Nurudeen Babatunde V. The State (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.

This is an appeal against the judgment of Osun State High Court of justice sitting at Ikirun Judicial Division delivered on 11th day of July 2013. The Appellant was arraigned before the Court on a three count charge of conspiracy, armed robbery and unlawful possession of firearms with others at large under the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria, 2004. The charge read thus:

1. Conspiracy contrary to Section 6(b) and punishable under Section 1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria 2004.
2. Armed Robbery contrary to and punishable under Section 1(1) and 2(a) of the Robbery and Firearms (Special Provisions) Act, CAP R11 Laws of the Federation of Nigeria, 2004.
3. Illegal possession of firearms and contrary to and punishable under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria 2004.

Upon arraignment, the Appellant pleaded not guilty to the three count charge. To prove the

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guilt of the Appellant, the prosecution called two witnesses and tendered one exhibit marked Exhibit A. Appellant defended himself through his oral evidence. He did not call any witness.

The case of the prosecution against the Appellant was that the Appellant with others at large on 12/3/2008 at about 3.00 a.m. forcefully gained entry into the house of one Adewale Ajala after the entrance door had been broken at No. 13, Okelba Area, Ikirun, Osun State, armed with guns, cutlasses and knives and demanded the sum of N600,000.00 which the robbers insisted they were aware that their victim received that sum in the afternoon. The victim of the crime who is PW2 said that the robbers robbed him of the sum of N120,000.00 and three handset phones.
According to PW2, the robbers were about to rape his sister but for the early morning call for Muslim morning prayers which made them took their leave. The Appellant’s case was that he did not participate in any armed robbery. That on 12/3/2008 he was not at Oke-Iba, Ikirun but was at Ilorin in Kwara State.

At the end of the evidence of parties, respective learned counsel addressed the Court after which the

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learned trial Judge in a considered judgment delivered on 11th July, 2013 discharged and acquitted the Appellant on count No. 3 but convicted him on count nos. 1 and 2 respectively. The Appellant, dissatisfied with his conviction and sentence, appealed to this Court vide a Notice of Appeal dated and filed 30/7/2013 containing four (4) Grounds of Appeal.
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To argue the appeal on 9/3/2016, Mr. T. S. Adegboyega, learned counsel for the Appellant who filed Appellant’s Brief of Argument dated and filed on 5/5/2014 raised three issues for determination of this appeal thus:
1. Whether the failure of the trial Court to conduct trial-within-trial before admissibility of Exhibit “A”, the confessional statement did not occasion a miscarriage of justice. (Ground 1 and 2)
2. Whether the prosecution proved its case against the Appellant before the trial Court sufficient enough to sustain the conviction and sentence of the Appellant for the offence of armed robbery. (Ground 3)
3. Whether the defence of alibi is available to the Appellant, if so whether the failure of the learned trial Court to consider the defence at all occasioned miscarriage of justice.

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(Ground 4)

Mr. Dapo Adeniyi, Director of Public Prosecution, Osun State settled the Respondent’s Brief of Argument which was dated 30/1/2015 but filed on 18/2/2015 but deemed properly filed and served on 9/3/2016.

In the said Brief of Argument, learned counsel for the Respondent raised three issues, thus:
1. Whether failure of the trial Court to conduct trial-within-trial before admitting Exhibit ‘A’ (the confessional statement) is proper in law.
2. Whether the case of the prosecution was proved beyond reasonable doubt.
3. Whether the defence of alibi will avail the Appellant in the circumstances of this case.