Johnson Adeyemi V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA J.C.A (Delivering the Leading Judgment)

The appellant herein and another, Godwin Pius were arraigned before the Ondo State High Court, Akure judicial division charged with conspiracy to commit robbery and robbery contrary to sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990.

The particulars of the offence for which the appellant and Godwin Pius were charged are that on the 3rd day of January 2004 at Oshinle quarters in the Akure Judicial Division, they conspired to commit a felony, to wit armed robbery and did rob one DRP Communications a GSM handset company of handsets worth over one million naira (N1, 000, 000.00) as well as the sum of fifty thousand naira (N50, 000.00) while armed with guns.

In order to prove its case, the prosecution called two witnesses and tendered in evidence the confessional statements of the two accused persons after trials within trials as Exhibits P5 and P6. The appellant and the other accused person gave evidence in their respective defence. The appellant called one other witness, his sister who testified as DW2 in the main trial. After the close of case for both parties, addresses were taken and in a considered judgment the learned trial Judge Akeredolu J convicted each of the accused persons as charged and sentenced each to death by hanging or by firing squad.

It is against the judgment and conviction that this appellant, Johnson Adeyemi has brought this appeal. The notice of appeal which is dated 16/6/08 contains six grounds of appeal which read as follows:

“1. The decision/judgment of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.

2. The trial court misdirected itself when it held thus:

“There is no doubt created in the mind of the court which could be resolved in favour of the accused person. The case of Ajidahun V. The State (supra) establishes that the statement of the accused must be recorded in the language in which it was made or as near as possible to it and that both the statement and its translation should be tendered. It is irrelevant to this case in which the defence is that the accused did not make statement to the police.”

3. The trial court was wrong when it relied on Exhibit P.6 without considering and making a finding on the issue of illiteracy of the 2nd Accused/Appellant raised on the evidence before it before convicting the 2ndAccused/Appellant.
4. The trial court’s finding that count 2 of the information filed before it is not contrary to Exhibit P.6 is perverse on the available material facts and evidence before it.
5. The trial court misdirected itself when it concluded or held thus:

“The fact that PW1 said he could not remember the make of the handset recovered from each accused person when cross-examined does not create any doubt in the mind of the court.”

6. The trial court erred in law when it held thus;

“I have accepted Exhibit P6 as the confessional statement of the 2nd Accused/Appellant. In addition to the statement, PW1 said that on a visit to SARS the 2nd Accused/Appellant was brought out. He narrated what happened in his presence. He said that the 2nd accused in his presence said that he was instructed to stay at Olukayode junction about 1/2 kilometer from his office with ‘okada’ and that he should report at the spot where he saw them after the robbery. He said that was how he knew that the 2nd Accused/Appellant person is the ‘okada man’. In the circumstance of this case there is no need for the police to conduct identification parade.”

In line with the rules of this court, briefs of argument were filed and exchanged. The appeal came up for hearing on the 27th day of March, 2012. Ekerete Udofot Esq. learned counsel for the appellant identified the appellant’s brief dated 27/4/10. He adopted and relied on the argument contained therein and urged the court to allow the appeal. Steve Adebowale Esq. Deputy Director Public Prosecutions, Ministry of Justice Ondo State adopted the respondent’s brief dated 19/11/10 and urged this court to dismiss the appeal and affirm the decision of the lower court.

From the six grounds of appeal, Mr. Udofot, learned counsel for the appellant distilled five issues for determination. They are:

“1. Whether on a proper and fair consideration of the material oral evidence on record and the authority of Ajidahun v. State (1991) 9 NWLR (Pt. 213) 332 @ 341, the trial court ought to have relied on Exhibit P.6 in convicting the 2nd accused/appellant. (Ground 1)

2. Whether the trial court was right to have convicted the 2nd accused/appellant on the basis of Exhibit P.6 without considering or making a finding on the issue of illiteracy raised by the 2nd accused/appellant on the evidence before it. (Ground 2)
3. Whether the finding of the trial court that count 2 of the information before it is not contrary to Exhibit P is perverse. (Ground 3)
4. Whether the trial court was right to have based its finding on a non-existent piece of evidence in convicting the 2nd accused. (Ground 4)
5. Whether the trial court was right to have held that there was no need for the police to conduct identification parade in the circumstances of this case. (Ground 5)

Learned Counsel appears to have abandoned ground 1 of his grounds of appeal as shown in his notice of appeal at page 132 of the record and renumbered his grounds of appeal accordingly. The said ground 1 is hereby struck out, leaving five grounds of appeal duly renumbered.

Leo Ologun Esq. Assistant Director Civil Litigation, Ondo State Ministry of Justice who prepared the respondent’s brief of argument observed that issues 1, 2 and 3 formulated by the appellant touch on Exhibit P6 and condensed the three issues into one issue. Learned counsel also condensed appellant’s issues 4 and 5 into one issue. The two issues are as follows: