Adebayo Ojo V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal emanates from the judgment of the Court of Appeal of Ekiti division (the lower Court or Court below) delivered on the 5th day of December, 2012 which heard and affirmed the decision of the High Court of Justice Ekiti State (the trial Court). The trial Court’s judgment was delivered on 18th May, 2005.

The facts giving rise to this appeal as shown by the record of appeal are simply that on 12th July,2003 the appellant attacked the PW1 in front of her shop with a matchet and inflicted some injuries on her left hand. According to the PW1, when the appellant tried to strike the second blow on her, the mask he was wearing on his face fell off and she was thereby able to see and recognise the appellant even though it was at night, but the moonshine was then very bright.

The PW1, the victim also testified that she knew him since both of them attend the same church i.e the Redeemed

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Christian Church of God at Ogotun, Ekiti. She also testified that during the attack, the appellant robbed her of her bag containing N22,000 and some goods valued at N8,400. She said when attacked, she shouted for help and she was rescued and rushed to hospital for treatment.

The appellant was later arrested and when taken to police station he volunteered a confessional statement. The appellant happened to be a student of a Polytechnic in Ekiti State. The appellant was later arraigned before the trial Court on allegation of armed robbery, contrary to Section 1(1) of Robbery and Firearms (Special Provisions) Act Cap. 389 Laws of Federation of Nigeria 1990. When the charge was read and explained to the accused/appellant, he pleaded not guilty to the charge.

The Prosecution/Respondent called only one witness (PW1) the victim, to testify and closed its case. After the close of the case for the Prosecution, the accused now appellant testified on his own behalf as DW2 and called only one witness who happened to be his own mother, who had earlier testified as PW1 and he later closed his case for the defence. The learned trial judge Justice Omoleye J. (as she then was) in her considered judgment found against the accused/appellant and convicted the accused of committing the offence of armed

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robbery and sentenced him to death by hanging.

The accused/appellant obviously became dissatisfied with conviction and sentence hence he appealed to the Court below, although without success, as the latter affirmed the conviction and sentence passed on the appellant by the trial Court.

Miffed by the failure to succeed in his appeal to the Court below, the appellant further appealed to this Court.

As usual, briefs are also normally filed and exchanged by parties on appeal to this Court, hence in keeping with rule of practice, the parties filed and exchanged their respective briefs of argument. With leave of this Court however, the appellant amended his original brief of argument and thereby filed an Amended Appellant’s Brief on 24/11/2016 which was settled by Enewa (Mrs.) Rita Chris Garuba. In the said Amended Appellant’s Brief of argument, four issues were decoded for determination which are reproduced hereunder:-

1. Whether the hearing of the appeal on an incomplete record of appeal violated the right to fair hearing of the appellant, thereby led to a miscarriage of justice
2. Whether the failure of the lower Court to

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