IN THE COURT OF APPEAL ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
ON THURSDAY, THE 15TH DAY OF JUNE, 2017
BEFORE THEIR LORDSHIPS
MOJEED ADEKUNLE OWOADE (JP) – JUSTICE, COURT OF APPEAL
HAMMA AKAWU BARKAN – JUSTICE, COURT OF APPEAL
BOLOUKUROMO MOSES UGO – JUSTICE, COURT OF APPEAL
APPEAL NO. CA/IL/C.6/2017
BETWEEN:
ABUBAKAR MUHAMMADU ……………………………….. APPELLANT
AND
THE STATE …………………………………………………… RESPONDENT
JUDGMENT
(DELIVERED BY MOJEED ADEKUNLE OWOADE, JCA)
This is an appeal against the Judgment and conviction of the Appellant by T.S. Umar, J. on the 23rd day of March, 2015 by the High Court of Justice sitting in the OMU-ARAN Judicial Division of Kwara State.
The Appellant and one Lawalo Umar were charged with the offences of criminal conspiracy contrary to Section 97 of the Penal Code and Armed Robbery contrary to Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 LFN 2004.
The specific charges against the Appellant and the other accused person read:
1. That you Abubakar Mohammadu (m), Lawalo Umar and other eight persons now at large on or about 09/12/2011 at about 09:20 hours along Osi/Eruku High Way agreed to do an illegal Act to wit, you agreed to rob one Honourable Sunday Osasona and other travelers at gun point of various items including Fourteen Handsets and Cash totallingN135,400:00 and that the same act was done in pursuance of your agreement, and you thereby committed are (sic) offence punishable under section 97 of the penal code.
2. That you ABUBAKAR MOHAMMADU (m) LAWALO UMARU (m) and other eight persons now at large on or about 9th day of December, 2011 at about 09:20 hours along Osi/Eruku highway did commit an illegal act, to wit, you robbed at gun point, one Honourable Sunday Osasona of his Itel GSM handset and a sum of N5,000:00 and also you rob other travelers of thirteen handsets and various sum of money including that of Honourable Sunday Osasona all totaling N135,400 (One hundred and thirty-five thousand and four hundred naira only) and you thereby committed an offence punishable under Section 1(2) pf the Robbery and Fire Arms (Special Provision) Act R 11 laws of federation of Nigeria 2004.
The Appellant and the other accused person pleaded not guilty to the charges.
The prosecution called three (3) witnesses to prove its case while the charges.
The prosecution called three (3) witnesses to prove its case while the Appellant and the other accused person testified each in defence.
The case for the prosecution was that there was robbery incidence along Osi/Eruku Road on 09/12/2011 at about 09:20hours when some travelers were attacked in their vehicles and were dispossessed of valuables including money and handsets. The robbers were said to be masked and were armed with guns, cutlasses and knives.
One of the victims was one Honorable Sunday Osasona who was disposed of his handset and the sum of N5,000. The Appellant and the other accused were arrested on the same day, 09/12/2011 after Jebba Bridge by Officers of NDLEA and were found in possession of sum of money and handset.
During the cause of investigation, calls were received through the handset recovered from the Appellant and the other accused person and some victims narrated how they were attacked and robbed along Osi/Eruku Road. A total o 14 (fourteen) different handsets were recovered from the Appellant and the other accused person. One of the handsets identified as his own by PW2, Hon. Sunday Osasona was released to him on bond by the Police. The bond is Exhibit 8. The 13 Number handset were marked Exhibits A1-A13.
The Appellant person claimed he was returning from Ibadan where he went to rear cattle for somebody. He was paid for his services with a cow which he sold. He left Ibadan on 09/12/2011 and took a bus to Jebba where he met the other passengers including the other accused. Before they got to Jebba Bridge, other passengers had disembarked in the bus, remaining three of them. On getting to the bridge, their vehicle was ordered to stop and during search he took to his heels and had to be pursued and arrested by the officers. He denied that the nylon bag recovered by his side with handsets inside was his but the sum of IKUMONIHAN VS. STATE (2014) 2 NWLR (PT 1392) 564 AT 591 and urged us to resolve the issue in favour of the Appellant.
Learned Counsel for the respondent adopted his submissions on Issues One and Two for Issue Three. He added in further reply to the Appellant that the prosecution is not bound to tender the statement of PW2 or any of the prosecution witnesses. That if the Counsel to the accused person was so interested in the statement, he would have made necessary application to the Court. And, also that such statements of witnesses obtained during investigation may only be used for the purposes of cross-examination to contradict sworn evidence by the witnesses in open Court.
In deciding Issue Three, I also adopt my resolutions on Issues One and Two in the resolution of Issue Three.
In addition and as pointed out by the learned Counsel for the Respondent, the Supreme Court per Akarahs JSC had this to say in the case of AJAYI VS. STATE (2013) 9 NWLR S.C. (PART 1360) at 589
“None of the prosecution witnesses was confronted with the fact that the evidence they gave contradicted the statements they made to the Police. If such suggestions had been put to the witnesses under cross-examination which they denied, learned Counsel could then apply either to tender the statements or invite the trial Judge to order the production of the case diary for his inspection to enable him ascertain if there are discrepancies between the evidence and the statements made during investigation.”
The Respondent [proved the offences in which the Appellant was convicted beyond reasonable doubt.
Issue Three is resolved against the Appellant.
Having resolved the three (3) Issues in this Appeal against the Appellant. The Appeal lacks merit and it is accordingly dismissed.
The Judgment, conviction and sentence of the Appellant by T. S. UMAR, J. in KWS/5C/2015 DELIVERED ON 23/03/2015 IN OMU-ARANJudicial Division of the High Court of Kwara State is hereby affirmed.
Signed:
MOJEED ADEKUNLE OWOADE
JUSTICE, COURT OF APPEAL
APPEAL NO.CA/IL/C.6/2017
HAMMA AKAWU BARKA, JCA
I was privileged to have read before now the judgment just delivered by my Lord MOJEED ADEKUNLE OWOADE PJ/JCA, in draft. I am in full agreement with the reasoning and the ultimate conclusion reached therein. I too see no merit in the appeal, and hereby dismiss same.
I also affirm the conviction and the sentence imposed by the Lower Court pronounced on the 23/03/2015 by T.S. Umar J, presiding at the High Court of Justice, Kwara State Omu-Aran Judicial Division in Charged No. KWS/SC/2013.
Signed:
HAMMA AKAWU BARKA
JUSTICE, COURT OF APPEAL
CA/IL/C.6/2017
BOLOUKUROMO MOSES UGO J.C.A.
I had the privilege of reading before now the lead judgment on my brother MOJEED ADEKUNLE OWOADE J.C.A. and I agree with his reasoning and conclusion. I also dismiss the appeal and affirm the conviction of the appellant by the trial High Court of Kwara State.
Signed:
BOLOUKUROMO MOSES UGO J.C.A.
JUSTICE, COURT OF APPEAL.
