Akeem Afolahan V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Osogbo High Court in Charge No. HOS/7C/2000 delivered on the 12th day of December 2002 in which the learned trial judge convicted and sentenced the appellant to death on a two count charge of conspiracy to commit felony to wit armed robbery and armed robbery contrary to Section 5(b), 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII, Laws of the Federation of Nigeria, 1990.

Dissatisfied with the judgment, the appellant has appealed to this court on eight grounds of appeal as contained in his notice of appeal filed on the 23rd day of December 2002.

The facts briefly stated are that the appellant and others at large on the 21st day of December, 1999, robbed one Alhaja Sariyu Aladorin of the sum of N140,000.00 under gun point. The story is that the Alhaja, a trader who had testified as PW1 was praying in her house when she heard her friend’s daughter one Kemi knocking outside the gate of her house. She instructed her daughter to open the gate for her. As soon as the gate was opened, some men entered the compound, came to her room beat her up mercilessly and made away with the sum of N140,000.00. They also removed her bank cheque books. The appellant was apprehended outside the gate of the house by Alhaja’s night guard but he managed to escape from him and was re – arrested. He claimed to be a commercial motorcyclist and that he was hired by somebody to bring him to the area but when the area was checked no motorcycle was found.

During investigation, the police discovered that a vehicle had been snatched by the assailants and when the vehicle was recovered, Alhaja’s cheque books were found in the car. When interrogated by the police, the appellant volunteered statements exhibits P3, P4 and Q which were alleged to be confessional statements. In his defence the appellant denied participating in the robbery. He claimed he took somebody to the area as a commercial motorcyclist and that he was arrested at the scene when he had misunderstanding with the passenger as to the amount of fare he should pay.

In proof of their case the prosecution called five witnesses. The appellant denied making exhibit Q voluntarily. A trial within a trial was conducted, after which the trial judge ruled the alleged confession voluntary. The appellant gave evidence in his own defence and called one witness, his mother. Learned Counsel for the parties addressed the court. In a considered judgment, the learned trial judge found the appellant guilty of the offences charged and convicted him accordingly.

On the 5th day of March 2012 when the appeal came up for hearing, appellant’s counsel was not in court but hearing notice was duly served on him on 15/2/12. Appellant’s brief dated 17/15/07 and filed on 1/5/07 but deemed properly filed on 20/9/07 was deemed duly adopted and argued. Learned counsel for the respondent, Biodun Badiora Esq. Principal State Counsel Ministry of Justice Osun State adopted and relied on their brief dated 15/2/10 and filed on 29/3/10 as their argument and submissions in the appeal and urged us to dismiss the appeal and affirm the judgment of the trial court.

In the appellant’s brief of argument, four issues were formulated for determination. They read as follows:

(1) Whether the learned trial judge was right in admitting Exhibit “Q” as a voluntary confessional statement and acting on it to convict the appellant having regard to the evidence adduced in the trial conducted to determine the admissibility of the statement – exhibit “Q”.

(2) Whether the trial judge was right in holding that the Prosecution established the case of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt as mandatorily required in law having regard to the totality of the evidence before the trial court.

(3) Was the learned trial judge right in holding that the contradictions in the evidence of the prosecution witnesses were not so material as to warrant the evidence being treated as unreliable and the appellant being acquitted of the charges against him.

(4) Whether the learned trial judge was right by not holding that the prosecution acted in breach of the constitutional right of the appellant to fair hearing by withholding the evidence of Seun and Azeez Omoniyi who had been arrested in connection with the case and one of whom the appellant claimed he had carried to Kola Balogun Area of Osogbo on the date of the incident as a commercial motorcycle operator when their evidence would have positively assisted the case of the appellant to the effect that he knew nothing about the offences with which he had been charged.

The respondent adopted the issues formulated by the appellant but reordered the numbering. I shall adopt the numbering as set out by the respondent in determining this appeal. The issues as renumbered are:-

l. Whether the learned trial judge was right in admitting exhibit Q as a voluntary confessional statement.