Sumaila Sokoto V. The State (2006)

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ISA AYO SALAMI, J.C.A.

In the High Court of Lagos State, in the Ikeja Judicial Division, the appellant Sumaila Sokoto was charged along with two others for the offences of conspiracy to commit armed robbery as well as armed robbery contrary to sections 403 A, 402 (a) of the Criminal Code Law, Cap 31 of the Laws of Lagos State of Nigeria, 1973.

In the course of the trial, the prosecution called two witnesses, the person allegedly robbed and the investigating police officer. Each of the three accused testified on his own behalf. Thereafter, learned counsel for the prosecutions and the accused addressed the court. The learned trial judge, in his reserved and considered judgment, found the accused persons guilty and accordingly convicted them. Learned trial judge sentenced them to a term of twenty-one years for conspiracy and to death by hanging for robbery. The accused persons being dissatisfied with the conviction and sentence appealed to this court. The appeal of the third accused, Danladi Abdullahi v. The State, CA/L/274/02 in a judgment delivered on 5th July, 2004 resulted in his discharged and acquittal. I intend to return to this point later in the course of this judgment.

The appellant in the instant appeal was convicted on 26th day of April, 1985 in the High Court of Lagos State. The record of appeal which was by way of departure from the Rules, granted on 6/11/2003, does not carry any notice of appeal. The appellant however filed a notice of appeal on 9th May 1985 containing four grounds of appeal and, with leave of the court, filed five additional grounds.

Briefs of argument were filed and exchanged in accordance with the practice and procedure of this court’s Order 6 rules 2 and 4. in the appellant’s amended brief, the following issues were identified as calling for consideration and determination –

“(1) whether or not any evidence exists on the record capable of sustaining a finding of guilty in respect of the offence of conspiracy to commit robbery?

(2) whether the prosecution discharged the burden of proof imposed upon him to prove beyond reasonable doubt that the accused persons committed the offence of armed robbery?

In the respondent’s brief settled by Bola Okikiolu-Ighile (Mrs) the two issues framed in the appellant’s brief were set down ippissima verba. In neither formulations were the grounds of appeal from which the respective issues derived were stated. The parties, particularly the appellant, failed to relate the ground or grounds of appeal to any of the two issues distilled in this appeal. The sources of the issues are consequently shrouded in mystery, contrary to the express provisions of Order 6 r3 (1) of the Court of Appeal Rules, 2002, which states thus –

“3 (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view the issues arising in the appeal as well as amended or additional grounds of appeal.

(underlining mine)

The provisions respectfully are not cosmetic nor discretionary. It is mandatory; nevertheless most of our counsel comply with it more in breach than in compliance. The appellant having neglected, refused or failed to relate the grounds of appeal to the issues, he is deemed to have abandoned them. The ground ought to have been struck out and the appeal dismissed but the respondent took no objection to the appeal.

Apart from this inadequacy, the appellant canvassed several issues ranging from want of evidence, conflicting evidence, failure to call material witnesses, standard of proof to alibi under these two issues. Clearly this is not the intendment and purport of the provisions of Order 6 r 3. the purpose is for each issue to emanate from a ground or grounds of appeal which are related so that each issue can be treated together. It is not the intention of the rule to lump everything together in the manner, Mr. Onigbanjo has done and thereby creating a muddle. This is a criminal case especially that of a heinous crime such as armed robbery which is punishable by death otherwise the brief would have been struck out and the appeal dismissed summarily.

The succinct facts of the case is to the effect that on the 12th day of September, 1981, at about 7.30 p.m., the victim, Mrs. Rhoda Atiati who, incidentally was the first prosecution witness in the company of three Togolese was on her way home from work near Mile 2 when she was attacked by ten men who were alleged to be armed. She shouted for help which shouting attracted the attention of two Hausa men by name Ibrahim and Dan Yaro who came to assist her but they were unfortunately machete and beat a retreat. Her assailants striped her and made away with N=200.00 the money she wrapped in an handkerchief tied to her pants. After she was extricated she ran home for dear life. She remained at home until the following day when the head of the hausa community, Alhaji Bala, invited and took her to the Festac Police Station where the accused persons were being detained. At the time of the robbery. Mrs. Rhoda Atiati said she recognized one of the robbers but did not call his name at the material time out of abundance of caution because the men were armed with knives and could harm her.

At the Festac Police Station, the victim was able to identify the accused persons. The appellant and the second accused were apprehended together at about 9 p.m. of the night of the incident whilst the third accused was picked up at a different location and time. Significantly enough, the appellant and second accused whose appeal is also pending in this court claimed that they met the third accused for the first time at the Festac Police Station after the incident and their respective arrests.