Idowu Somefun V. The Attorney-general, Ogun State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN (Delivering the leading judgment)

This is an appeal against the judgment of High Court of Ogun State, sitting at Ilaro delivered on 7th November, 2006. The appellant was charged before the said court on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 5 and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria (LFN) 1990. The matter proceeded to trial wherein the prosecution called five witnesses. The appellant testified on his own behalf and called no other witness. At the conclusion of the trial the appellant was convicted and sentenced to death. Being dissatisfied with the decision he filed a notice of appeal dated 17/11/06 but filed on 27/11/06 containing the omnibus ground of appeal that the judgment is unreasonable having regard to the weight of evidence. With leave of this court granted on 15/1/09 he amended his notice of appeal. The amended notice of appeal contains four grounds of appeal.

The grounds of appeal are as follows:

1. The learned trial Judge erred in law when he tried and convicted the accused person when there was no compliance with Section 215 of the Criminal Procedure Law of Ogun State and Section 36 (6) (a) of the 1999 Constitution.
2. The learned trial Judge erred in law in convicting the appellant of a capital offence when the provisions of Section 352 of the Criminal Procedure Law, Ogun State, Rule 5 Robbery and Firearms Tribunal (Procedure) Rules Cap 398 Laws of the Federation 1990 and Section 35 (2), 36 (6) (c) of the 1999 Constitution, were not complied with substantially, which thereby led to a breach of fair hearing when:

(a) The right to Counsel in a criminal trial is the foundation of the right to fair hearing.

(b) The assignment of a Counsel to an indigent person facing a capital offence is not a mere formality.

(c) The Counsel assigned to the appellant did not exert his best effort on behalf of the applicant in the conduct of his case.

(d) The appellant did not get a fair hearing.

3. The learned trial Judge erred in law when he held that “the prosecution has proved the charge of conspiracy and armed robbery beyond reasonable doubt against the accused person” when:

(a) The evidence of the prosecution witness was insufficient, contradictory and unreliable.

(b) The accused person was not found in possession of the amount of money allegedly stolen.

(c) The accused person was not found in possession of any offensive weapon and neither was any offensive weapon tendered in evidence.

(d) The burden of proof is always on the prosecution and never shifts to the accused person in a criminal trial.

(e) The essential ingredients of the offence of armed robbery were not proved or established by the prosecution.

4. The decision of the High Court is not supported having regard to the weight of evidence.

In compliance with the Rules of this Court the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief, settled by J.A. Badejo is dated and filed on 21/11/08 but deemed filed on 15/1/09. He also filed a reply brief dated and filed on 22/7/09. At the hearing of the appeal on 9/2/2010, Mr. Badejo adopted and relied on both briefs and urged the court to allow the appeal. He observed that the respondent in its brief had conceded that the trial at the court below was a nullity for non-compliance with Section 215 of the Criminal Procedure Law of Ogun State. He stated that the only issue in contention in this appeal is whether this court should order a proper trial or discharge and acquit the appellant. He argued that in the circumstances of this case, the appellant should be discharged and acquitted. O.T. Olaotan, of counsel settled the respondent’s brief dated 25/4/09 and filed on 30/6/09 but deemed filed on 15/7/09. Mrs. AO. Oguntola, learned State Counsel, Ogun State Ministry of Justice adopted and relied on the said brief. She submitted that both parties agree that the trial at the court below was a nullity. She urged the court to allow the appeal in part and order a proper trial.

The appellant formulated the following three issues for determination from the four grounds of appeal: