Shehu Usman Kwali V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA HASSAN ALKALI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Kwara State High Court of Justice Ilorin delivered on the 21st day of December, 2012 by Hon. Justice H.O. Ajayi in which judgment the appellant was convicted and sentenced to 14 years imprisonment for the offence of attempted robbery punishable under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation, 2004.

The appellant and one Muhammed Mama Yalia were charged before the High Court of Justice Kwara State sitting at Ilorin for the offences of criminal conspiracy and armed robbery contrary to sections 6(6) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Laws of the Federation of Nigeria 2004.

The appellant and one Muhammed Mama Yalia were in court from the beginning to the end of the trial. Each court of the charge was read, translated into English Fulfulde and vice versa. The appellant and other Muhammed Mama Yalia pleaded not guilty to the charge.

COUNT ONE
That you Shehu Musa Kwali and Muhammed Mamah Yalia sometimes in June, 2011 at Lata junction, Kwara State within the jurisdiction of this Honorable court conspired to commit an illegal act to wit rob one Alhaji Abubakar Mai-Arewa of the sum of N650,000.00 and you thereby commit an offence punishable under section 6(B) of the Robbery and Firearms Act Cap. R 11 Laws of the Federation of Nigeria 2004.

COUNT TWO
That you Shehu Musa Kwali and Muhammedu Mamah Yalia sometimes in June, 2011 at lata Junction, Kwara State within the jurisdiction of this Honorable Court robbed Alhaji Abubakar Mai-Arewa of the sum of N650,000.00 and you thereby commit an offence punishable under section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R 11 Laws of the Federation of Nigeria 2004.

Five witnesses testified for the prosecution. Twenty-One wrap of weeds suspected to be Indian hemp and one Cutlass and also the extra-judicial statements of the appellant to the police were marked as exhibit. At the close of the defence written addresses were filed by counsels on both sides.

In convicting the appellant, the trial court said inter alia thus-:

“I am of the view that prosecution has not proved its case of armed robbery beyond reasonable doubt and thus the two accused persons cannot be convicted for armed robbery. I am however of the view that the prosecution has proved the offence of attempted robbery having testified that there was robbery that the two accused persons participated in the robbery. The two accused persons are hereby convicted for the offence of attempted robbery punishable under section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Laws of the Federation of Nigeria 2004.”

Sentence. The court hereby sentenced them to a prison term of 14 years each with no option of fine but hereby orders or deducts the two years spent while awaiting trial; from the said 14 years, thus they will have 12 years each, sentence to run concurrently.
Dissatisfied by the judgment, the appellant has lodged the instant appeal against his conviction and sentence.

Notice of appeal containing seven grounds of appeal dated and filed 7/3/2013. Appellant’s brief of argument was settled by Abdulwahab Bamidele Esq. He adopted the said brief as the appellant brief of argument in this appeal and urge the court to allow the appeal, set aside the judgment of the trial High court, order that the appellant be discharged and acquitted of the offences of criminal conspiracy, and attempted robbery.

Parties to this appeal exchanged their respective briefs in accordance with the Rules of the court.

The respondent’s brief of argument was settled by Kamaldeen Ajibade Esq. Hon. Attorney General and Commissioner for Justice Ministry of Justice Ilorin. He adopted the said brief as Respondent’s brief of argument in this appeal and urge the court to dismiss the appeal, affirm the judgment of the court below.
On behalf of the appellant, the learned counsel raised two issues for determination out of seven grounds. The issues read as follow:

ISSUE 1
Whether the defence of alibi raised by the appellant was properly investigated or investigated at all by the police and whether the lower court could in the circumstances of this case rightly conclude that the defence of alibi did not avail the appellant.