Semiu Afolabi 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 Sodeke J. of the High Court of Justice, Abeokuta, Ogun State in Charge No. RFT/41/97 – ATT. GEN. OF OGUN STATE V. SEMIU AFOLABI delivered on the 28th April, 1999, wherein the Appellant was convicted and sentenced to death on a two count charge of (1) Conspiracy to commit a felony to wit: Armed Robbery contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990; (2) Robbery contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap 398) Laws of the Federation of Nigeria 1990.

The Appellant was alleged to have, on or about the 9th September 1995 at Akute Village in Sango Ota, Ogun State conspired with others now at large to rob one Rasaki Usman of his Suzuki Motorcycle Model 120 with Registration Number OD 7339 K valued at N32,000.00 and a sum of N70,000.00 being armed at the time with offensive weapon to wit: bottle and thereby committed the offence of Armed Robbery. The Appellant had denied the charge, submitting that he was at Gogo bus stop a distance of about 2 km from Akute on the day in question when he overheard people shouting ‘thief’, ‘thief’ and what he knew next was his arrest as the said thief of the Suzuki Motorcycle.

Four witnesses testified for the prosecution while the accused/Appellant testified in his own defence. Exhibits A-D were tendered in the court below. After trial and addresses of counsel, the learned trial Judge in a considered judgment convicted and sentenced the accused/Appellant on the two count charge, having found him guilty on both counts. It is against this conviction and sentence that the Appellant has appealed to this Court by his Notice of Appeal at pages 44-47 of the record of appeal which has the following Grounds viz:

GROUND 1

That the trial Judge erred in law in convicting the Appellant of the offence of Armed Robbery and sentenced him to death when the ingredients of the offence of Armed Robbery were not proved at all.

GROUND 2-

The learned trial Judge erred in law in convicting the Appellant of the offence of Armed Robbery when he failed to resolve the issue of the proper identification of the Appellant.

Three issues have been distilled by the Appellant for the determination of this Court the identity of the Appellant in this case.

(2) Whether the learned trial Court was right in holding that the prosecution proved a case of armed robbery against the Appellant beyond reasonable doubt.

(3) Whether the learned trial Judge did not exceed his jurisdiction in sentencing the Appellant to death having found that the prosecution failed to prove the existence of the offensive weapon mentioned in the charge.

These issues are contained in paragraphs 4.01-4.03 at page 3 of the Appellant’s Brief of Argument dated the 1st June, 2009 and filed on the 2nd June, 2009 but deemed properly filed and served on the Respondent on the 3rd June, 2009 following the grant by this Court of a motion on Notice dated the 1st June, 2009 and filed on the 2nd June, 2009 brought pursuant to Order 7 Rule, 10(1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court for an order to extend time within which the Appellant/Applicant may file his Brief of Argument and to deem the Appellant’s Brief of Argument already filed and served as having been properly filed and served. This Brief of Argument was, on the 25th January 2010 when this appeal came up for hearing adopted and relied Upon by Olakunle Agbebi of Counsel for the Appellant as the Appellant’s argument in this appeal.

The Respondent has for its part formulated from the Grounds of Appeal, the following sale issue for this Court to determine

‘Whether the prosecution proved the offence of conspiracy and armed robbery against the accused/Appellant beyond reasonable doubt.’