John Nwachukwu V. The State (1986)

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KARIBI-WHYTE, J.S.C

On the 30th January 1986 I dismissed this appeal after hearing Counsel for the appellant and respondent and indicated that I shall give my reasons for so doing today. Herein below are the reasons.

Appellant with two others were charged before the Ikeja High Court with the offence of Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. At the conclusion of the trial, the trial judge found only the Appellant guilty of the offence as charged on the information.

The other two were found not guilty and were accordingly acquitted and discharged. Appellant was sentenced to death by hanging or by firing squad as the Governor of Lagos State may decide. Appellant appealed against his conviction to the Court of Appeal. The court of Appeal allowed the appeal and set aside the conviction for Robbery and Firearms (Special Provisions) Act 1970. In its place a conviction for the offence of Robbery under section 1(1) of the same Act, with imprisonment for 21 years was substituted.

The appeal before this Court is against the judgment of the Court of Appeal. There are two grounds of appeal which are reproduced as follows:

GROUNDS OF APPEAL

“A. The learned judges of the Court of Appeal erred in law in changing the charge of Robbery & Firearms under the Robbery & Firearms Decree 1970 (as amended) to simple robbery and found the Appellant guilty of the ordinary robbery without calling on the parties to address it on the desirability of such holding.

PARTICULARS

(i) The learned judges ought to have called for addresses on the point before deciding.

(ii) If they had, it would have been submitted to them that such a holding in the circumstance of this case is not open to them

(iii) The elements of ordinary robbery are not made out in the Record.

B. The learned judges of the Court of Appeal erred in law in reducing the charge to that of ordinary robbery when the evidence before the Court cannot sustain such a finding law.”

Counsel for the Appellant Otunba Ajayi-Okununga, sought and was granted extension of time within which to appeal, and for leave to appeal to this Court against the judgment of the Court of Appeal. The Court of Appeal had refused applicant leave to appeal to this Court.

The judgment of the Court of Appeal appealed against was delivered on the 3rd October, 1985. It is a final decision and by virtue of Section 31(2)(b) of the Supreme Court Act 1960, right of appeal can be exercised within 30 days. The grounds of appeal being one of law, appellant only required extension of time to appeal. Leave to appeal is unnecessary. Since this is a matter involving a long and mandatory term of imprisonment it was considered expedient to grant extension of time to the appellant to enable arguments on the grounds filed to be addressed to this Court.