Adesina Kayode V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (OFR) (Delivering the Leading Judgment)

In the High Court of Justice Ijebu-Ode, Ogun State of Nigeria, the Appellant as 2nd accused along with two others were charged with the following offences –

COUNT 1

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT ARMED ROBBERY contrary to section 6(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Ad, (Cap R.11), Laws of the Federation 2004.

COUNT II

ARMED ROBERRY contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Laws of the Federation of Nigeria 2004.

The case for the prosecution was that on the 7th May 2007 at about 9.30p.m. one Osiyemi Niyi, Managing Director of FAO constant petroleum at Irese, Ijebu ode and who in the course of trial testified as PW1 had closed for the day at the Filling station. He took with him while driving away from the Filling station the sum of three hundred and fifty five thousand, one hundred and fifty naira which was the proceeds from the day’s sales. In his car with him, was a staff of his company, while on this journey, PW1 at some point saw a motorcycle with three men coming behind him. The Motorcycle overtook and blocked him on the road in front. The three men on the motorcycle came down, beat and injured him with a broken bottle and went away with the money he was carrying in the car as well as two mobile phones. His staff who was accompanying him in the car however managed to escape. A chase of PW1’s attackers by some sympathizers around proved abortive.

On return to the Filling Station, PW1’s brother by name Leke Osiyemi told PW1 that he saw the 1st accused person around the Filling station that day. The police arrested the 1st accused who upon arrest confessed to the crime and mentioned the name of the Appellant as having also taken part in the crime. The Appellant was arrested and also confessed to the crime. The Confession of the 1st accused also led to the arrest of yet another accused. All three were arraigned, tried, convicted and sentenced to death by the court’s judgment delivered on the 23rd December 2009. It is against this judgment that the 2nd accused now as Appellant is appealing. The Appellant’s Notice of Appeal is dated the 30th December 2009 and filed on the 18th January 2010. This Court granted the Appellant leave to amend the Notice of Appeal on the 29th September 2010 following an application on Notice dated the 23rd June 2010 and filed same day pursuant to Order 16 Rule 3 (3) of the then Court of Appeal Rules 2007 and the inherent jurisdiction of this court. The Amended Notice of Appeal deemed by this court to be properly filed and served on the Respondent on the 29th September 2010 is reproduced hereunder devoid of particulars –

GROUNDS OF APPEAL

1. That the decision of the High court is unreasonable and cannot be supported having regard to the evidence.
2. The learned trial Judge erred in law in admitting Exhibit “G” (the alleged Confessional Statement) in evidence and/or attaching any or much weight to the said Exhibit “G” and consequently convicting the Appellant based on the said Exhibit “G”.
3. The learned trial Judge erred in law by finding the Appellant guilty of the offence of Conspiracy to commit armed robbery.
4. The learned trial Judge erred in law in finding the Appellant guilty of Armed Robbery.

From the grounds of appeal contained in the Amended Notice of Appeal the Appellant has formulated the following issues for the determination by the Court of Appeal –

(i) Whether the trial court was right in admitting Exhibit “G” (the alleged Confessional Statement of the Appellant) in evidence and/or attaching any or much weight to the said Exhibit “G” and convicting the Appellant based on the said Exhibit “G”.

(ii) whether the Respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

These Issues are contained in paragraph 3.01 at pages 2 and 3 of the Appellants Brief of Argument dated the 28th October 2010 and filed 56me day, but however deemed by this Court to have been properly filed and served by the grant by this Court on the 27th January 2011 of an application on Notice dated the 28th October 2010 and filed same day by the Applicant pursuant to Order 7, Rule 10(1) of the then Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court for inter alia an order to enlarge time for the Appellant/Applicant who was out of time in filing his Brief of Argument to now do so and also to deem the Appellants Brief of Argument dated the 28th October 2010 and filed same day to be property fired and served on the Respondent. Following this court’s grant of the said application on Notice, the Appellants Brief of Argument dated the 28th October 2010 and filed same day was deemed properly filed and served on the Respondent on the 27th January 2011 being the day the said order of court was granted.