Kehinde Moshood V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is in respect of a criminal matter. The Appellant Kehinde Moshood was charged with two others for conspiracy to commit armed robbery and armed robbery. The Appellant and the others charged along with him were accused of serial robberies at two locations in Abeokuta namely Kemta Housing Estate Idi-Aba and No.1, Odunbaku Avenue on the 4th of November 1999.

The Appellant was alleged to have made a confessional statement. Based primarily on that confessional statement, the Appellant was convicted of the offence and sentenced to death by firing squad. It is apposite to state that a total of ten witnesses testified for the prosecution while the Appellant who testified as Dw3 testified on his own behalf.

Aggrieved by the judgment (the judgment was delivered on the 1st of August 2003) the Appellant prepared a Notice of Appeal dated 8th of August, 2003. (See at page 120 of the Record of Appeal). Apparently, he omitted, failed or neglected to file it. It was not until the 4th of October 2010 that a Notice of Appeal was duly filed consequent upon a Motion for extension of time granted by this court. The Notice of Appeal was deemed as properly filed and served on 15/11/2010.

In the Notice of Appeal, the Appellant attacked the judgment of the trial judge on the following four grounds, viz-

“1. That the learned trial judge committed a grave error in law in convicting the Appellant of the offences of armed robbery and sentencing him to death by firing squad when the law under which the charge was brought is in violation of the Appellant’s constitutional rights as enshrined in Section 36(6)(a) and is inconsistent therewith.

2. The learned trial judge erred in law and occasioned a grave miscarriage of justice in holding that the prosecution proved its case of conspiracy to commit armed robbery and armed robbery against the Appellant when the identity of the Appellant was never established by any procedure known to law.
3. The learned trial judge erred in law in wrongly evaluating the evidence given at the trial within a trial and thereby admitting inadmissible evidence (the confessional statements of the Appellant and the co-accused persons) on which he relied in convicting and sentencing the Appellant.
4. The learned trial judge erred in law when he held that the prosecution had proved its case of conspiracy to commit armed robbery and armed robbery against the Appellant when he failed to take into account the material contradictions and discrepancies in the evidence given by the prosecution witnesses.

The grounds each had accompanying particulars but I do not consider it necessary to reproduce them here as they are rather prolix.

Olakunle Agbebi Esq. Appellant Counsel filed Appellant’s Brief of Argument on 10/1/2013. The same was deemed as properly filed and served on 7/10/2013 consequent upon an order of this court. The Respondent’s Counsel B. A. Adebayo Esq. filed the Respondent’s Brief on 30/10/13.

Appellant’s Counsel identified four issues for determination in this appeal. They are as follows:-

“1. Whether the provisions of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree, 1999 under which the Appellant was tried, convicted and sentenced are not inconsistent with the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 and therefore void?

2. Whether the failure by the prosecution to identify the Appellant as one of the robbers is not fatal to the case for the prosecution?
3. Whether the learned trial judge was right in admitting Exhibit C in evidence and attaching any weight to it?
4. Whether the learned trial judge was right in holding that the prosecution proved a case of conspiracy and armed robbery against the Appellant beyond reasonable doubt?

The Respondent’s Counsel considered that only one issue is necessary for the determination of this appeal. He formulated that issue as follows:-

“Whether the prosecution proved beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery against the Appellant having regard to the evidence before the trial court”.

I observed that the formulation of a lone issue notwithstanding, the Respondent’s counsel joined issues on the Appellant’s issue 1.

This appeal has a sister appeal in CA/I/67A/2007. I was privileged to write the lead judgment in that sister appeal. The facts in this appeal are exactly the same as the facts in the sister appeal. The reason is that the Appellant in this appeal was a co-accused at the trial court with the Appellant in CA/I/67A/2007. While the Appellant in CA/I/67A/2007 was the 2nd accused at the trial court, the Appellant in this appeal was the 3rd accused in that court. Counsel in both appeals are the same, the issues formulated in both appeals are the same, and the arguments in both appeals are the same. That being the case, the maxim de Similibus idem est judicium, that is, in like cases the decisions is the same, applies. I cannot however simply adopt my judgment in CA/I/67A/2007 and be done with this judgment. That will deny those who did not read that judgment, the benefit of understanding the reasons for the decision in this judgment, I will therefore repeat to a large extent the submissions of Counsel and my views in appeal No.CA/I/67A/2007 in this appeal.