Akpodee Simon V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Akure presided over by Hon. Justice O. O. Akeredolu, delivered on the 13th July, 2007 (see pages 88 – 118) of the records of appeal.

The appellant was jointly charged before the High Court of Justice, Ondo State, Akure Division on a 2 count charge of conspiracy and robbery contrary to sections 6(b) and 2(b) of the Armed Robbery and Firearms (Special Provisions) Act Cap RII Vol. XIV Laws of the Federation of Nigeria respectively. The appellant and the other 2 accused persons pleaded not guilty to the charges. The prosecution in proof of their case called a total of three witnesses comprising of the complainant and two policemen.

The testimony of PW1 (the complainant) is contained on pages 94 – 96 of the records of appeal while pages 96-97 contain evidence of PW2 who was the investigating police constable at Ijapo police station and evidence of PW3 the Investigating Police Officer at the State CID Special Anti-Robbery Squad, is contained on pages 97-99 of the records of appeal.

The appellant gave evidence on his behalf as DW1. This evidence is contained on pages 69-74 of the records of appeal. The appellant and two other accused persons were found guilty and sentenced to death by hanging. The appellant being dissatisfied with the said judgment has appealed to this court.

The case of the prosecution was that the victim in this case, one Abu Fatai (PW1) rode a motorcycle for commercial purpose. On 2nd day of June, 2004 the appellant and the other 2 accused persons approached

PW1 for a commercial ride from one High School area to Olufoam area in Akure. On getting to their destination, they asked PW1 to park in a nearby bush where they alighted; they forcibly removed the motorcycles ignition key and one of the accused persons drew a cutlass on PW1 which made him retreat. The appellant and the other accused persons rode the motorcycle away. Immediately, PW1 ran to a nearby, ‘Quarter Guard’ where a policeman was detailed to follow him to the scene of crime. The motorcycle was traced and later found in a bush covered with leaves. The policeman took the motorcycle to the police station and later that day, one of the accused persons (1st accused) was apprehended. At the station, he mentioned the names of the other accused persons (including the appellant) with whom he robbed PW1. (See pages 15-17 of the records of appeal)

At the close of evidence from both sides and addresses by counsel, the learned trial judge in a judgment delivered on the 13th day of July, 2007 found the appellant and the other two accused persons guilty of conspiracy to commit armed robbery and convicted them to death by hanging. (see pages 117 – 118 of the records of appeal).

The appellant being dissatisfied with his conviction and sentence filed his Notice of Appeal on the 24th day of July, 2001, containing four (4) grounds of appeal. The parties filed and exchanged their respective briefs in this appeal. The appellant in his brief dated 10th April, 2012, but deemed properly filed on 12th July, 2012 formulated one issue below for determination:

“whether in view of the nature and quality of evidence adduced by the prosecution, the prosecution proved his case beyond reasonable doubt as to warrant the trial court to have convicted and sentenced the appellant to death by hanging for the offence of armed robbery. Grounds 1, 2, 3 and 4”

The respondent on their own part submitted the two issues below contained in their brief dated 9th day of October, 2012 but deemed properly filed on 30th October, 2012

i) whether there are material contradictions and doubts in the evidence of prosecution witnesses which can be resolved in favour of the accused person. (Grounds 3 & 4 of the appellants grounds of appeal)

ii) whether the prosecution had discharged its burden of “proof beyond reasonable doubt” in respect of this matter to warrant the conviction of the appellant by the trial court (Grounds 1 & 2 of the appellant’s grounds of appeal).

I have taken a cursory look at the issues formulated by the parties in this appeal and I wish to adopt the only issue as formulated by the appellant for being encompassing. Therefore, the issue for determination in this appeal is: