|
In The Supreme Court of Nigeria
On Friday, the
15th day of
February 2008
Before Their Lordships
S.C. 186/2006
Between
And
Judgement of the Court
Delivered by
Ibrahim Tanko
Muhammad. JSC
The appellant herein,
was arraigned before the High Court of Justice, Abeokuta,
Ogun State (trial court) on the following
counts:
Count one
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Elekuro Village, via
Ifo in Ogun State of
Nigeria did conspire together with others still at large to commit a felony
to wit: Armed Robbery and thereby committed an offence contrary to
Section 5(b) and punishable under
Section 1(2) (a) of the
Robbery and Firearms (Special
Provisions) Act, Cap. 33S
Laws of the Federation of Nigeria
1990.
Count two
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Eiekuro Village, via
Ifo in Ogun State of
Nigeria whiie in the Company of others still at
large did rob one Saliu
Afolabi of the sum of
Count three
Saburi Adebayo (M) on or about the 11th
day of March, 1394 at Eiekuro Village, via
Ifo in Ogun State of
Nigeria whiie in the Company of others still at
large did rob one Oladehinde
Segun of the sum of
Trial began in earnest on the 22nd
day of October, 1999. The prosecution called six witnesses. The appellant
testified on his own behalf and called no other witness. The defence and the
prosecution addressed the trial court respectively. Judgment
was finally
delivered by the learned trial judge on the 11th day of February,
2000. The appellant was found guilty on all the three counts and was
accordingly sentenced to death by firing squad on each count.
Sentences to run concurrently.
Dissatisfied with the trial court's judgment
the accused/appellant filed an appeal to the Ibadan Division of the Court of
Appeal (court below). The court below affirmed the decision of the trial
court.
The appellant was aggrieved further and he
came to this court on appeal. The notice of appeal contained 3 grounds of
appeal pp 89 - 82 of the record).
In this court, briefs by the parties were
filed and exchanged. The appellant formulated one issue which reads as
follows:
"Whether the
lower court failed to consider the legal effect of joint consideration of
counts 1 and 2 together and if so whether the failure occasioned injustice
to the appellant."
The respondent on its part formulated the
following issue for determination:
"Whether there
was any aspect of the lower court's judgment which occasioned injustice to
the appellant."
The salient facts giving rise to this case
as contained in the printed record of appeal are that on the night of 11th
March, 1994, at about 1:00 a.m, a gang of men
armed with knives and cutlasses invaded Elekuro
village near Wasimi Railway Station. Among the
houses they entered were those of PWs 1 and 2.
They were demanding for money from PWs 1 and 2
who received severe beatings from the gang when they (PWs
1 and 2) said they had no money in their houses. Eventually,
PWs 1 and 2 each' managed to find
When the news of the presence of the armed
gang became known to some feiiow villagers they
came out and the robbers fled. The villagers gave a chase during which the
accused/appellant was caught and arrested by PW
3 who was a night guard on duty at the Unversal
Trust Bank which was situate in the vicinity. On arrest, the accused was
found to be carrying a cutlass and a butcher's knife which were recovered
from him. He was then handed over to PW 4 who
was on duty at Wasimi Police Post in the night
in question. Handed over to PW 4 also were the
cutlass and the butcher's knife recovered from the accused person.
Discovered also from the scene of the crime were
the Suzuki motor cycle which was earlier in that night stolen from the house
of PW 1. Two damaged wall clocks hidden in that
bush were also recovered. The accused/appellant made a confessional
statement to PW 5 which was tendered in evidence
and marked as Exhibit 'A'.
In his submissions in the brief on the lone
issue formulated, the learned counsel for the appellant stated that the
first issue raised at the lower court for determination was whether the
joint consideration of the two (2) offences as contained in counts 1 and 2
by the learned trial judge was justified in law. Learned counsel argued that
the lower court in the consideration of that issue did not consider and
determine the substance of the issue i.e. whether the trial judge was right
and, by implication whether the appellant suffered any prejudice or
miscarriage of justice in the circumstances. He argued, further that the
issue was validly raised same having arisen from the grounds of appeal,
ought to have been considered and pronounced upon by the lower court. The
lower court, he argued, did not consider it. The lower court's failure to
consider that issue was in clear breach of the appellant's right to fair
hearing as guaranteed under Section
36(1)(4) of the Constitution of
the Federal Republic of Nigeria, 1999. If the issue was considered, it
was further argued, it would have led to the discharge and acquittal of the
appellant.
Learned counsel for the appellant submitted
further that the law is now settled that the court is bound to consider and
pronounce on all the issues validly raised by the parties. He cited and
relied or: the cases of
Adah
v National Youth Service Corps (2004) 7 SC (Pt.11)
P. 139 at 143 - 144: Obi Nwanze
Okonji & 4 Ors v George
Njokanma & 2 Ors (1991) 7 NWLR (Pt.2C2)
131 at 146; Balogun v Labiran (1988) 3
NWLR (Pt.800)
p.66 at page 80; Chief
Okotie-Eboh v Chief James Manager & 2 Ors (2004) 11 - 12 SC p. 174 at
187.
In the case on hand, learned counsel for the
appellant stated that he raised the issue at the court below that the trial
judge ought not to have jointly considered the two counts together. He
contended that the evidence in support of the counts differs and that if the
trial judge had not adopted that procedure, it would have been clear to him
that the charges were not proved hence the appellant would have been
discharged and acquitted. There was, therefore, miscarriage of justice
against the appellant by the failure of the lower to consider the issue. On
this basis alone, the appeal ought to be allowed as the law is that a party
who was not heard in court cannot be said to be guilty of the offence
charged. The case of
Alhaji
Sanusi v Oreitan
Arneyogun (1992) 4 NWLR
(Pt. 237) 527 at p. 550 was cited. Learned counsel submitted that the
issue does not relate or revolve around the style of judgment writing or
evaluation of evidence by the trial judge. It was the position of the
appellant that since the counts differed in terms of evidence in proof, an
independent consideration of same was of utmost necessity. He finally argued
that the procedure adopted by the lower court was wrong in law. He urged
this court to resolve this issue in favour of the appellant by allowing the
appeal.
The learned counsel for the respondent (the
DPP, Ogun State,
MOJ), made her
submissions as follows: that the learned appellant's counsel cited some
cases in support of his contention. From the outset, the cases cited by the
appellant's counsel, she argued, relate to civil appeals and therefore not
completely apposite in a criminal appeal. She
submitted that the issue of the joint consideration of counts 1 and 2 being
issue 1 formulated by the appellant's counsel in the lower court is subsumed
under issue 2 formulated by the same counsel. The cardinal principle in
deciding cases is that when a party submits an issue to a court for
determination that court must make a pronouncement on that issue except
where the issue is subsumed in another issue. She cited and relied on the
case of Okonji
v Njokanrna (1991) 7 NWLR
(Pt. 202) 131 at page 146
paragraph A - B. it is further submitted for the respondent that the
cardinal principle upon which a criminal case can be sustained by the trial
court is if the prosecution proves its case against the accused person
beyond reasonable doubt. The cases of
Igabele
v State (2006) 6 NWLR (Pt.975)
100 at page 131 para D,
Oladele
v Nigerian Army (2004) 6 NWLR (Pi. 138) at 178
para D; were cited in support. The learned
DPP submitted that the trial court and the court
below found the charge against the appellant to have been proved beyond
reasonable doubt. At the court below, issue 2 formulated by the appellant
was resolved against him. The court specifically stated that the said issue
2 was resolved in favour of the respondent. In a criminal appeal, where the
court of appeal accepts that the case against the appellant was proved
beyond reasonable doubt, and the said court did not find any reason to set
aside the conviction of the appellant and affirmed the sentence passed on
the appellant, then the failure to consider any issue which has been
subsumed under the issue which dealt with proof beyond reasonable doubt
cannot be said to have occasioned any injustice to the appellant. His
constitutional right was also not in any way violated. On the style adopted
by the learned trial judge in his judgment, the learned counsel argued that
that was a matter within judge's discretion. She cited and relied on the
case of Igogo
v State (1999) 14 NWLR (Pt.637)
1 at page 9, B - C. The learned DPP finally
urged this court not to interfere with the concurrent findings of the two
lower courts as they were not perverse and no injustice was occasioned to
the appellant.
I think my spring board in commencing the
determination of this appeal is what the learned trial judge said with
regard to the two counts said to have been tried jointly by the judge. On
page 40, lines 30 - 32 of the printed record of appeal, the learned trial
judge stated:
“For
convenience sake I propose to deal with the 2nd and 3rd
counts of the charge first before coming back to deal with the charge of
conspiracy in count 1”
The learned trial judge went ahead to treat
the two counts making a finding that with regard to the 2nd and 3rd
counts, the accused parson was charged under
Section 1(2) (a) of the
Robbery and Firearms (Special
Provisions) Act, 1990. The learned trial judge set out the provisions
accordingly. I think there was a mistake from the side of learned counsel
for the appellant to say that the learned trial judge considered counts 1
and 2 of the charge together. But assuming that the intention of the learned
counsel for the appellant was to challenge the treatment of counts 2 and 3
of the charge together as done by the learned trial judge, I would still not
have found anything wrong in that. This is because, having studied the
judgment of the court below, I find that that court affirmed the style
adopted by the trial court in convicting and sentencing the appellant on all
the counts charged, particularly counts two and three, I quote hereunder
what the court below said:
"I
find the accused guilty on the 1st count
of conspiracy to commit the
offence of armed robbery
punishable under Section
1(2) (a)
of the robbery and firearms
(Special
Provisions) Act, 1990.
On the 2nd
and 3rd counts the accused is
also
found guilty as charged under
Section 1(2) (a) of the robbery and firearms (Special Provisions)Act
1990 respectively. I also confirm the sentence of death by firing squad
in respect of the 1st, 2nd and 3rd counts."
I think the language used in that excerpt
from the judgment of the court below is clear enough to show that the court
was in agreement with the whole decision taken by the trial court, if there
was any fault anywhere that court could have spotted it out.
In any event, what is fundamental in any
criminal trial is the sustenance of justice and fair hearing. And, where the
trial court is satisfied that the prosecution has proved its case beyond
reasonable doubt as is required by the law, I then fail to see where the
joinder of the counts on offences which are
similar in nature and committed at almost the same time by the same accused
person(s) can cause any miscarriage of justice. It is the decision of this
court in many decided cases that in deciding upon whether there had been
miscarriage of justice, the court of appeal dealing with the issue raised
must be satisfied that it is substantial, not one of mere technicality,
which had caused no embarrassment or prejudice to the appellant. See:
Okegbau
v State (1979) 12 NSCC 151 at 156;
Of course what amounts to a miscarriage of
justice varies not only in relation to particular facts but with regard to
the jurisdiction which has been involved by the proceedings in question, and
to reach the conclusion that a miscarriage of justice has taken place does
not require a finding that a different result necessarily would have been
reached in the proceedings said to be affected by the miscarriage. See:
Adigun v A. G. Oyo State (1988) 1
NWLR (Pt.53) 628.
It is enough if what is done is not justice according to law. See:
Okonkwo
v Udo (1997) 9 NWLR
(Pt. 519) 16 at page 20; State v Ajie (2000) 11
NWLR (Pt. 678) 434 at 448. In the appeal on
hand, count two of the charge accused the appellant of robbing one
Saliu Afolabi of the
sum of
The accused pleaded not guilty to each of
the counts which were read to his understanding separately. The learned
trial judge recorded accused's pleas to the two
counts separately, (see page 13 of the record of appeal).
PW1 and PW2 were the
victims of the offences charged under counts 2 and 3. After evaluation of
evidence and making his findings, the learned trial judge, in applying the
provisions of the law relating to the offences charged elected to treat
counts two and three together because of their similarity. He finally
pronounced the sentence in respect of each count but that all the sentences
were to run concurrently. The court below affirmed the trial court's
decision. I can hardly fault these concurrent decisions. In any event the
punishment meted to the appellant on the 2nd count is "death by
firing squad." Equally, the punishment meted under count three is "death by
firing squad." Even if there were one hundred counts and each fetching the
punishment of death, I believe there is only one death. All the sentences
must, as a matter of fact, run concurrently as the convict must taste the
pangs of only one death.
I do not think it is that easy to secure a
discharge order for the appellant merely on a technical point that the issue
raised by learned counsel for the appellant before the court below was not
considered, I am not unaware
that a court of law is duty bound to consider and pronounce upon all
the issues raised validly by the parties. Learned counsel for the respondent
argued that the issue of the joint consideration of counts 1 and 2 (2 & 3)
being issue I formulated by the appellants counsel. It is trite law that
when a party submits an issue to a court for determination, that court must
make a pronouncement on the issue except where the issue is subsumed in
another issue. Where that happens, there shall no longer be the necessity of
making a separate pronouncement on the issue subsumed. See:
Okonji
v Njokanma (1991) 7 NWLR
(Pt. 202) 131 at page 146, A-B.
This appeal is very unmeritorious. I think
it was filed in order to buy more time for the condemned prisoner. That
venture has failed and the appellant, who was bold enough in executing his
nefarious and merciless operations, should equally be bold enough to pay the
price of his deeds.
I dismiss the appeal and affirm the
concurrent decisions of the two courts below.
Judgment delivered by
Niki
Tobi. JSC
On 11th March, 1994, at
Elekuro Village, via
Ifo, Ogun
State, appellant with one other person armed with cutlass and knife robbed
PW1, Saliu
Afolabi of the sum of
Appellant was duly charged to court. He
denied the robbery. The learned trial Judge convicted him of the three
counts and sentenced him to death. An appeal to the Court of Appeal was
dismissed. The appellant has come to this court.
Briefs were filed and exchanged. The
appellant formulated one issue for determination. It reads:
"Whether the lower court failed to consider
the legal effect of the joint consideration of Counts 1 and 2 together, and
if so whether the failure occasioned injustice to the Appellant."
Respondent also formulated one issue for
determination. It reads:
"Whether there was any aspect of the lower
court's judgment which occasioned injustice to the appellant."
Learned counsel for the appellant, Dr.
Joseph Nwobike, submitted that a court is bound
to consider and pronounce on all the issues validly raised by the parties.
Citing Adah
v. National Youth Service Coprs (2004) 7 SC (Pt.
II) 139 and
Okonji v. Njokanma
(1991) 7 NWLR
(Pt. 202) 131, learned counsel contended that the issue as to joint
consideration of the two counts ought to have been considered and pronounced
upon by the Court of Appeal as it was a material issue upon which the appeal
was predicated. He submitted that failure of the court to consider the issue
was in clear breach of the appellant's right to fair hearing as guaranteed
in section 36(1) of the 1999 Constitution He cited
Balogun v.
Labiran (1988) 3
NWLR (Pt. 800) 66 and
Okotie-Eboh
v. Manager(2004) 11-12 SC 174.
Arguing that there was a manifest miscarriage of justice against the
appellant, counsel cited the case of
Sanusi v. Ameyogun
(1992) 4 NWLR
(Pt. 237) 527. He urged the court to allow the appeal.
Counsel for the respondent, Mrs. A. A.
Babawale, learned Director of Public
Prosecutions, submitted that the cases cited by counsel for the appellant
relate to civil procedure and therefore not completely apposite in a
criminal appeal. She cited the case of
Okonji
v. Njokanma
(1991) 7 NWLR
(Pt. 202) 131
Counsel submitted that the issue of the
joint consideration of counts 1 and 2 being Issue 1 formulated by counsel
for the appellant in the Court of Appeal is subsumed under Issue 2
formulated by counsel for the appellant. She submitted that the cardinal
principle upon which a criminal case can be sustained by the trial court is
that the prosecution must prove its case against the accused person beyond
reasonable doubt.
The cases of
Igabele
v. State (2006) 6 NWLR (Pt. 975)100 and
Oladele
v Nigerian Army (2004) 6 NWLR 166
were cited in support of the principle of law. The affirmation of the
conviction and sentence of the trial Judge by the Court goes to show that
Issue 2 formulated by the appellant in the Court of Appeal was resolved
against the appellant. She urged the court to dismiss the appeal.
As the complaint is on Counts 1 and 2, I
should reproduce them here for ease of reference:
"Count One:
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Elekuro Village, via
Ifo in Ogun State of
Nigeria did conspire together with others still at large to commit a felony
to wit: Armed Robbery and thereby committed an offence contrary to Section
5(b) and punishable under Section
1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.398 Laws
of the Federation of Nigeria, 1 990.
Count Two:
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Elekuro Village, via
Ifo in Ogun State of
Nigeria while in the company of others still at large did rob one
Saliu Afolabi of the
sum of=N=100.00 and a Suzuki Motor-cycle with Reg. No. OG 7842 DA and
at the time of the said robbery were armed with cutlasses and thereby
committed an offence contrary to and punishable under Section 1(2) (a) of
the Robbery and Firearms (Special Provisions) Act, Cap.398 Laws of the
Federation of Nigeria, 1990."
The next process to be considered is the
first issue for determination in the Court of Appeal.
It reads.
"Whether the joint consideration of the two
(2) offences as contained in counts 1 and 2 by the learned trial judge was
justified in law."
The above issue is related to the only issue
formulated by appellant for determination in this court. The only difference
is the twist of injustice arising from the alleged failure of the Court of
Appeal to consider the legal effect of the joint consideration of counts 1
and 2 together.
An examination of the above processes will
provide the answer in this appeal. As it is, the first count is on
conspiracy to rob and the second count is the commission of the offence of
robbery. The learned trial Judge in his judgment said at pages 48 and 49 of
the Record:
"Regarding the charge of conspiracy in the 1st
count, the prosecution in proving the charge against the accused generally
tendered in evidence the statement of the accused to the police (exhibit
'A'). The contents of exhibit 'A' provide sufficient evidence of the degree,
nature and quality of the agreement between the accused and the other
members of his gang now at large before the commission of the offences
charged. With this, I am satisfied that there is sufficient evidence of
conspiracy against the accused person to justify his conviction on count 1.
Assuming
however for the sake of argument that exhibit 'A' does not provide
sufficient direct and distinct evidence of conspiracy is not indispensable,
and that it is open to the trial Court to infer conspiracy from the fact of
doing things toward a common end;
Onochie
v.The Republic
(1966) NWLR 307 at308.
In view of the above authority therefore,
and having found the accused guilty of armed robbery under Section 1(2) (a)
of the Robbery and Firearms (Special Provisions) Act, 1990, I am satisfied
that the prosecution has also proved its case against the accused within the
standard required by Section 137 of the Evidence Act in respect of the
charge of conspiracy in the 1st count. Accordingly, I find the
accused guilty as charged."
I have the impression that the first issue
for consideration by the Court of Appeal was on the above conclusion of the
learned trial Judge.
What did the Court of Appeal say?
The Court of Appeal, per Udom-Azogu,
JCA, said at pages 82 and 83 of the Record:
"It is my view that the evidence before the
court below supports the conclusion of the trial Judge, that "On the
totality of the evidence the accused’s
confessional statement Exhs. A and A1 and the
circumstances of his arrest; I am satisfied that the prosecution has proved
a case of armed robbery against the accused person beyond reasonable doubt,
in consequence he found him guilty of armed robbery on 2nd and 3rd
counts of the charge respectively". The 2nd issue is
resolved in favour of the Respondent.
It is manifest from the evidence that the
offences of conspiracy and armed robbery were proved and accused/Appellant
was rightly convicted at the court below, the retraction of the "voluntary"
statement notwithstanding. In the final result the verdict of the trial
court is affirmed. I find the accused guilty on the 1st count of
conspiracy to commit the offence of armed robbery punishable under Section
1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990. On the
2nd and 3rd counts the accused is also found guilty as
charged under Section 1(2) (a) of the Robbery and Firearms (Special
Provisions) Act 1990 respectively. I also confirm the sentence of death by
firing squad in respect of the 1st, 2nd and 3rd
counts."
I am in entire agreement with learned DPP
for the respondent that the above conclusion of the Court of Appeal shows
that Issue 2 formulated by the appellant in that court was resolved against
him. At page 6 of the
Respondent's Brief, learned DPP admirably further submitted:
"We further contend, that in a criminal
appeal, where the Court of Appeal accepts that the case against the
Appellant was proved beyond reasonable doubt, and the said court did not
find any reason to set aside the conviction of the appellant and affirmed
the sentence passed on the Appellant, then the failure to consider any
issue, which has been subsumed under the issue which dealt with proof beyond
reasonable doubt cannot be said to have occasioned any injustice to the
Appellant. His constitutional right was also not in any way violated."
I agree entirely with the above submission
of the learned DPP.
While I agree with learned counsel for the
appellant that there was really no clear demarcation between the conspiracy
and the actual commission of the offence, in the judgment of the learned
trial Judge, I am unable to agree with him that the appellant was denied
fair hearing or that there was a miscarriage of justice The offence of
conspiracy to commit an offence and that of the commission of the real
offence though not twin brothers have some affinity and a trial Judge cannot
be censured because he did not evaluate the evidence on the two offences
separately. There can hardly be any water-tight demarcation particularly in
the light of the facts of this case.
I must say that the learned trial Judge
tried to separate the two in his judgment. An example is at page 48 of the
Record when he took the offence of conspiracy;
"Regarding the charge of conspiracy in the 1st
count, the prosecution in proving the charge against the accused generally
tendered in evidence the statement of the accused to the police (exhibit A).
The contents of exhibit 'A' provide sufficient evidence of the degree,
nature and quality of the agreement between the accused and the other
members of his gang now at large before the commission of the offences
charged. With this, I am satisfied that there is sufficient evidence of
conspiracy against the accused person to justify his conviction on count 1."
Although learned counsel for the appellant
submitted that the issue relates or revolves around the style of judgment
writing or evaluation of evidence by the trial Judge, he clearly means the
two put together. There is no need to play with words. I think learned DPP
got him when she cited
Igabo
v. State (1999) 14 NWLR (Pt. 637)
1. This court said at page 19:
"It
is elementary principle that the function of the evaluation of evidence is
essentially that of the trial Judge. Where the trial Judge has
unquestionably evaluated evidence and justifiably appraises the facts it is
not the business in an appellate court to interfere, and to substitute its
own views for the view of the trial court."
In order to pick faults in a judgment of a
trial Judge, an appellate court should not take paragraphs or pages in
isolation or in quarantine but must take the whole judgment together as a
single decision of the court. An appellate court cannot allow an appellant
to read a judgment in convenient instalments to underrate or run down the
judgment. While an appellate court can concede to counsel the right to be
partisan to the case of his client, the court
will not allow him to construe a judgment parochially since the judgment is
available lo the court for construction.
The appellant confessed to the commission of
the offence. The confessional statement is at pages 8 and 9 of the Record.
It reads in part:
"The three of us agreed to go and do the
business. The three of us boarded a passenger vehicle at
Lafenwan garage at about 9.30 p.m. We dropped at
Wasimi Village at about 11.30 pm they carried
guns..."
Confession is the best evidence in criminal
law. In it, the accused admits that he committed the offence for which he is
charged. For this purpose, the accused is the figurative horse's mouth. He
committed the offence and he confesses and admits the offence. There cannot
be better evidence. And so the law is that a trial Judge can admit
confessional statement, if it was made voluntarily and without any
inducement, threat or promise from a person in authority.
Learned counsel for the appellant roped in
the fair hearing principle I have seen in recent times that parties who have
bad cases embrace and make use of the constitutional provision of fair
hearing to bamboozle the adverse party and the court, with a view to moving
the court away from the live issues in the litigation. They make so much
weather and sing the familiar song that the constitutional provision is
violated or contravened. They do not stop there. They rake the defence in
most inappropriate cases because they have nothing to canvass in their
favour in the case. The fair hearing provision in the Constitution is the
machinery or locomotive of justice; not a spare part to propel or invigorate
the case of the user. It is not a casual principle of law available to a
party to be picked up at will in a case and force the court to apply it to
his advantage. On the contrary, it is a formidable and fundamental
constitutional provision available to a party who is really denied fair
hearing because he was not heard or that he was not properly heard in the
case. Let litigants who have nothing useful to advocate in favour of their
cases, leave the fair hearing constitutional provision alone because it is
not available to them just for the asking.
It is for the above reasons and the fuller
reasons given by my learned brother, Muhammad, JSC, that I dismiss the
appeal.
Judgment delivered by
Sunday
Akinola
Akintan, JSC
The appellant was arraigned before an
Abeokuta High Court on a one count charge of conspiracy and two counts of
robbery. The first count was for conspiracy to commit robbery while the two
other counts were for robbery. He pleaded not guilty to each of the counts
of the charge and the prosecution led evidence in support of its case. The
evidence tendered at the trial came from the victims of the robbery and the
confessional statement of the appellant. The appellant was found guilty as
charged by the learned trial Judge and appropriate sentences were imposed,
including death sentence.
The appellant was dissatisfied with the
conviction and sentences passed on him. His appeal to the Court of Appeal
was dismissed. The present appeal is from the judgment of the Court of
Appeal dismissing his appeal.
The main complaint raised in this court is
in respect of the lower court's treatment of counts 1 and 2 together. It is
not a complaint against joinder of the two
counts. It is against the treatment of the issues arising together. The
merits of the overwhelming case against the appellant were totally ignored.
It is necessary to say that an appeal could only be allowed where, inter
alia, a case has been made out show that there was fundamental breach of
the applicable law or procedural law or that an essential ingredient of the
charge against an appellant was not established. That was not the position
in this case.
I had the privilege of reading the draft of
the leading judgment written by my learned brother, I. T. Muhammad, JSC. All
the issues raised in the appeal are fully set out and dismissed therein. I
entirely agree with his reasoning and conclusion as set out in the said
judgment. For the reasons given in the said leading judgment, I also hold
that there is no merit in the appeal and I accordingly dismiss it.
Judgment Delivered by
Walter Samuel
Nkanu Onnoghen
JSC
This is an appeal against the judgment of
the Court of Appeal, Holden at Ibadan in appeal No.CA/I/75/2002
delivered on the 11th day of July, 2006 affirming the conviction
and sentence of the appellant for conspiracy to commit armed robbery, armed
robbery under Section 1 (2) (a) of the Robbery and Firearms (Special
Provisions) Act, 1990.
The appellant was charged before the
Ogun State Tribunal for the trial of offences
under the Robbery and Firearms (Special Provisions) Act, 1990 with the
following offences:-
"Count One:
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Elekuro Village, via
Ifo in Ogun State of
Nigeria did conspire together with others still at large to commit a felony
to wit: Armed Robbery and thereby committed an offence contrary to Section
5(b) and punishable under Section
1(2) (a) of the Robbery and Firearms (Special Provisions) Act,
Cap.398 Laws of the Federation of Nigeria, 1
990.
Count Two:
Saburi Adebayo (M) on or about the 11th
day of March, 1994 at Elekuro Village, via
Ifo in Ogun State of
Nigeria while in the company of others still at large did rob one
Saliu Afolabi of the
sum of=N=100.00 and a Suzuki Motor-cycle with Reg. No.
OG 7842 DA and at the time of the said robbery
were armed with cutlasses and thereby committed an offence contrary to and
punishable under Section 1(2) (a) of the Robbery and Firearms (Special
Provisions) Act, Cap.398 Laws of the Federation
of Nigeria, 1990."
Count Three:
Saburi Adekayo
(M) on or about
the 11th day of March, 1994 at Elekuro
village, via.
Ifo in Ogun State of
Nigeria while in the company of others still at large did rob one
Oladelinde
Segun of the sum of N100.00k and
at the time of the robbery were armed with cutlasses and thereby committed
an offence contrary to and punishable under Section
I (2) (a) of the Robbery
and Firearms (Special Provisions) Act. Cap.398 Laws of
the Federation of Nigeria, 1990".
At
the conclusion of the trial, appellant was convicted of the offences and
sentenced to death by firing squad, He was dissatisfied with the judgment of
the trial tribunal and consequently appealed to the Court of Appeal which
dismissed the appeal and affirmed the conviction sentence resulting in the
instant, further appeal before this court.
The case of the prosecution is that on the
11th day of March, 1994 at Elekuro
Village, via Ifo in Ogun
State, the appellant with others now at large while armed with cutlasses and
butchers knife, robbed one
Salihu
Afolabi of the sum of
The appellant denied the charge and stated
that he was on his way to Lagos to procure medicine to cure a stomach
ailment but dropped from the vehicle in which he was travelling from
Abeokuta, at Itori village to ease himself in a
nearby bush but when he thereafter emerged from the bush onto the road so as
to take another vehicle to continue with his journey, he was apprehended by
PW3.
Learned counsel for the appellant
Dr
Joseph Nwobike in the appellant's brief
of argument file on the 27th day of September, 2006 and adopted
in argument of the appeal on the 22nd day of November, 2007 has
submitted a single issue for the determination of the appeal. The issue is
as follows:-
"Whether the
lower court failed to consider the legal effect & of the joint consideration
of counts 1 and 2 together; and if so
whether the
failure occasioned
injustice to
the Appellant"
In arguing the issue, learned counsel
submitted that it is now settled law that a court is bound to consider and
pronounce on all the issues validly raised by the parties, relying on
Adah vs
National Youth Service Corps (2004) 7
SC (Pt.11) 139, at 143- 144;
Okonji vs
Njokanma
(1991) 7 NWLR (Pt.202) 131 at 146;
that the trial court considered counts 1 and 2 jointly but the lower court
failed to pronounce upon the submission of learned counsel for the appellant
that the procedure adopted by the trial court was wrong and injurious to the
case of the appellant; that the matter was raised as appellant's issue 1 in
the lower court and that the none consideration of that issue amounts to a
breach of appellant's right to fair hearing as guaranteed under Section 36
(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (herein
after referred to as the 1999 Constitution) and urged the court to resolve
the issue in favour of the appellant and allow & the appeal.
On her part, learned counsel for the
respondent A.A Babawale (Mrs)
formulated the following issue for determination;
"Whether there
was any aspect of the lower court's judgment which occasioned injustice to
the Appellant".
Learned counsel then submitted that the
cases cited and relied upon by counsel for the appellant are civil cases
which are not applicable to the instant ease, and cited and relied on the
case of Okonji vs
Njokanma,
supra, to the effect that a Court
of Appeal should not deal with issues not before it and that where an issue
is submitted to the court for determination, the court must make
pronouncement thereon except where the issue submitted is subsumed in
another issue; that the issue of joint consideration of counts 1 and 2 as
framed in issue 1 before the lower court was subsumed under issue 2 which
posited thus:
"Whether the
offences charged were proved by the prosecution against the Appellant beyond
reasonable doubts";
that the lower court found that the charge
against the appellant was proved beyond reasonable doubt and thereby
resolved the issue 2 against the appellant; that the none consideration of
issue 1 by the lower court in the circumstance cannot be said to have
occasioned a miscarriage of justice and urged the court to resolve the issue
against the appellant and dismiss the appeal. It should be noted that the
counts 2 and 3 considered together by the learned trial judge charged the
appellant with armed robbery against two persons separately and that learned
counsel for the appellant has not referred this court to any provision of
the Criminal Procedure Act/Law applicable which forbids such a joint
consideration, particularly where the facts are very similar for the proof
of each count, as in the instant case. The real question before in the trial
court is simply whether there was an armed robbery committed by the
appellant together with others now at large on the day in question and on
the people respectively mentioned or named in the two counts.
If from the available evidence on record,
the question can be unequivocally answered in the affirmative, it becomes
irrelevant to consider the issue whether the counts were considered jointly
in the process leading to the resolution of the question. The end result is
whether there is visible evidence on record to support the conclusion
reached by the learned trial judge on the issue. From the record, I hold the
view that such evidence exist and that the conclusion has not led to any
miscarriage of justice, neither can the exercise be legally said to amount
to a denial of the appellant's right to fair hearing as argued by learned
counsel for the appellant.
What is better evidence than the eye witness
accounts of the victims of the robbery and the appellant's confession to the
crime? In his statement to the police upon his arrest at pages 8 and 9 of
the record; appellant stated, inter alia, as follows:-
I
know Wasiu and Waidi
Akanji (M). Sometimes in May, 1993
Waidi (M) told me that he is a
vulcanizer by profession, while I do not know
the work of Wasiu. He used to meet ourselves at
Oke-ldo at Gbagura
where we play table tennis together. On Thursday 10/3/94 at about 7p.m.,
myself, Wasiu and
Waidi Akanji met
ourselves at Oke-ldo. As we were playing table
tennis, Waidi Akanji
told me and Wasiu (M) that there was one certain
work that he wanted to do, I do not ask him what type of work since
he is aware of my work that I am a
butcher by profession. The three of us agreed to go and do the business.
The three of us
boarded a passenger vehicle at Lafenwa garage at
about 9.30p.m we dropped at Wasimu Village at
about 11.30p.m. Wasiu was carrying one bag with
him in his hand even the driver whom we boarded his vehicle asked us where
we were going at that lime. Waidi answered him
that we were going to butcher cow somewhere when we alighted from the
vehicle. We started trekking Elekuro Village we
reached the village by 2 in the mid-night. All the villagers had slept. The
two of them that is Waidi
Akanji (M) and Wasiu (M) opened the bag
and pulled out matchets that was kept inside,
one of the two men we went together later took one motor-cycle and started
riding it off by this time the villagers had woken up; they carried guns and
cutlasses to pursue us, I ran inside the bush and took cover. When I felt
that the shouting of the villagers had died down I entered the road leading
to Wasiu village to board another vehicle to
Abeokuta since I could not know the direction which the remainder two of my
gang followed. I was later taken to Itori Police
Station from Itori to
Ifo Police before I was finally taken to
Eleweran Abeokuta. I know that what we did was
bad because we went to another people village by night and we took their
properties by force. I have not been given, any thing out of the properties
we stole before I was caught. I plead with the government to forgive me and
I promised not to commit this type of offence again.
From the above, it is clear that the
appellant admitted committing the offence while in the company of the others
still at large. I therefore, do not see any merit in the instant appeal
which I agree
with the
lead judgment
of my
learned brother
Muhammad
JSC
should be
dismissed. I
hereby order
accordingly.
Judgment delivered by
Christopher
Mithchell
Chukwuma-Eneh
I have read in advance the judgment of my
learned brother, Mohammad JSC just delivered with which I agree. I adopt the
same as mine. I will dismiss the appeal and abide by the orders in the lead
judgment.
Counsel
|