Johnbull Arhabone V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 20/12/2006 by the High Court of Justice Delta State holden in the Orerokpe Judicial Division (hereafter simply referred to as “the lower court”) presided over by Omamogho, J.; (hereafter simply referred to as “the learned trial Judge”).

An Information containing two counts for the offences of conspiracy to commit the offence of armed robbery and substantive offence of armed robbery both punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, LFN, 1990, was preferred against the Appellant.

In its judgment, the lower court discharged and acquitted the Appellant on the count relating to conspiracy to commit the offence of armed robbery but convicted him on the count relating to the substantive offence of armed robbery and consequently sentenced him to death pursuant to Section 1(2)(a) supra.

Being aggrieved with his conviction and sentence on the count for the substantive offence of armed robbery, the Appellant lodged the instant appeal against the judgment of the lower court by a Notice of Appeal filed on 8/1/2007. The Notice of Appeal contains four grounds of appeal. On 12/5/2009 the Appellant later filed an Amended Notice of Appeal dated 27/11/2008.

In accordance with the current Rules of this Court, both Appellant and Respondent filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 2/4/2012 and filed on 4/6/2012 was deemed to have been properly filed and served on 16/4/2013. It was settled by Olatunde Busari. Respondent’s Brief of Argument dated 17/6/2013 and filed on the same date was deemed to have been properly filed and served on 18/10/2013.

It was settled by Martins A. Omakor – (Asst. Director of Public Prosecutions, Ministry of Justice, Delta State) (hereafter simply referred to as “learned ADPP”). The appeal was entertained on 15/1/2014. At the hearing of the appeal, T.O. Busari learned counsel for the Appellant and learned ADPP for the Respondent respectively, adopted and relied on the Briefs of Argument as hereinbefore identified in respect of their positions in the appeal.

Two Issues were formulated in the Appellant’s Brief of Argument for the determination of the appeal. The Issues are: –

“i. Whether the Lower Court was right to have convicted the Appellant of Armed Robbery and sentenced him to death by hanging when the Prosecution failed to prove the guilt of the Appellant beyond reasonable doubt?

ii. Whether the Lower Court was right to have proceeded to hear the Charge against the Appellant when the Appellant was charged under the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 and/or without the Prosecution seeking and obtaining the fiat of the Attorney General of the Federation?”

Likewise, two Issues were formulated for the determination of the appeal in the Brief of Argument of the Respondent. The Issues read thus: –

“(i) Whether the lower court was right in convicting the appellant from the evidence (direct, partly confessional and circumstantial before it).

(ii) Whether the lower court was right to have proceeded to hear the charge against the appellant when the Appellant was charged under the robbery and firearms (special provisions) (sic) Act Cap 398 laws of the federation (sic) of Nigeria 1990 and/or without the prosecution seeking and obtaining the fiat of the Attorney General of the Federation?”

Issue 2 in the Briefs of Argument of the Appellant and Respondent are ipsissima verba while Issue 1 formulated by the parties though differently couched, clearly are the same in purport. Against the backdrop of the observations made hereinbefore, the appeal will be determined on the Issues as formulated by the Appellant. I will however deal with the second of the Appellant’s two Issues first. This is because the said Issue loudly questions the vires and consequently the jurisdiction of the lower court to have entertained the Information preferred against the Appellant.