Colman Momoh V. The State (2015)

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 Hon. Justice J.O Aigbuloko Oyakhirome delivered on the 24/01/08 at High Court of Justice, Benin City, Edo State, wherein the Appellant was convicted for the Offence of Conspiracy to commit Armed Robbery and the Offence of Armed Robbery and sentenced to death by hanging.

The facts that led to this appeal is as follows:

On the 27th of June, there was an Armed Robbery incident by a gang of armed robbers at a Chuks Aghol Petrol filling station at Upper Mission Road in Benin. The armed robbers obtained money from the staff and customers, got into their vehicles and left one of their members in a bid to make a run for it. A chase ensued. Subsequently, boys in the area brought the Appellant back to the station as the armed robber that got away. The Appellant was then taken from the filling station to the Police station.

The Appellant, Colman Momoh was arraigned before the trial court upon charge sheet containing two counts:

COUNT I

THAT YOU, Colman Momoh (m) and others at large on or about 27th of June, 2006 at Upper Mission Road, Benin City in the Benin Judicial Division did conspire to commit a felony to wit: Armed Robbery and thereby committing an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act No. 6 Cap. 398 Laws of the Federation of Nigeria 1990.

COUNT II

THAT YOU, Colman Momoh (m) and others at large on or about the 27th June, 2006 at Upper Mission Road, Benin City in the Benin Judicial Division did rob Chuks Aghol Petrol Station, Upper Mission Road of the sum of N500,000. cash and at the time of the robbery, you were armed with guns and thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act No. 6 Cap. 398 Laws of the Federation of Nigeria 1990.

The Appellant pleaded not guilty to both counts. To prove its case, the prosecution called three witnesses, and tendered six exhibits. P.W.1 is Cpl Atabo Okpanachi, the Police officer who took the statements of the complainant, his witnesses and the accused’s cautionary statement. P.W.2, is a pump attendant at the filling station who was dispossessed of the proceeds he had made that evening. P.W.3 is the Manager of the filling station.

The Appellant testified on his own behalf, tendered two exhibits and called no witnesses. At the close of trial, the learned trial judge found him guilty of Armed Robbery and Conspiracy to commit the Offence of Armed Robbery. He was convicted on both counts and sentenced to death by hanging.

Dissatisfied with the decision of the trial court, the Appellant initiated this appeal by a Notice of Appeal filed on 28/1/2008 which articulated three grounds of appeal and an amended notice of appeal filed on 19/2/14 with five additional grounds against his conviction and sentence. The Appellant’s brief of argument is dated and filed on 25/2/14, while the Respondent’s brief dated 13/10/14 was filed on 14/10/14 deemed as filed on 7/5/15.

The Appellant’s counsel in the brief settled by P.I. Momodu, Esq identified three issues for determination. The issues read as follows:

1. Whether at the close of the prosecution’s case, there is legally admissible evidence sufficient to call on the Appellant to enter his defence.
2. Whether there was evidence of identification fixing the Appellant to the scene of the crime to support Appellant’s conviction.
3. Whether the conviction of the Appellant is legal in view of the overwhelming totality of the summations, guesses, speculations and assertions not supported by the evidence of the prosecution.

In the Respondent’s brief settled by V.U. Adeleye (Mrs) – Assistant Director, Ministry of Justice, only one issue was identified for determination in this appeal to wit: