Sunday Iyaro V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

Sunday Iyaro (the appellant) and Godwin Nnawalue were jointly charged with Robbery and conspiracy to commit Robbery contrary to Sections 402 (2) and 403 respectively of Cap 32, Laws of Lagos State, They pleaded not guilty to both charges.

Witnesses were called by the prosecution to prove the charges as stipulated in Section 137(1) of the Evidence Act. Both accused elected to give evidence on oath and also called witnesses – two for the 1st accused and one for the 2nd accused.

At the end of the trial, the learned trial judge, Kotun, J. Considered the evidence adduced and made the following findings:

“Having regard to S.7 of the Criminal Code and the evidence placed before me, the 1st Accused and 2nd Accused are criminally liable for the act of armed robbery committed by the five men who were armed with daggers when they attacked the 1st P.W. and 2nd P.W. in taxi No.LA 3483 AL at Mile 2 on the 7th November, 1982.I found that the prosecution has proved the case against the 1st Accused and 2nd Accused beyond reasonable doubt on Counts one, two and three of the charges.”

He then passed the following sentence on each of the accused:

“1st Accused: 1st COUNT: Twenty-one years IHL”

“2nd Accused: 1st COUNT: Twenty-one years IHL.”

“The sentence of this court upon each and every one of you the 1st Accused and 2nd Accused persons on each of the second and third counts of the charge that you have been found guilty is that each and every one of you be hanged by the neck or executed by firing squad until you be dead and may the Lord have mercy on your souls.”

The two convicts appealed to the Court of Appeal, Lagos, against conviction. And in a majority judgment of 2 to 1, the appeal of the 2nd accused was allowed while that of the 1st accused was dismissed unanimously. It is against the dismissal of his appeal that the appellant has now appealed to this Court; and henceforth he will be referred to as the appellant.

Only one ground of appeal was filed and argued for and on behalf of the appellant which reads:

“The learned Justices of the Court of Appeal erred in law and misdirected themselves in affirming the conviction of the appellant for armed robbery when there is no evidence in law to support the verdict for armed robbery.

PARTICULARS OF ERROR AND MISDIRECTION

1. The appellant was only a driver of the taxi with the victims, that is, P.W.1 and P.W. 2 as passengers.
2. The appellant was neither armed nor did he take part in the robbery of the victims.
3. There is no conspiracy between the appellant and the armed robbers, nor with anyone at all.
4. That the appellant drove the taxi and stopped to pick up another passenger and that he was present when the victims were robbed would not prima facie render him participis criminis.”

In support of this ground brief of arguments was filed by learned senior Counsel for the appellant. In reply thereto the respondent also filed brief. The briefs were further elaborated upon orally by the learned Counsel respectively.