Sunday Adeyemo V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

The appellant along with two others was arraigned before the Oyo State High court, Ibadan Judicial Division on a two count charge as follows:

Statement of Offence

Conspiracy to commit 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 VoL. XXII Laws of the Federation of Nigeria 1990 as amended.

Particulars of Offence

Sunday Adeyemo (m), Ade Obasanmi (m), Akeem Yekinni (m) on or about the 4th day of July, 2003 at Aguloke Estate, Bembow, Apata, Ibadan in the Ibadan Judicial Division did conspire together to rob one Olabisi Bolaji Stephen of his valuable property.

Statement of Offence

Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 as amended.

Particulars of Offence

Sunday Adeyemo (m), Ade Obasanmi (m), Akeem Yekinni (m) on or about the 4h day of July, 2003 at Aguloke Estate, Bembow, Apata, Ibadan in the Ibadan ludicial Division whilst armed with firearms and offensive weapons to wit: gun, robbed Olabisi Bolaji Stephen of his Ericson G.S.M. handset and the sum of Fourteen Thousand, Five Hundred Naira (N14,500,00) cash.

They all pleaded not guilty to the charge. At a stage in the proceedings the charges were withdrawn against the 2nd accused, Ade obasanmi, who eventually testified for the prosecution as PW1. The prosecution called five witnesses and tendered exhibits. The appellant and the remaining accused, Akeem Yekinni testified on their own behalf and did not call any other witnesses. At the conclusion of the trial and after considering written addresses filed on behalf of the parties, the lower court, in a considered judgment delivered on 31/3/08 found them guilty on both counts. They were convicted and sentenced to death.

Being dissatisfied with the judgment the appellant filed a notice of appeal dated 16/4/08 containing five grounds of appeal. Pursuant to a motion on notice dated 25/5/09 the appellant sought and obtained leave to file an amended notice of appeal. The amended notice of appeal dated 25/5/09, which was deemed properly filed and served on 27/5/09 contains two grounds of appeal. In compliance with the rules of this court the appellant filed a brief of argument dated 25/5/09, which was deemed filed on 27/5/09. The respondent although duly served with the said brief failed or neglected to file a respondent’s brief within the time prescribed by the rules of this court. By a motion on notice dated 15/7/09 and filed on 24/7/09 the appellant sought and obtained leave of this court for the appeal to be set down for hearing on his brief alone.

At the hearing of the appeal on 3/11/2010, Olakunle Agbebi Esq., learned counsel for the appellant adopted and relied on the appellant’s brief and urged the court to allow the appeal. The following two issues were distilled from the two grounds of appeal contained in the Amended Notice of Appeal:

1. Whether the learned trial court was right in holding that the prosecution proved a case of armed robbery against the appellant beyond reasonable doubt?
2. Whether the prosecution properly established the identity of the appellant in this case?

It seems to me that the first issue above would adequately dispose of this appeal. Issue 2 is a factor to be considered in determining issue 1. The appeal shall therefore be determined on issue 1. The arguments in respect of issue 2 shall be considered under issue 1.