Iliyasu Suberu V. The State (2009)

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MARY U. PETER-ODILI, J.C.A.

This is an interlocutory appeal against the Ruling of the Honourable Justice H. A. Olusiyi of the High Court of Kogi State holden at Okene. In the Ruling which was delivered on the 28th day of May 2007, the learned trial Judge overruled the no-case submission of the Appellant and ordered him to put in his defence which decision Appellant was dissatisfied with and appealed to this court through a Notice and Grounds of Appeal the same day.

The charges against the appellant as accused with three others are on pages 1 – 2 of the record of appeal and reproduced hereunder:-

1ST HEAD OF CHARGE:

That you Momojimoh Audu, Nasiru Yahaya, Zuberu Iliyasu and Monday Alabi, on or about the 30th day of April, 2003 at Egbomina quarters Obehira in Okene Local Government Area of Kogi State within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing to wit: Agreeing together to rob Abdullahi Ibrahim of the sum of forty thousand naira which is a criminal offence and you thereby committed an offence punishable under Section 97(1) of the Penal Code.

2ND HEAD OF CHARGE:

That you Momoh Jimoh Audu, Nasiru Yahaya, Zuberu Iliyasu and Monday Alabi on or about the 30th day of April, 2003 at Egbomina quarters Obehira in Okene

Local Government Area of Kogi State within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you broke into the house of Abdullah Ibrahim while armed with a locally made short barrel gun and robbed him of his forty thousand naira at gun point thus committing an offence punishable under Section 298(c) of the Penal Code.

FACTS:

The facts not in dispute are that by the evidence of the prosecution, PW1 came from Port Harcourt to visit his family in Okene on the 30/4/03 and at about 11pm he heard a noise on the deck of his house and when he opened the door to find out the source of the noise, he was confronted by the 2nd accused who had a gun in his possession. That the 2nd accused ordered PW1 to produce the money he had on him, to which order PW1 gave the 2nd accused the sum of N25, 000.00 which he said was not enough and a further sum of N15, 000.00 was given to the 2nd accused who in trying to get away fell into a well in the premises from which he was brought out and the 2nd accused told the PW1 that it was 1st accused who led him to the house of PW1 to rob him.

The area of dispute came from the fact that while Appellant stresses that he as 3rd accused was not mentioned by the prosecution witnesses which position Respondent disagreed with contending that Appellant was never throughout mentioned by PW1′ he was mentioned by PW2 and other witnesses including Exhibit 1, the confessional statement of the 4th accused.

The Grounds of appeal without the particulars are as follows:-

“GROUNDS OF APPEAL:

1. The learned trial Judge erred in law when he ruled that the prosecution had established a prima facie case against the appellant based on inadmissible evidence.
2. The learned trial Judge erred in law in overruling the appellant’s no case submission based on Exhibit “1” which was inadmissible in evidence.
3. The learned trial Judge erred in law in ruling that the appellant had a case to answer and thereby breached the appellant’s right to Fair hearing.

On the 11/3/09 when this appeal was heard the learned counsel for the Appellant adopted appellant’s Brief filed on 31/8/07. In it was formulated a single issue viz: