Oke Utuyorume V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of Lokulo-Sodipe J. of the High Court of Justice Abeokuta, Ogun State in Charge No. AB/9R/2001 – THE STATE V. OLUWASEYI SOWEMIMO & ANOR delivered on the 28th March 2006 wherein the Appellant Oke Utuyorume and one Oluwaseyi Sowemimo, were arraigned, tried, convicted and sentenced to death on a two count charge of conspiracy to commit the offence of armed robbery and armed robbery. The charge against the accused persons at the court below reads as follows:-

COUNT 1:

That you Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January, 2001 at Abeokuta in Ogun State conspired to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment, etc) Decree 1999.

COUNT 2:

That you Oluwaseyi Sowemimo, Oke Utuyorume and another still at large on or about the 4th day of January, 2001 at Abeokuta in Ogun State, while armed with gun robbed one Omowunmi Bakare of the sum of N418, 000:00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Cap 398 Laws of the Federation of Nigeria Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc.) Decree 1999.

They pleaded not guilty to the two count charge and the case went on to be tried in the course of which the prosecution called 4 witnesses and tendered a number of exhibits which will be dealt with at greater length later in this write up. The 1st accused person Oluwaseyi Sowemimo neither adduced any evidence in his defence nor called any witnesses. The 2nd accused Oke Utuyorume who is the Appellant in the present appeal testified in his own defence but called no witness. At the end of addresses for the prosecution and the defence, the learned trial Judge in a considered judgment delivered on the 28th March, 2006 already referred to, found the accused persons guilty of the two count charge and sentenced them to death by hanging. It is this judgment that is the subject of appeal by the convicted 2nd accused Oke Utuyorume.

The case for the prosecution in the court below was that on the 4th January, 2001, the Appellant Oko Utuyorume and Oluwaseyi Sowemimo (who was convicted with the Appellant) as well as Segun Ojo (now at large) went to the shop of one Omowunmi Bakare (who testified at the court below as PW1) who sells commodities at No. 33 Kuto Road pretending to be customers who wanted to purchase rice and as soon as they entered the Complainant’s Shop, they pulled out guns and demanded for money whereupon the Shop owner Omowunmi Bakare opened the drawer where she usually kept money and the accused persons made away with N418,000:00. When the Shop Keeper Omowunmi Bakare noticed that the Appellant and his two Comrades were no longer in site, she raised an alarm which attracted sympathizers who gave chase and caught up with two out of the three robbers who were arrested at the back of M.K.O. Abiola Stadium. A search of the persons of the accused resulted in the recovery of some of the money allegedly robbed and a toy pistol, spent cartridges and a locally made gun. The accused persons were taken to Ibara Police Station and later transferred to SARS Adatan. The Appellant and Oluwaseyi Sowemimo were arraigned on a charge of conspiracy to commit armed robbery and armed robbery which they both denied committing. The learned trial Judge after going through the facts and evaluation of the evidence led found the Appellant and Oluwaseyi Sowemimo guilty of the two count charge and sentenced them to death by hanging.

The convicted 2nd accused turned Appellant Oke Utuyorume filed a Notice of Appeal dated the 25th April, 2006 and filed same day which consists of seven grounds and is contained at pages 109 – 117 of the Record of Appeal. The said Grounds of Appeal are itemized hereunder shorn of particulars –

1. The learned trial judge erred in law in finding the Appellant guilty on the two counts, when the prosecution failed woefully to prove its case, that there was any armed robbery incident.
2. The learned trial judge erred in law in concluding that, the Appellant was part of the gang that robbed one Omowunmi Bakare of the sum of N418, 000:00 when there was no evidence to justify that conclusion.
3. The learned trial judge misdirected himself in law when he held that Appellant never testified to deny the claim of PW1 about robbery incident in her shop when on the record, there were pieces of evidence to the contrary which misdirection has occasioned a miscarriage of justice.
4. The learned trial Judge misdirected himself in law when he held that the 2nd Accused Person was arrested or caught when trying to escape during the commission of an offence and that the victim of the crime was present and positively identified him, and as such, there is no need for the formality of holding an identification parade.
5. The learned trial Judge erred in law when he held that the discrepancies in the testimonies of PW1 was not material.
6. The learned trial Judge erred in law when he held that it is the defence that ought to call certain material witnesses not called by the prosecution.
7. Judgment of the trial Judge is unreasonable and cannot be supported having regard to the evidence.

Out of the seven grounds of appeal contained in the Notice of Appeal, the Appellant has in his Brief of Argument dated the 3rd March, 2008, filed on the 6th March, 2008 but deemed filed on the 30th June, 2008 following the grant by this Court of a motion on Notice dated the 6th March, 2008 and filed same day brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules 2007 for extension of time to file Appellant’s Brief of Argument and to deem the Appellant’s Brief of Argument already filed on the 6th March, 2008, as properly filed and served, formulated the following four Issues for the determination of this Court –

1. Whether the prosecution proved the case of armed robbery against the Appellant beyond reasonable doubt.
2. Whether the identity of the Appellant as one of the perpetrators of the crime charged was proved beyond reasonable doubt.
3. Whether the prosecution proved the offence of conspiracy against the Appellant beyond reasonable doubt.
4. Whether the supposed confessional statement made by the Appellant was probable having regard to the circumstances of the case.

These Issues are contained in paragraph 3.00 at page 3 of the Appellant’s Brief of Argument.

The respondent for its part has also distilled four Issues from the same Notice and Grounds of Appeal in the Respondent’s Brief of Argument dated the 16th April, 2009, filed on the 17th April, 2009 but deemed properly filed on the 12th January, 2010. In paragraph 3.00 at page 2 of the Respondent’s Brief of Argument, the Respondent stated as follows:

“Having regard to the grounds of appeal filed by the Appellant the Respondent adopts the four Issues formulated by the Appellant in his Brief of Argument with slight modifications: –

(i) Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charge of armed robbery against the Appellant beyond reasonable doubt.