Yusuf Akeem V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State delivered by D. I. Kolawole J. on 21/1/2013.

The Appellant was charged in an information that contains a lone count of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (special provisions) Act, cap. R. 11, Vol. 14 Laws of the Federation 2004. The particulars of the offence charged were that on the 2nd January, 2011 at Orita Obele Estate, Akure the Appellant robbed Oguntoyinbo Yemi of her jewelries and monies while armed with dangerous weapons.

The case for the prosecution is that apart from the jewelries and money the Appellant also robbed Mrs. Oguntoyinbo (PW2) and her daughter their hand sets. He (the appellant) also caused the daughter of PW2 to lead him and knocked on the door of their neighbor PW3 as a ploy to also rob PW3. The hand set of the PW2’s daughter was an ITEL brand.

Some days after the robbery someone called a friend of PW2 which call gave the clue that the person who called had the hand set that was robbed from PW2’s daughter. The person who called was traced and the person turned out to be Odunola Motunrayo PW4. PW4 was arrested and she told the Police that it was the Appellant that gave her the phone.

The case of the Appellant was that he was at Abuja on the 2nd January, 2011 and he did not come back to Akure until the 13th January 2011, the day he was arrested. He was drinking in a drinking parlour when the police came to arrest those that were drinking there. Five people were arrested and taken to SARS Akure.

The police told the five to bail themselves but the accused told the police that he had no money or anyone who can bail him. A young girl was brought to identify someone and the five arrested were put on line. When the four others had been bailed, the young girl was again brought and she now identified him.

Appellant conceded that PW4 was the young girl that was brought to identify him.

Learned trial judge relied essentially on the evidence of PW4 and the confessional statement of the Appellant Exhibit B even though retracted to convict the Appellant of the lesser offence of Robbery and sentenced him to 21 years imprisonment.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing seven (7) grounds of appeal before this court on 21/3/2013.

Appellant’s brief of argument dated 31/7/2013 was filed on 6/8/2013. Respondent’s brief of argument dated 17/2/2014 and filed on the same day was deemed filed on 17/2/2014.

Learned Counsel for the Appellant nominated three (3) issues for determination as follows:

1. Having regards to the circumstances of this case, whether the Appellant was validly arraigned before the lower court (Ground 1).
2. Whether the Appellant was given a fair trial having regards to the failure of the lower court to consider the defences available to the Appellant including the defence of alibi (Ground 4).
3. Whether there was credible evidence to link the Appellant to the commission of the crime (Grounds 2, 3 and 5).

Learned Counsel for the Respondent on the other hand formulated two (2) issues for determination as follows:

1. Whether the prosecution had discharged its burden of proof beyond reasonable doubt in respect of this matter to warrant the conviction of the Appellant by the trial court (Grounds 2, 3, 4, 5 and 6).
2. Whether there are procedural lapses in the trial and if so whether they could be resolved in favour of the (Appellant) (Grounds 1, 4 and 7).

On issue 1, Learned Counsel for the Appellant submitted that from the onset, the arraignment of the Appellant before the lower court on 13th June 2012 is flawed with procedural error and therefore no proceedings or judgment could stand on it. The plea of the Appellant, he said, was taken in contravention of the procedure laid down in Section 215 of the Criminal Procedure Law.