Nosiru Attah Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C. 

The single issue formulated by the learned counsel for the appellant, from the ground of appeal filed in this appeal reads as follows:

“Whether the Court of Appeal was right in holding that the failure to take the plea of the appellant on all the counts which made up the amended charge did not render the whole proceedings null and void.”

The appellant was arraigned before Obadina, J., of Lagos High Court on a four-count charge of armed robbery and conspiracy to commit armed robbery, contrary to sections 402(2) (a) and 403A of the Criminal Code Law of Lagos State. At the end of the trial, during addresses, the prosecution was granted leave to add a fifth count. The count was based on being in possession of a thing reasonably suspected of having been stolen, contrary to section 430(1) of the Criminal Code Law. In his judgment, the learned trial judge convicted the appellant of the offences of armed robbery and conspiracy to commit armed robbery. He however discharged and acquitted the appellant of being in possession of a thing reasonably suspected of having been stolen. The appellant was sentenced to thirty years imprisonment on each count. The sentences were made to run concurrently.

The brief facts of the prosecution’s case are in the following narrative:

Mrs. Yetunde Oduneye testified, in this case, as P.W.1 and told the trial court that on 27th January, 1982, at about 10.30a.m, she was coming from the market when she saw a white Passat car parked in front of her house. She saw the appellant sitting in the car with the engine of the car no. Immediately the appellant saw her he blew the horn of the car three times. As soon as she parked her car a neighbour warned her that there were three people inside the house and one of them was carrying a shot-gun. Mrs. Oduneye stood by her car. A few minutes later she saw a man, who was later known to be Mr. Olude, coming along the street. Mrs. Oduneye sought his help. But she warned him that one of the intruders was holding a gun.

Mr. Olude went inside the house and challenged the intruders and when they rushed out. Mrs. Oduneye saw three people rushing out of the house. They went straight into the waiting Passat car. The appellant who was in the car drove off. Mrs. Oduneye saw one of the robbers holding a gun; the second was holding a broken gulder bottle and the third was carrying the hand bag of her neighbour. Mrs. Florence Beyioku.

People began to shout Ole! Ole! Ole! meaning thief! thief! thief! The robber holding Mrs. Beyioku’s bag dropped it and the one holding a gun started shooting in the air to scare the people away. The road was rough and the car could not gain speed. The car came towards Igbobi Round About where three mobilie police men were on duty. When the policemen saw a Passat car with registration No.LA 1251 BD being pursued by a crowd shouting thief! thief! they entered another vehicle and gave a chase. The vehicle reached a dead end, near the army gate, and it stopped. The appellant was arrested. When asked about the others the appellant said they had ran away. A lady’s handbag containing some items, a bunch of keys, a necklace, two driving licences, and some other articles were found in the car.

Mrs. Oduneye told the trial court that the robbers stole her two neck chains, a pair of ear rings and N250.00 cash. Mrs. Beyioku, P.W.2, narrated in evidence that they stole her jewelries worth N4,000.00, N400.00 cash and her sons headphone cassette. Mrs. Beyioku was later invited at the police station where she identified the jewelries that were stolen from her flat. Mr. Biodun Awoyungbo, P.W. 3 in his evidence told the trial court that the burglars stole his wrist watch in his flat and N768 in cash. In his wife’s bedroom they removed a box of trinkets and N500.00 in cash. The three mobile policemen also gave evidence for the prosecution and described how the appellant was arrested.

The appellant on his part gave the only evidence for his defence. He told the trial court that on the day in question he was driving his father’s Passat car Reg. No. LA 1251 BD on his was to his shop at No.42B Tejuosho Road, Surulere. When he got at Defecto a saloon car hit him from the back. Three men came out of the car that hit him and began to argue with him. Later two mobile policemen came and directed them to move their cars to the side in order to allow the traffic to flow. e He was then asked about his vehicle’s particulars and thereafter they were all taken to Panti Police Station. At the police station one of the men that hit his car told the police that the Passat car was a stolen vehicle. The appellant told the court that the police searched his house. He denied robbing anybody on the 27th January, 1982.

At the close of the case for the defence Mr. Popopla, learned counsel for the appellant, addressed the court. Mrs. Alao, Senior State Counsel, who appeared for the State, asked for an adjournment to prepare for a reply. On the adjourned date Mrs. Alao brought an application under section 162 of the Criminal Procedure Law asking for permission to amend the charge. Mr. Popoola, after going through the proposed amendment raised no objection to the application. The learned trial judge granted the application and the charge was amended accordingly. In the amendment a fifth count of being in possession of a thing reasonably suspected of having been stolen was added to the charge. Thereafter the court recorded the following proceedings:

Registrar:- Please read the amended charge to the accused and take his plea.

Court:- Charge is read and explained to the accused person in Yoruba by the Registrar, a sworn interpreter and he pleaded as follows:-

1st count