Alaba Olagunju V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Falola J. of the Osun State High Court sitting at Osogbo and delivered 29th September, 2010.

The appellant as 2nd accused, on a four count amended charge dated and filed 30th December, 2009, stood trial before the trial court alongside his co-accused for the offences of conspiracy and armed robbery contrary respectively to sections 6(b) and 1(1) and 2(a) of the Robbery and Firearms (Special Provision) Act. Cap. R11, Laws of the Federation of Nigeria, 2004.

In doing their case the prosecution called five witnesses and tendered exhibits marked A-A3, B, C1-C3, D, E, F, G, H and J respectively.

On the side of the defence, the appellant alone testified for it. At the close of hearing the learned trial Judge ordered counsel on both sides to file written addresses. In a considered judgment delivered 29th September, 2010, the appellant was found guilty on each of the four count charge and was convicted on all the counts and sentenced to death by hanging.

Being dissatisfied with the judgment the appellant has now appealed to this court vide Notice of Appeal dated 8th October, 2010 and filed 15th October, 2010 containing two grounds of appeal and from which he has formulated two issues for determination of the appeal. The issues are:

1) Whether the offences of conspiracy and armed robbery were proved against the appellant beyond reasonable doubt. (Ground 1)

2) Whether the finding of the learned trial Judge that the appellant was one of the persons who committed the offence of armed robbery was justified in law?

The learned counsel for the respondent submitted to the above issues as distilled by the appellant and thus the appeal shall be determined based on the foregoing issues.

In arguing issue (1) one, the learned counsel for the appellant submitted that by virtue of sections 6(b), 1(i) and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004, the prosecution was expected to establish the meeting of minds of the conspirators to commit the armed robbery complained of in this case. Relying on Abacha vs. State (2003) 3 ACLR 333 at page 389, para. 15, counsel argued that there is nothing in the evidence of all the five (5) prosecution witnesses nor in the exhibits tendered, to prove any agreement by the appellant and the 1st accused person to commit the offence charged herein. He said that the best evidence is usually obtained from one of the conspirators or from inferences. Counsel argued on that there is no evidence of conspiracy from the statements of both the 1st accused and the appellant and that both of them denied knowing each other until they met at the Police Station in respect of this case.

On the armed robbery aspect of the charge, the learned counsel for the appellant contended that contrary to the decision of the learned trial Judge, the prosecution failed to prove the offences of armed robbery against the appellant. That none of the prosecution witnesses or a combination of them was able to prove that there was a robbery or series of robberies. Counsel relied upon the authorities of Nwachukwu vs. The State (1985) 3 NWLR (pt. 11) C. A. 218 at 224 para. G; and Emenogor vs. The State (2010) All FWLR (pt.511) C. A. 884, 918 paras. A-B.

Further in his contention the counsel said that if the appellant was the offender and he was the one who made away with the day’s sales proceed of N83,790 and the sum of N60 (in N20 denomination) was found at the scene of the crime inside a grey coloured polythene bag i.e. Exhibit D on the following day but the N83, 790 was not found, then the reasonable inferences that could be drawn therefrom are:

a. It was either that the appellant was not the alleged robber, or

b. that the story of the alleged armed robbery was cooked up, or better still,