Kazeem Omopupa V. The State (2007)

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JUMMAI HANNATU SANKEY, J.C.A.

The Appellant herein, Kazeem Omopupa, was arraigned before the High Court of Justice, Ilorin, coram Hon. Justice M.A. Afolayan, on a one count charge that read thus:

‘That you Kazeem Omopupa and 2 other now at large on or about the 15th day of March, 2003 at about 11.40 hours at No. 1A Obangede Road, Adewole Estate, Ilorin within the jurisdiction of this Honourable Court whilst armed with a gun attacked and robbed one Alhaji Mustapha Alabi of two necklaces, one size a tennis shoes, 2 rings, two Motorola handsets (V70 and V-66) and the sum of about N99,000.00 and you thereby committed an offence punishable under Section ‘(2) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria, ‘1990.”

The Appellant pleaded not guilty to the charge and the matter went to full trial. In the course of hearing, three witnesses testified for the prosecution. The Appellant testified in his defence but called no other witness. Thereafter, both learned Counsel for the accused, and the State addressed the Court on the issues of facts and law arising. At the close of trial, the learned trial Judge convicted the Appellant as charged and sentenced him to death by hanging. It is against this conviction and sentence that the Appellant has now appealed. He filed four original Grounds of Appeal along with his Notice of Appeal, and four Additional Grounds which are set out hereunder shorn of their particulars:

GROUNDS OF APPEAL

1. The learned trial judge erred in law by holding that the prosecution had proved their case beyond reasonable doubt, when this was not so thereby wrongly convicting the accused person.
2. The learned trial judge erred in law when he held thus:

“The difference in the date of arrest of the accused is not so material and PW3’s evidence that more than N100,000 cash was stolen from Alhaji Mustapha, whereas the charge sheet says N99,000 is also not material in view of the evidence of the prosecution that there was a robbery and some of the items were recovered from the accused.”

3. The learned trial judge erred in law by holding that “Having watched the demeanour of the accused in general and particularly at this stage and the contradictory evidence as to the description of the house of the man who sold the mobile phone to him, the court has a cause to disbelieve the accused and I hold that he not a witness of truth. ”
4. The conviction of the convict is all together unreasonable, unwarranted and cannot be supported having regard to the evidence before the trial court.

ADDITIONAL GROUNDS OF APPEAL

5. The learned trial judge misdirected himself on the facts in holding

“Secondly, the two Motorola handsets V700 and V60 that were said to be stolen during the robbery, PW3was able to give account of how the two phones got to a mobile phone Technician Applied Technology Services also a friend to Alhaji Mustapha, who recorded the particulars of the Motorola phones when Alhaji Mustapha brought them from USA and took them to him to help him unlock the phones, when the same phones were brought some months later by this accused for repairs the technician was able to detect them through the particulars of the phone he already recorded and he alerted Alhaji Mustapha which led to the arrest of this accused who gave the two Motorola sets to the Applied Technology Services. He said the phone dropped and got damaged and he took it to the Applied Technology Services for repairs. The same phone that was stolen during robbery was found with accused. This raises a prima facie linkage with the alleged robbery, this calls for credible evidence from accused to establish that he came about the handsets in an honest manner”.

6. The Learned trial judge erred in law in holding that:

“The accused was accompanied by the police to the house of the person he alleged sold the mobile phone to him. PW2 in his evidence said the accused confessed to him that the phones were part of his share of the robbery proceed and the accused took them to the house of the gang leader who he referred as “Aka” alias Alhaji but that one escaped”

7. The learned trial judge erred in law in treating the accused as an unreliable witness and in disbelieving his testimony thereby reaching the conclusion to convict him based on the evidence of the prosecution.
8. The learned trial judge erred in law in convicting the accused principally on the testimony of the PW3when from his own (PW3’s) showing his testimony is incredible, unintelligible and unworthy of belief.

The Appellant’91s Brief of Argument in respect of the Appeal is dated 26th February 2007 and deemed filed on the 13th March, 2007. At the hearing of the Appeal, Mr. Bello, learned Counsel for the Appellant, adopted the Appellant’91s Brief of Arguments. He made a few brief oral submissions and cited the additional authority of Ndidi v. The State (2007) 5 SCNJ 274 at 287. He prayed the Court to allow the Appeal. The Respondent’91s Brief of Argument dated 5th March, 2007 was filed on the same date. Learned Director of Public Prosecution for the Respondent, Mr. J. A. Mumini, also adopted the Respondent’91s Brief of Argument and made a few brief oral submissions wherein he cited the additional authority of The State VNnoli(1994) 5 NWLR’abPt. 345) 394 at 414. He urged the Court not to reverse the Judgment of the trial Court.

In his written Brief of Argument, the Appellant identified the following two issues for the determination of the Court in this Appeal:

1. Whether the learned trial Judge was right in holding that the guilt of the accused person was proved beyond reasonable doubt as required by law.

Grounds 1, 2, 4, 5, and 8.

2. Whether the trial Court properly appraised the evidence before it especially the defence of the accused person and came to the right conclusion in respect thereof. Grounds 3, 6 and 7.

Learned Counsel for the Respondent agreed with him on the issues arising for determination. I have examined the issues formulated and I also agree that they aptly cover all the grounds upon which the Appellant is appealing the Judgement of the trial Court. I therefore adopt them as the issues to be determined in this Appeal and proceed to post-haste determine same.

Issue One.