Adebayo Ojo V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

The Appellant, a former student of Ondo State Polytechnic (now Rufus Giwa Polytechnic), Owo in Ondo State was charged and tried for the offence of armed robbery punishable under Section 1(2) of the Robbery and Firearms (special Provisions) Act Cap. 398 LFN 1990, as amended. He was alleged to have, at Ogotun, robbed one Yemi Omolade (F) in the night of 12th July, 2003 of the sum of N22,000.00 and a bag containing clothes, baby shoe and some drugs all valued at N8, 400.00.

At the time of the alleged robbery the Appellant was said to have been armed with a cutlass and to have infact inflicted cuts on the hand of the complainant, Yemi Omolade, who testified as PW1, with the said cutlass. The PW1 testified that the Appellant was initially masked and that when the mask fell off his face she was able to recognize him. The Appellant and the PW1, at the material time, were both members of one Church, that is: the Redeemed Christian Church of God, Ogotun. The Appellant and PW1 both affirm this fact. They knew each other very well.

In the considered judgment delivered on 18th May, 2005 the Appellant was convicted. He was on the same date sentenced to death for the offence of armed robbery. The appeal, on six (6) grounds of appeal, is against the conviction of the Appellant for the said armed robbery.

In the Appellant’s Brief of Argument, settled by Edmund Chinonye Obiagwu and filed on 20th February, 2012, the following three (3) issues were formulated for determination in this appeal by the Appellant, i.e –

1. Whether the arraignment of the Appellant and consequently the whole trial at the lower court was a nullity?
2. Whether the Learned trial judge was in error to have disbelieved and consequently rejected the defence put up by the Appellant based on Exhibit A1 and evidence of identification by PW1?
3. Whether the prosecution proved its case beyond reasonable doubt?.

The Respondent is of the opinion that Appellant’s issues 2 and 3 should have been collapsed and argued together under his issue 2. Consequently, in the Respondent’s Brief of Argument, settled jointly by A.O. Familoni, Esq and O.O. Akinlabi Esq, respectively the Director of Public Prosecutions and Senior Legal Officer, both of Ministry of Justice Ekiti State, two issues, herein below reproduced, were formulated for the determination of the appeal. They are:

1. Whether the entire trial was a nullity?
2. Whether the identity of the Appellant as a robber was established by the prosecution and thus proved the case beyond reasonable doubt against him?

I have dispassionately considered the issues formulated by both parties in appeal and taking into consideration the record of appeal and the material facts, I think the two issues formulated by the Respondents are more concise and apt.

They encapsulate the three issues formulated and argued by the Appellant.

Accordingly, I elect to adopt the two issues formulated by the Respondent in this appeal. I will come anon to the issues.

The appeal was first argued on 17th October, 2012. When later we discovered that the Record of Appeal appears to be incomplete, we invited the parties through their respective counsel, to endeavour to liaise with the registry of the trial court to settle additional record if they found it to be necessary. The appeal was relisted for that purpose, and for re-argument, if needs be, on 5th November, 2012. It was further adjourned to 8th November, 2012 for the parties, through their counsel, to get in touch with the Registrar of the trial court for the purpose of preparing additional Record in the appeal.

On 8th November, 2012 counsel for the parties and the Registrar (Records) of the Ekiti State High Court, Ado-Ekiti were before us. The Registrar (Records), one Pastor Abraham Nelson Daramola, intimated the court, in the presence of the counsel for the parties, that during the period of renovation of the High Court complex and also within the period of the prolonged strike of Judiciary Staff (JUSUN), termites had damaged some portions of the Record Book of the trial judge containing the minutes of the proceedings in this case at the trial court. At this juncture, Mr. Ezekiel Agunbiade of counsel holding the brief of Edmund Chinonye Obiaguru, Appellant’s counsel, urged us to determine the appeal “on the available record, as transmitted to this court”. He added that the Appellant’s Brief and the Respondent’s Brief were both written and filed “on the available record”. He adopted the Appellant’s Brief as their argument in the appeal and urged that the appeal be allowed.

Mr. A.O. Akinlabi, Learned Senior Legal Officer from the Ministry of Justice, adopted the stance of Mr. Agunbiade. He urged, on behalf of the Respondent, that “the appeal be heard and determined on the available record”. The Learned Senior Legal Officer then, adopted the Respondent’s Brief filed on 25th July, 2012, which was deemed filed and served on 17th October, 2012, as the Respondent’s argument in the appeal and thereafter urged that the appeal be dismissed for lacking in merits.

ISSUES FOR DETERMINATION

I had earlier indicated my preference for the two issues formulated in the Respondent’s Brief of Argument. The first issue in the appeal, whether as formulated by the Appellant or the Respondent, is whether the trial of the Appellant, from the manner his plea was taken at the commencement of the proceedings, was not a nullity.