Ca/il/c.45/2013 (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

Consequent upon the leave granted on 28/09/2010, the appellant, SEMIU LAWAL was arraigned before the High Court of Kwara State holden at Ilorin on 5/10/2010 on a two count charge of conspiracy and armed robbery as follows:

“COUNT ONE:

That you Semiu Lawal (M), Kazeem (M) Surname unknown and Ayanmo (M) Surname unknown now at large on or about 30th November, 2009 at about 22:00 hrs at Maharaba Junction, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired and agreed to do illegal acts to wit: Rob at gunpoint One Tiamiyu Bello (M) of NNPC Depot Oke Oyi of his Rovers car with Registration No RX 433 AAA valued N680,000.00 and you thereby committed an offence contrary to section 97 of the Penal Code.

That you Semiu Lawal (M) Kazeem (M) Surname unknown and Ayanmo (M) surname unknown both now at large on or about 30th November, 2009 at about 22:00hours at Maharaba Junction, Ilorin, Kwara State within the jurisdiction of this Honourable Court while armed with gum robbed one Tiamiyu Bello (M) of his Rovers Car with Registration Number RX433AAA valued N680,000.00 and you thereby committed an offence contrary to section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.”

The appellant pleaded NOT GUILTY to the two counts and at the trial the prosecution called three witnesses as PW1, PW2 and PW3 while the appellant testified and called one witness in defence of the charge. In the judgment delivered on 21/3/13, the High Court of Kwara State (Now called the trial court) held that the prosecution had established the ingredients of alleged offences and consequently convicted the appellant and sentenced him to death by hanging.

Dissatisfied with the decision of the trial court the appellant filed notice of appeal on 25/4/13 with two grounds of appeal, and before this court the Appellant’s Brief of Argument settled by Olumuyiwa Akinboro Esq. of counsel was filed on 17/6/13 with the issues for determination formulated as follows:

1. Whether from the totality of the evidence before the trial court the prosecution proved its case against the appellant beyond reasonable doubt.
2. Whether the trial court was right in raw to have relied on Exhibits E and F in convicting the Appellant of the Offences charged.

The two issues were adopted by the Respondent in the Respondent’s Brief of Argument settled by Kamaldeen Ajibade Esq. Honourable Attorney General and Commissioner for Justice, Kwara State and filed on 22/7/13.

At the hearing of this appeal, the learned counsel for the parties adopted their respective brief of argument and relied on the argument therein. Appellant’s counsel urged that the appeal be allowed while Respondents’ counsel urged per contra that the appeal be dismissed.

Arguing the first issue, the learned counsel for the appellant submitted that in a criminal charge the standard is proof beyond reasonable doubt and the identity of the persons that participated in the armed robbery must also be proved beyond reasonable doubt. The cases of Aigbadion v. The State (2011) 7 NWLR (pt. 666) 686; Agbo v. The State (2006) 6 NWLR (Pt. 977) 545; Akinyemi v. The State (1999) 6 NWLR (pt. 607) 449 and Alonge v. I.G.P. (1959) SCNLR 516 were cited in support of this submission.

It was further submitted that all the essential elements of the offence must be proved by the prosecution by calling vital witnesses while the court must ensure that the act of the accused person falls within the particulars of the alleged offences, citing Amadi v. The State (1993) 8 NWLR (Pt. 314) 644; Alor v. The State (1997) 14 NWLR (Pt. 504) 511.

The essential ingredients of armed robbery according to the appellant’s counsel have been stated in Attah v. State (2010) 10 NWLR (pt. 1201) 190 and by that decision as well as the Penal Code and Robbery and Firearms Act, where offences of conspiracy and armed robbery have been alleged, the prosecution must proof that; the appellant agreed with two or more persons to commit the offence of armed robbery; there was robbery on the alleged date and some items were stolen; the appellant participated in the robbery and was armed with firearm or an offensive weapon or was in company of someone so armed during the robbery. Counsel contended that in this charge against the appellant the prosecution must establish the following elements;

(1) That the appellant agreed with the persons at large to steal the Rovers car with registration No. RX 433 AAA.

(2) That the appellant with the persons at large on the date and time of the alleged offence dispossessed Tiamiyu Bello of the said Rovers Car at gun point.