Usman Tonge V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ogun State High Court of Justice in charge No: AB/12R/11 delivered on the 17th of March 2014.

The Appellant and others at large were on 22nd of January 2013 arraigned on a three count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6(b) and 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004. Appellant pleaded not guilty to all the counts.

At the trial, the Respondent called five witnesses while the Appellant testified in his own defence. At the end of the trial, the Court found that the charges of conspiracy to commit armed robbery and armed robbery were proved against the Appellant beyond reasonable doubt. Consequently, the Appellant was convicted on the charges and sentenced to death by hanging.

The summary of the prosecution?s case was that there were series of armed robbery incident at Saje area in Abeokuta on 1/10/2009. Memunat Bodunrin (PW1) and Alhaji Gbadamosi Kazeem Ademola (PW4) were in their respective houses between 2am

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? 4am when the Appellant and three others forced their way into their houses with guns and dangerous weapons in their possession. After ransacking PW1 and PW4?s houses, the armed robbers including the Appellant made away with valuables like money (Naira and Pounds sterling) and jewelry. An alarm was raised by PW1 and her husband (Akeem Bodunrin) which attracted neighbours. Three of the armed robbers scaled over the fence. While the Appellant was about to do same, he was caught and taken to the Police Station.

Appellant?s case is that he was a cattle rearer and stayed in Ibafo but arrested in Abeokuta. On the day he was arrested, he went to Abeokuta from Ibafo at about 4.00 pm to inform his in-law that his wife just delivered a baby. The vehicle he was in broke down on the way and the passengers only got to Abeokuta at about 9.00pm. He went to a mosque to pray and at past 9.00pm, he went to a business centre to make a call to one Mallam Nasir to meet him at Round but Nasir requested that he should take a motor bike and meet up with him.

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Appellant further alleged that he did not get a motor bike and was walking along the road. He then

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followed a pathway when he met some people who questioned him about his movement. He informed them that he was on his way to Rounder. He was informed by the people that the place was blocked and that there was robbery some months back. Appellant requested one that could speak Hausa language to show him how to get to the Rounder. But at that moment he was rough handled, his nylon bag taken and his leg broken. He added that passersby asked questions on what was happening but the Police was called to arrest him.

Dissatisfied with the decision of the trial Court, Appellant filed his notice of appeal on the 15th of May 2014. In compliance with the Rules of this Court, the record of appeal was deemed properly compiled and transmitted on 10/5/16. Appellant?s brief of argument was filed on the 10th of May 2016 and distilled two issues for determination. The issues are stated hereunder:

a. Whether the trial Court was right in holding that the prosecution had proved the charges against the Appellant beyond reasonable doubt in spite of the discrepancies in the evidence adduced before it by the prosecution. (Distilled from Grounds 1, 2, 4, 5, and 7)