal.

In a nutshell, appellant was tried along with other persons. The third person was discharged and acquitted. Appellant and the other person were said to have robbed sundry persons of various sums of money and assorted personal effects while armed with guns and a sharp knife on 15.2.1999. An alarm attracted people to the vicinity of the robbery contemporaneous with the robbery operation. The appellant and one Lateef Sadiku were sighted around the vicinity of the robbery incident carrying bags. They were arrested. The bags were searched. Some items belonging to the PW1-PW6 were recovered from the bags carried by appellant and his companion. Both of them were charged to court.

Appellant’s version was complete denial of involvement in the offence charged. He maintain in the court below that he trades in tomato, fruits or vegetable. That on the fateful day at about 5.40 a.m. he was on his way from the mosque after morning prayers. Some security men apprehended him. They beat him. They accused him of participating in the robbery operation that took place in the neighbourhood. That at the time of his apprehension he was carrying a nylon bag and a cap. Appellant was later taken in custody to the police station. There he saw the other accused persons for the first time. The police urged him to confess the crime. He maintained his innocence. The police went ahead to unilaterally write down a statement confessing commission of the crime. He denied on oath that he made the confessional statements in Exhibits 36 and 37.

The court below accepted respondent’s version of the incident and rejected the appellant’s case. It convicted him as charged.

An amended notice of appeal conveying nine grounds of appeal dated and filed 22.11.2010, by leave of court contested appellant’s conviction and sentence by the court below. In a robust brief of argument prepared by Mr. Chino Obiagwu of learned counsel to the appellant on 29.4.08 and filed or 15.5.08, but deemed duly filed on 23.11.2010, five issues were distilled for arguments on the appeal couched thus:

“(a) Whether the Attorney General of Ogun State can validly file information for the trial of the appellant for an offence under an Act of the National Assembly without first obtaining, and proving by evidence that same havebeen obtained, the fiat of the Attorney General of the Federation?

(b) Whether the trial court was right when the Appellant was made to plea together to all the six (6) counts on the information and whether such procedure was not an infringement of Section 215 of the Criminal Procedure Law of Ogun State 1978 and Section 36 (6) (a) of 1999 Constitution.

(c) Whether the identity of the Appellant has been established beyond reasonable doubt as person who participated in the robbery.

(d) Whether the prosecution has proved its case beyond reasonable doubt.

(e) Whether the learned trial judge properly Evaluated the evidence of the appellant, and if he did not, whether it occasioned a miscarriage of justice?”

The first issue for determination was tied to ground 1 of the appeal.

It was canvassed that the offences for which appellant was prosecuted are Federal offences prosecutable in the first instance by the Attorney-General of the Federation under Section 174 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) or by the Attorneys-General of the Federation acting under a fiat from the Attorney-General of the Federation which was not the case here contrary to the decisions in Amadi v. Federal Republic of Nigeria (2008) 2 NWLR (Pt.8) 483; The Queen v. Owoh and others (1962) ALL NLR (Pt.2) 659; consequently, the failure of respondent to prove in the court below by annexing the fiat given to the Attorney-General of Ogun State by the Attorney-General of the Federation to the proofs of evidence, the court below lacked the jurisdiction to try the appellant for a federal offence.

Ground 5 of the amended notice of appeal was linked to the second issue for determination. Submitting on the second issue, the appellant urged that the court below was wrong to take and record the plea of the appellant and the other accused persons together vide section 215 of the Criminal Procedure Law, 1978, of Ogun State read along with Section 36 (6) (a) of the 1999 Constitution and the cases of Josiah v. State (1985) 1 NWLR (pt. 1) 125 Kajubo v. State (1988) 1 NWLR (Pt. 73) 721, Tobby v. State (2001) 10 NWLR (pt. 720) 23, Duyal v. Commissioner of Police (1962) 2 ALL NLR 821 and Archbold on Criminal Pleading and Evidence Practice (2002 Edition) 4-98, favouring separate recording of p leas in criminal trials.