Sunday Azogor V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is in respect of a Criminal matter in which the appellant Sunday Azogor was convicted and sentenced for unlawful possession of firearms. At the trial in the lower court, the appellant initially faced a five count charge which was later amended to a six count charge.

Count 1 was conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11, Laws of the Federation 2004; Count 2 was for Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act; Count 3 was also for Armed Robbery; same for counts 4 and 5; count 6 was for unlawful possession of firearms contrary to section 2(3) of the Robbery and Firearms Act (Special Provisions Act).

The offences with which the appellant was charged were as stated in the particulars of offence in the Information filed against him and others at large on or about the 21st day of May 2004 after Odogbolu Junction along Sagamu/Benin Expressway, Odogbolu in the Ijebu ode Judicial Division of the Ogun State High Court.

As noted by the trial judge in his judgment at page 75 of the Record of Appeal, the prosecution conceded that there was no evidence to sustain counts 2-5 which alleged armed robbery. The trial judge therefore dismissed the charges in respect of those counts and also discharged and acquitted the appellant in respect of the said charges.

The charge of conspiracy was also held as not proved. However, as earlier noted, the trial court convicted and sentenced the appellant for unlawful possession of firearms. The sentence was 14 years imprisonment.

Dissatisfied with the conviction and sentence, the appellant appealed against same on three grounds as shown in the Notice of Appeal filed on 15/4/2011. The grounds and particulars of the grounds are as follows:

1. The learned trial judge erred in law when he convicted the appellant for the offence of unlawful possession of firearms when the prosecution has failed to prove the commission of the crime beyond reasonable doubt and thereby came to a decision which has occasioned a grave miscarriage of justice.

Particulars

i. The prosecution failed to call Inspector Linus Ojinkeye the escort of the alleged luxurious bus that was attacked and Simon Nnebo, the driver of the bus, both of whom were eye witnesses to the alleged robbery attack.

ii. Neither the Inspector Linus Ojinkeye nor any member of the ‘A’ Police Patrol team from Odogbolu Division and also Obalende Division who confronted and had encounters with the armed robbers was called as witness by the prosecution notwithstanding the fact that they were both vital witnesses to the

prosecution’s case.

iii. None of the passengers of the bus that was robbed and who made statements to the police was either called as witness or had his statement to the police tendered.

iv. The Statement of John Abu whom the police claimed that the appellant led them to arrest, was not tendered at the trial.

v. None of the persons from whom the weapons recovered were seized by the armed robbers identified any of the alleged weapons as theirs.