Mufutau Owolabi V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

On appeal before us is the judgment of the lower court in a criminal matter. The appellant was arraigned before the lower court, that is, the High Court of Oyo State, on a two count charge as follows:-

COUNT I: That you MUFUTAU OWOLABI ‘M’ aged 28 years and one other at large on the 29th day of January, 2009 at about 10pm at Shasha Ojoo area, Ibadan in the Ibadan Judicial Division did conspire together to commit a felony to wit: armed robbery and thereby committed an offence contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.

COUNT II: That you MUFUTAU OWOLABI ‘M’ aged 28 years and one other at large on the same date, time and place in the Ibadan Judicial Division while armed with dangerous weapon such as a big rod did rob one Alhaji Abubakar Mustapha of the sum of N2, 000,000 (Two Million Naira) and thereby committed an offence contrary to and punishable under Section 1(1) and (2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004″.

After hearing four witnesses from the prosecution and the same number of witnesses for the defence and considering the closing arguments of counsel on both sides, the learned trial judge came to the following verdict. His words:

“From the evidence before the court the accused person is found guilty of robbery and convicted accordingly”.

He then proceeded to hand down his sentence: Again, his words:

“Since the provision of Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria is mandatory, the accused person is sentenced to 21 years imprisonment. The sentence shall start to run from the date of his detention in prison custody”.

Dissatisfied with the conviction and sentence, the appellant filed a Notice of Appeal against the judgment on 22/7/2013. The judgment was delivered on 3/7/2013. The appellant sought in the Notice of Appeal, to overturn the judgment on four grounds. In each of the grounds he gave particulars of the errors made by the trial judge in the judgment. The grounds of appeal, excluding the particulars of error are as follows:-

1. The decision of the learned trial judge is wrong in law because the prosecution did not prove the commission of the offence of Robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria beyond reasonable doubt against the Appellant.
2. Having regard to the evidence on record, the decision of the trial court is unwarranted and unreasonable.
3. That the learned trial judge erred in law when he held that the appellant had a common intention with persons unknown, to rob; and
4. The conviction of the appellant by the learned trial judge for conspiracy to rob is wrong in that the charge of conspiracy to rob was not established against the appellant beyond reasonable doubt.

In the Appellant’s Brief of Argument settled by Adekunle Ojo Esq. filed in court on 20/11/13 and argued on 16/10/14, three issues for determination were formulated. They are –

1. Whether the trial judge did not err in law when he held the appellant guilty of the offence of robbery when in fact the prosecution did not prove the commission of the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria beyond reasonable doubt against the appellant. (This issue is predicated on ground 1 of the grounds of appeal).
2. Whether the trial judge did not err in law when he held the appellant guilty of conspiracy to commit a felony in view of the fact that the prosecution failed to establish the offence of conspiracy against the appellant beyond reasonable doubt. (This issue emanated from grounds three and four of the grounds of appeal).
3. Whether the failure of the learned trial judge to properly evaluate all the evidence on record did not occasion a miscarriage of justice to the appellant. (This issue is based on ground two of the grounds of appeal).

The Respondent’s Brief of Argument was settled by F.B. Segun-Olakojo (Mrs.) the Director, Legal Drafting and Parliamentary Counseling in the Ministry of Justice of Oyo State. The Brief of Argument was filed on 22/9/14 but by an order of this court, deemed as properly filed and served on 22/9/14. The Respondent’s Counsel identified two issues for determination in this appeal, to wit:

1. Whether from the evidence adduced by the Respondent at the trial court it had proved the offences of conspiracy to commit armed robbery beyond reasonable doubt; and
2. Whether the trial judge was right in convicting the Appellant for the lesser offence of Robbery and not Armed Robbery.

Although the Respondent identified two issues for determination as against three issues identified by the Appellant, the issues formulated by both of them are not too different. I will consider this appeal by following the issues identified in the Appellant’s Brief of Argument. I choose to begin with issue 2 for reasons that will be made clear shortly. That issue as will be recalled is whether the trial judge did not err in law when he held the appellant guilty of conspiracy to commit a felony in view of the fact that the prosecution failed to establish the offence of conspiracy against the appellant beyond reasonable doubt.

Clearly the issue is anchored on the premise that the appellant was found guilty or to use the language used in formulating the issue “held” guilty of conspiracy. No doubt, the learned trial judge considered the issue of conspiracy and came to a finding. In his judgment particularly at page 62 of the Record of Appeal, the learned trial judge stated as follows:-

“PW1 was the victim when the incident happened. The evidence he gave was that somebody emerged from nowhere when the accused person hit him on the head the second time and ran away with his money contained in the nylon bag. PW2 stated that he saw the second person running away when he got to the scene with the money.