Umoru Usufu V. The State (2006)

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PAUL ADAMU GALINJE, J.C.A.

The appellant herein and two others were arraigned before the Criminal Division of the High Court of Lagos State charged with conspiracy to commit robbery and armed robbery contrary to sections 403(A) and 402(2)(a) of the Criminal Code Law, Cap. 32, Laws of Lagos State of Nigeria, 1994 respectively. The two others are Sumaila Sokoto and Danladi Abdullahi.

The particulars of the offence for which the appellant and the two others were charged are that on or about the 12th day of September, 1981, the appellant and the two others conspired with others still at large to rob one Mrs. Rhoda Atiati and in furtherance of that conspiracy did rob the said Rhoda Atiati of the sum of two hundred naira (N200.00) while armed with offensive weapons to wit; cutlass and knives.

In order to prove its case, the prosecution called two witnesses and tendered in evidence, the extra judicial statements of the three accused persons which were admitted as exhibits A, B and C. The appellant and the two other convicts gave evidence in their respective defence and called no additional evidence.

After the close of the case for both parties, addresses were taken and in a considered judgment, the learned trial Judge, Justice A. Desalu convicted each of the accused persons as charged and sentenced each to 21 years imprisonment for the 1st count and to death by hanging on the 2nd count.

It is against the judgment and conviction aforesaid that this appellant, Umoru Usufu has brought this appeal. The notice of appeal which is dated 4th April, 2003 contains six grounds of appeal which read as follows:

“1. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting Umoru Usufu (the 2nd accused/appellant) for the offence of conspiracy without any credible evidence showing the intention and the agreement to conspire between the 2nd accused/appellant and the 1st and 3rd accused/appellants.

2. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting the 2nd accused/appellant of the offence of conspiracy and armed robbery solely on the evidence of PW1, which was manifestly unreliable, contradictory and uncorroborated.

3. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in failing to resolve every doubt created in the mind of the court in favour of the accused/appellants thereby convicting the 2nd accused/appellant of the offence of conspiracy and armed robbery.

4. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in failing to consider and uphold the defence of alibi of the 2nd accused/appellant without the prosecution showing evidence of investigation of same and without any evidence of the prosecution discrediting same.

5. The learned trial Judge of the Lagos State High Court, Criminal Division, erred in law in convicting the 2nd accused/appellant without a proper identification of the 2nd accused/appellant.

6. The learned trial Judge erred in law in convicting the 2nd accused/appellant when the prosecution failed to prove the offences as charged beyond every reasonable doubt as required by law.”

In line with the relevant rules of this court, briefs of argument were filed and exchanged and the appeal came up for hearing on the 5th of October, 2006. Mr. Ogwemoh, learned counsel for the appellant identified the appellant’s brief of argument which is dated 11th April, 2006. He adopted and relied on the argument contained therein and urged this court to allow the appeal. Mrs. Oluwole, learned Assistant Director of Public Prosecution, Lagos State Ministry of Justice who appeared for the state also adopted the respondent’s brief of argument of 3rd August, 2004 and urged this court to dismiss the appeal and affirm the decision of the lower court.

From the six grounds of appeal, Mr. Ogwemoh, learned counsel for the appellant distilled three issues for the determination of this appeal. These issues which are set out at page 3 of the appellant’s brief of argument read as follows: