Blessing Botu V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Honourable Justice Ebiowei Tobi sitting at the High Court of Delta State, Ughelli Judicial Division delivered on the 23rd day of July 2011. The facts that led to this appeal are as follows:

The Appellant was arraigned before the trial court on a three count charge of conspiracy to commit armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act and armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. The Appellant and one Odafe Awhata now at large were alleged to have robbed at two different locations on different dates, two different complainants.

The first robbery occurred on the 18th day of August 2002 and the second on 24th day of August 2002. The appellant and Odafe Awhata were accused of having robbed on the 18/8/2002 at gun point one John Eyalegin of his Mercedes Benz V/Boot. They were also accused of having on the 24/8/2002 at gun point robbed one Pastor A. B. J. Udoka of his Mercedes Benz N boot 300E. The particulars of the offences are stated thus:

PARTICULARS OF OFFENCE: COUNT I

Blessing Botu (m) and Odafe Awhata (m) on or about the 18th day of August, 2002 at Effurun within Effurun Judicial Division conspired with each other to commit armed robbery armed with a gun

PARTICULARS OF OFFENCE: COUNT II

Blessing Botu (m) and Odafe Awhata (m) on the 18th day of August 2002 at DSC township within Effurun Judicial Division robbed one John Eyalegin of his Mercedes Benz V/Boot car and at the time of the robbery you were armed with a gun

PARTICULARS OF OFFENCE: COUNT III

Blessing Botu (m) and Odafe Awhata (m) on the 24th day of August 2002 at DSC town 1, within Effurun Judicial Division robbed one pastor A. B. J Udoka of his Mercedes Benz N Boot 300 E with registration number BP 165 ABJ and at the time of the robbery, you were armed with an offensive weapon to wit: gun

The Appellant pleaded not guilty to all three counts. Evidence was led by both parties at trial with the respondent calling four witnesses while the Appellant testified for himself. 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, as the trial court held that it was not made voluntarily, hence the extra-Judicial statement of the appellant was marked REJECT “1”. The defence thereafter made a no case submission which was overruled.

At the close of the trial, the trial court found the appellant not guilty of count I of the charge to wit: conspiracy to commit armed robbery but the appellant was found guilty of charges II and III to wit: armed robbery. The court sentenced him to death for each of the two counts.

The Appellant being dissatisfied with the Judgment of the trial court, by a Notice of Appeal dated 28th July 2011 filed five grounds against his conviction and sentence. The Appellant’s brief of argument is dated 11th March 2013 deemed filed on the 7th January 2014 while the Respondent’s brief dated 30th April 2013 deemed filed 7th January 2014.

The Appellant’s counsel in the brief settled by Ayo Asala Esq formulated two issues for the determination of the appeal. The issues read thus: –