Odunayo Ajayi V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice Ekiti State presided by Justice E.O. Kowe delivered on the 27th November, 2007 convicting and sentencing the Appellant on count I, for conspiracy to commit armed robbery to 14 years imprisonment and on count III for armed robbery to death by hanging.

The Appellant along with two others who were discharged and acquitted were arraigned before the lower Court on 6 count charge of conspiracy to commit armed robbery and armed robbery punishable under Sections (5) (B) and 1(2) (A) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 as amended. The Appellant and the co-accused pleaded not guilty to the two counts of conspiracy and four counts of robbery.

The facts of the Prosecution’s case is that the Appellant conspired with two other co-accused persons to rob and did carry out a series of robberies armed with a gun and other dangerous weapons. Out of the 6 counts preferred in the charge against him and his two co-accused persons, the Appellant was convicted on counts 1 and 3 whilst his co-accused persons were discharged and acquitted by the trial Court of all offences. In proof of its case, the Respondent called a total of 5 witnesses. The 6th gave incomplete testimony. PW1, PW2 and PW4 being the persons whose homes were robbed by the Appellant and his co-accused persons, although none of these witnesses was at home at the time the Appellant and his co-accused persons robbed their respective homes. PW3 Mijinyaya Nasir a Superintendent of Police who arrested the Appellant.

He testified that he arrested the Appellant, not quite at the scene of crime but where he was hiding under a fowl cage at the next door compound, where he (PW3) recovered some weapons from under the car where the Appellant dropped them and thereafter handed them over to PW5, a Police Officer at the Police Station. PW5 Chidi Anthony, is the Investigating Police Officer, while PW6 CPL Gbadebo Omiranti who attempted to complete the evidence of the IPO, PW5.

At the conclusion of the prosecution’s case, the Appellant’s counsel made a no case submission which was upheld in respect of the two co-accused persons while the Appellant was asked to enter his defence.

The Appellant’s case on the other hand is a total denial of both charges of conspiracy and armed robbery.

At the conclusion of evidence and address by respective counsel, the trial Court in a considered judgment delivered on the 27th November, 2007 found the Appellant guilty of the offences of conspiracy and armed robbery in counts 1 and 3 and sentenced him accordingly to 14 years imprisonment and death by hanging.

Being dissatisfied with the decision of the trial Court, the Appellant appealed to this Honourable Court vide a Notice of Appeal, filed on the 10th December, 2007 upon 4 grounds of appeal. The grounds of appeal are hereby reproduced short of their particulars:

Grounds of Appeal

1. The learned trial Judge erred in law when it proceeded with the hearing of the charge of Armed Robbery against the Appellant in violation of the Appellant’s right to fair hearing.
2. The learned trial Judge erred in law when it rejected the defence of the Appellant and based the rejection on the extra judgment statement of the appellant which was tendered in evidence but rejected and was so marked.
3. The learned trial Judge erred in law when he convicted the Appellant on the charge of conspiracy to commit Armed Robbery having discharged the co-accused persons on the same account.
4. The entire judgment convicting the Appellant of counts 1 and 111 of the charge is against the weight of evidence.

By order of Court made on the 21st October, 2010, the Appellant filed an Amended Notice of Appeal on the 25th October, 2010 containing 4 grounds of appeal. The additional grounds of appeal are as follows:-

The learned trial Judge erred in law when he convicted the Appellant of Armed Robbery even though the prosecution did not prove the case of armed robbery against the Appellant beyond reasonable doubt.

2. The learned trial Judge erred in law when he convicted the Appellant of armed robbery without (first) presuming, pursuant to Section 149(d) of the Evidence Act, that evidence which could be but was not produced by the prosecution would, if produced, be unfavourable to the prosecution.
3. The learned trial Judge erred in law when he relied on the Appellants involuntary confessional statement to convict him even though same was not admitted in evidence and marked rejected after a trial-within-trial was conducted.
4. The learned Trial Judge erred in law when he convicted the Appellant of the offence of conspiracy to commit armed robbery, even though all his co-accused were charged including conspiracy to commit armed robbery.

Parties filed and exchanged briefs of argument. In the amended Appellant’s brief of argument settled by Segun Fowowe, Esq., deemed filed on the 13th January, 2011, learned Counsel distilled three issues for determination, namely:-

1. Whether the prosecution proved the offences of: (i) conspiracy to commit armed robbery and (ii) Armed robbery against the Appellant beyond reasonable doubt to warrant his conviction for the said offences.
2. Whether the learned trial Judge was right in law to rely on the Appellant’s involuntary confessional statement to convict him even though same was not before the court having been earlier rejected in evidence pursuant to a voir dire proceeding.
3. Whether the learned trial Judge was right to convict the Appellant of the offence of conspiracy to commit armed robbery, even though all his co-accused were discharged and acquitted of all charges including conspiracy to commit robbery.

The Appellant’s issues for determination as reproduced above, appears to have been formulated from the Appellant’s additional grounds of appeal, thus abandoning the original grounds of appeal. The original grounds of appeal are therefore deemed abandoned and accordingly discountenanced.