Sunkanmi Adebesin Vs The State (2014)

LAWGLOBAL HUB Lead Judgment Report

NWALI SVLVESTER NGWUTA, J.S.C.

Appellant was charged with, tried and convicted of, the offence of attempted robbery contrary to the provision of S.2 (1) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended). The Presiding Judge, Shoremi, J (as His Lordship then was) sentenced the appellant to life imprisonment on the 21st day of June, 2005.

Briefly, the Respondent’s case in the trial Court is that the appellant, on 26th September, 2002 by 8.00 p.m. came into the Video rental shop in the Saje Maternity neighbourhood of Abeokuta. Appellant came into the shop with a toy gun and a mask and assaulted the PW1 in an attempt to rob him. Appellant on the other hand said he went to the shop to collect the sum of N250.00 he earlier paid to an unidentified person for a video cassette. He admitted there was a fight between him and the sales boy, the PW1 and that the fight attracted the PW2 who joined in beating him and the PW3, the husband of PW2 and others. He denied the charge of attempted robbery of PW1.

To prove its case, the prosecution called five witnesses. The appellant took the stand in his defence. He said he went to the video shop to recover the fee of N250.00 he paid, that he was abused by the PW1. He said he slapped the PW1 and a fight ensued between the two of them, attracting other people to the scene. He denied wearing a mask, He was not issued a membership card nor was he issued a receipt for the money he paid. He claimed he made his statement under duress and that he did not commit the offence with which he was charged.

He called one other witness, the principal Registrar of the Chief Magistrates Court, Abeokuta, who came under subpoena to tender a certified true copy of Charge No.MA/721C/02 which was admitted and marked Exhibit F. At the end of the trial, the learned trial Judge, Shoremi, J, considered the evidence adduced by each side and addresses of learned Counsel for the parties and came to the conclusion that:

“The accused person to me is not a witness of truth. His evidence in Court is an afterthought.”

His Lordship convicted, and sentenced, the appellant to life imprisonment.

Appellant, being aggrieved, challenged his conviction and sentence before the Court of Appeal, Ibadan Judicial Division.

Fasanmi, JCA, who authored the opinion of the Court below held that:

“From the evidence on record, the weapon found with the appellant during the time of the attempted robbery was a toy gun which broke into two when 1st PW and the appellant were dragging with themselves.”

Relying on Section 15 (1) of the Robbery and Firearms (Special Provisions) Act 1990 for the definition of offensive weapon, he held that the available facts proved attempted robbery simpliciter since a toy gun does not qualify as offensive weapon.

The Court below allowed the appeal in part, set aside the conviction for attempted armed robbery and imprisonment for life in place of conviction for attempted robbery simpliciter and sentence of 14 years imprisonment, effective from the date of judgment of the trial Court, 21st June 2005.

Not yet satisfied, the appellant challenged the judgment of the Court below on three grounds contained in the notice of appeal filed in the Registry of the Court below on 21st April, 2010. I shall say more on the grounds of appeal in due course. Parties by their respective learned Counsel filed and exchanged briefs for argument.

In the appellant’s brief, settled by Olukunle Agbebi,, Esq, the following three issues were distilled from the grounds of appeal for resolution by the Court: