Semiu Afolabi V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The Appellant in this appeal was arraigned before the High Court of Justice of Ogun state at Abeokuta Judicial Division on, two count charge of, conspiracy to commit armed robbery and armed robbery contrary to Section 5(a) and 1(2)(a)) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendment etc) Act 1999.

On pleading not guilty to the two counts, the prosecution proceeded to prove its case by calling 4 witnesses. In the course of the trial, exhibits comprising the Appellants statement to the Police recorded from him in the course of the investigation of the case and the stolen Suzuki Motor Cycle recovered from the Appellant being the property the subject of the act of armed robbery were tendered and received evidence. At the close of the prosecution case, the learned trial Judge after hearing the Appellant in his defence and the respective addresses of the learned Counsel for the prosecution and the defence, in a well considered judgment delivered on 28th April, 1999, found the Appellant guilty of the two counts charge and convicted the Appellant accordingly. The Appellant was consequently sentenced to death.

Aggrieved by the judgment of the trial Court, the Appellant then appealed to the Ibadan Division of the Court of Appeal which after hearing, the appeal, in its judgment delivered on 25th February, 2010 allowed the appeal in part by substituting the conviction of the Appellant for conspiracy and armed robbery with that of conspiracy and simple robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act CAP 398, Laws of the Federation of Nigeria 1990 and sentenced the Appellant to 21 years imprisonment for each of the two counts to run concurrently. Part of the judgment of the Court below and the reasons therefore at pages 108 – 109 of the record reads –

“I do not have any doubt that the prosecution has successfully proved that there was conspiracy to commit the offence of robbery (sic) if not of armed robbery. The learned trial Judge clearly exceeded his jurisdiction by convicting and sentencing the Appellant for conspiracy to commit Armed Robbery and Armed Robbery having found, inter alia that the prosecution failed to prove the existence of the offensive weapon mentioned in the charge upon which the Appellant had taken his plea. The learned trial judge interestingly found that even if such a weapon existed (bottle mentioned in the charge) it was never used in inflicting injury on PW1 or else PW4 would have been required to take PW1 to the hospital. Where the evidence adduced by the prosecution supports the conviction for a lesser offence than that for which an accused is charged an Appellate Court can convict for such lesser offence.

I find the Appellant not guilty of the offence of conspiracy to commit Armed Robbery and Armed Robbery but guilty of lesser offence of conspiracy to commit Robbery and Robbery.”

The Appellant still not satisfied with the reduction in the gravity of the offences and sentence by the Court of Appeal, is on a further appeal to this Court by his Notice of appeal containing 9 grounds of appeal from which the learned Counsel to the Appellant in the Appellant’s brief of argument identified the following 5 issues for the determination of the appeal.

(i) Whether all the ingredients of robbery simpliciter for which the lower Court convicted the Appellant were present and proved beyond reasonable doubt (grounds 1, 2 and 8).

(ii) Whether the lower Court was right in upholding the learned trial Judge’s holding that the Appellant made confessional statement relied upon by the said learned trial Judge in convicting him voluntarily (grounds 3 and 5).

(iii) Whether the lower Court was right in its holding that identification parade was unnecessary even though the Appellant was never arrested while committing the crime (ground 4).

(iv) Whether by holding that the term of 21 years sentence imposed on the Appellant should start from the day of conviction and sentence on 28th April, 1999 as opposed to the day of arrest on 9th September 1995, does not result in any miscarriage of justice on the Appellant, moreso when he was never granted bail from the time of his arrest to the time of his conviction (ground 7).

(v) Whether the lower court could safely convict the Appellant of the offence of conspiracy from the legally inadmissible confessional statements allegedly made to 2PW and in Exhibit A and A1 (grounds 5 and 9).

In the Respondents brief of argument deemed filed on 28th March, 2013, the issues as distilled by the learned Counsel to the Appellant from the grounds of appeal as contained in the Appellant’s brief of argument, were duly adopted by the learned Counsel to the Respondent.

The case against the Appellant as presented at the trial High Court by the prosecution reveals that on 9th September, 1995 PW1, a commercial motor cycle operator while riding his Suzuki Motor Cycle towards Akute was stopped by the Appellant in company of another person. The Appellant and the other person attacked PW1 with a broken bottle and seized the motor-cycle and the sum of N700.00 from PW1. On alarm being raised, another motor cycle operator came to the aid of PW1 and chased and stopped the Appellant who was trying to escape with the motor cycle in company of the other person. On being forced to stop, the accompanying person escaped leaving the Appellant with the stolen motor cycle which was consequently recovered from the Appellant and tendered and received as exhibit in the course of the trial.