Sule Adamu & Ors V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kaduna State in Charge No KDH/KAD/105C/2006 delivered by Honourable Justice Gideon Isa Kuada on the 27th of June, 2008. The Appellants were arraigned before the lower Court on a two count charge of criminal conspiracy and armed robbery punishable under sections 6 and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.

They were alleged to have agreed among themselves to block the highway and to have robbed the convoy of the Commandant General of the Nigerian Defence Corps while armed with AK-47 rifles on the 13th of July, 2006 and during the course of which they killed two persons, Jonathan Osho and Alhassan Haruna and carted away the sum of N2 Million. The Appellants pleaded “Not Guilty” to the charge and the matter went to trial.

The Prosecution called three witnesses and tendered several exhibits in proof of its case while the Appellants called six witnesses, including the four Appellants, in their defence. At the conclusion of trial, the lower Court found the Appellants guilty on both counts and sentenced each Appellant to death by hanging by the neck. The Appellants were dissatisfied with the judgment and each of them caused individual notices of appeal, all dated the 13th of September, 2008, to be filed against it. Each notice of appeal contained six grounds of appeal.

In contesting the appeal before this Court, the Appellants filed a joint amended brief of arguments dated the 22nd of January, 2013 and it consisted of twenty-one pages and the joint amended brief of arguments was deemed properly filed by this Court on the 23rd of January, 2013. The Respondent filed a brief of arguments consisting of eighteen pages and dated the 12th of February, 2013 and it was filed on the 28th of February, 2013. At the hearing of the appeal on the 25th of June, 2013, Counsel to the Appellants and to the Respondent relied on and adopted their respective briefs of arguments.

In the brief of arguments, Counsel to the Appellants distilled two issues for determination and these were:

i. Whether the prosecution proved the three constituent elements of the offence of armed robbery against the Appellants beyond reasonable doubt to warrant their convictions and sentences.

ii. Whether the learned trial Judge was right to have convicted and sentenced the Appellants as charged on the basis of Exhibits 1, 1A, 2, 2A, 3, 3A, 4 and 4A, the extra judicial statements of each of the four Appellants.

Counsel to the Respondent similarly formulated two issues for determination in his brief of arguments and these were:

i. Whether Exhibits 1 – 4A, the confessional statements of the Appellants were wrongly admitted and acted upon by the trial Judge.

ii. Whether the trial Court was right to have come to the conclusion that the Appellants were properly identified by the first prosecution witness who was the victim of the robbery operation.

Reading through the processes filed in this matter, it is the view of this Court that the first issue formulated by the Appellants adequately covers the complaints of the Appellants in this appeal. This appeal shall be resolved on the basis of this singular issue.

Counsel to the Appellants prefaced his arguments with the provisions of section 36(5) of the Constitution on presumption of innocence and stated that where the prosecution alleges the commission of a crime such allegation must be proved beyond reasonable doubt. Counsel submitted that the prosecution must discharge this burden by proving every ingredient of the offence charged by credible evidence and that where, at the close of evidence, an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of a defendant and he shall be discharged. Counsel referred to the case of Mustapha Vs State (2007) 12 NWLR (Pt 1049) 637, amongst others. Counsel stated that to sustain a charge of armed robbery, the prosecution must establish that (a) there was a robbery or series of robbery; (b) the robbery or each of the robberies was an armed robbery; and (c) the defendant was one of those who took part in the robbery; and that the ingredients co-exist and are conjunctive not disjunctive and must thus be established together. Counsel referred to the case of Bozin Vs State (1985) 2 NWLR (Pt. 8) 465, amongst others.

Counsel conceded that, from the evidence led by the prosecution witnesses in the instant case, there was no dispute that there was a robbery on or about the 13th of July, 2006 along the Kwoi-Jos Highway in Jaba Local Government Area of Kaduna State and that the robbery was carried out with the use of dangerous weapons. Counsel stated that what was in dispute was whether the Appellants participated in the said robbery.