Benjamin Ghohor V. State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

On the 3rd August, 2009, the appellant was found guilty of the offences of conspiracy to commit armed robbery and armed robbery. He was consequently sentenced to death by hanging by Ebiowoi Tobi, J.,of the Delta State High court of Justice, sitting at Otor-Udu.

The appellant and one LUCKY EFE were alleged to have attacked one Rebecca Oderhewo, on 13th October, 2005 at Ovwian within Effurun Judicial Division, Delta State who was robbed of the sum of N300 cash and jewelries worth N3, 000.00. They were said to have been armed with a gun and a cutlass. The appellant denied the two charges against him.

At the trial, the prosecution called two witnesses. An attempt to tender in evidence the extra-judicial statement of the appellant by the prosecution was objected to by the defence on the ground of involuntariness of the said statement. The trial within trial ended in favour of the defence, hence the extra-Judicial statement of the appellant was marked REJECT “1”

The appellant gave evidence in his defence and denied involvement in the offence for which he was charged to court. At the end of the case for the defence, counsel for the prosecution and defence addressed the court.

They were each convicted for the said offences under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. 22 Laws of the Federation of Nigeria, 1990, on 3rd August, 2009.

Each of the convicts filed separate notices of appeal against their convictions and sentences of death by hanging placed on them. The appeal of the appellant herein is No. CA/B/354C(A)/2010 whilst that of his co-accused – LUCKY EFE is N o. CA/B/354C/(B)/2010.

In his appeal, the appellant originally filed two grounds of appeal. Thereafter, six additional grounds of appeal were filed by the appellant.

So,vide an amended Notice and Grounds of appeal, the appellant filed altogether, eight (8) grounds of appeal.

Ayo Asala, Esq., of learned counsel to the appellant settled the appellant’s brief of argument dated 22nd May, 2012 which was filed on 5th June, 2012. In it, two issues were distilled for the determination of the appeal, to wit:

“(i) Whether there was credible evidence before the lower court justifying the findings that the appellant was properly identified as one of the persons that robbed PW1, Rebecca Oderhewo.

(ii) Whether from the totality of the evidence on the record, the lower court was right in convicting the appellant for the offences of conspiracy to rob and armed robbery.”

The respondent, on the 7th January, 2013 filed her brief of argument dated 24th December, 2012. It was settled by O.F. Enenmo Esq., Deputy Director of Public Prosecutions, Delta State Ministry of Justice, Asaba. A sole issue for determination was identified by Mr. Enenmo, namely:

“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW WHEN HE HELD THAT THE PROSECUTION PROVED IT’S CASE AGAINST THE ACCUSED PERSON BEYOND REASONABLE DOUBT. GROUNDS 1, 5, 9.”