Aminu Tanko V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C.

This appeal is against the judgment of the Court of Appeal (Abuja Division) delivered on the 28th of January 2008 on Appeal No CA/A/179c/06: Aminu Tanko Vs. The State in which that court (the Court of Appeal) hereinafter referred to as the court below affirmed the judgment of the High Court of Minna, Niger State which convicted and sentenced the appellant to death for the offence of conspiracy and robbery under the Robbery and Firearms (Special Provisions) Act Cap 398 laws of the Federal Republic of Nigeria 1990. The trial court (High Court of Justice, Minna, Niger State, in convicting and sentencing three of the accused persons i.e. 1st accused person – Aminu Tanko, 3rd accused person – Joseph Amoshima and the 4th accused person – Ikechukwu Okoh arraigned before it, the trial judge said inter alia:

“It is therefore settled that the fact of retraction of a confession does not make it evidence upon which the court cannot act,”

I have also found that the prosecution has proved its case of armed robbery on the 2nd head of charge against the 4th accused person. In (sic) the whole, the prosecution having proved its case against each of the three accused persons as charged on each head of charge, I find the 1st accused person, Aminu Tanko, 3rd accused, Joseph Amoshina and 4th accused Ikechukwu Okoh, each guilty of the offences of conspiracy to commit robbery and the commission of armed robbery as charged and punishable under Sections 5(b) and (2)(a) respectively of the Robbery and Firearms (Special Provisions) Act No 5 of 1984 as amended by Decree No 62 of 1999 and each of the accused is accordingly convicted for the two offences… Each of the convicts, Aminu Tanko, Joseph Amoshima, lkechukwu Okoh is sentenced to death by hanging as prescribed by Section 1(2) (a) of the Decree”.

Being dissatisfied with that judgment, the present appellant appealed to the court below. In dismissing the appeal and affirming the conviction and sentence of the appellant, the court below said inter alia:

“The grouse of the Appellant under this issue is that, the Attorney – General of a State or any officer of his department cannot institute and undertake any criminal proceedings against any person including the Appellant. What is more, the former position where the consent of the Federal Attorney- General could be given to the Attorney – General of a State to prosecute cases under the provisions of the Robbery and Firearms (Special Provisions) Act has been removed by the Constitution. With due respect, the learned counsel for the Appellant has totally misconceived the relevant provisions of the laws relating to this issue. The correct position is as soundly submitted by the learned counsel for the respondent. In the case of ISHMEAL EMELOGU VS THE STATE supra, the Supreme Court held that the offence of armed robbery not being in the Exclusive and Concurrent Legislative Lists, it falls within the Residual Legislative List. The effect of this is that the State House of Assembly can legislate on it by repealing the Federal Act. Albeit, for purposes of uniformity, States have continued to use the Act as touching on armed robbery and other related offences. By Decree No 67 of 1999, Armed Robbery Tribunals were scrapped and the jurisdiction to try armed robbery offences was specifically vested in the State High Court. It is pertinent to state that even before Section 9 of Decree No 5 of 1984 was repealed, the Governor of a State was empowered to constitute the State Armed Robbery Tribunal headed by a State High Court Judge as Chairman. Also armed robbery and other related offences were State offences and prosecuted by the officers of the State Attorney – General… This appeal is devoid of merit; it must be dismissed and is accordingly hereby dismissed.

Consequently, the judgment of the trial court delivered on 19/7/2005 is affirmed. The conviction and sentence of the Appellant are accordingly hereby upheld.”

Also, dissatisfied with the judgment of the court below, the appellant once again appealed to this court. He distilled seven issues from the eight grounds of appeal contained in his Notice of Appeal dated 20th February 2008. The said issues as set out in his brief of argument dated and filed on the 2ih of March 2008 are as follows:

“(1) Whether the Hon. Court of Appeal was right to have held that the offence of robbery created under the Robbery and Firearms (Special Provisions) Act Cap 398 not being in the Exclusive and Concurrent Legislative list is a state offence for and can be prosecuted by the Attorney – General of Niger State.

(2) Whether the Hon. Court of Appeal was right to have held that death sentence is mandatory on conviction under the Robbery and Firearms (Special Provisions) Act

(3) Whether the Hon. Court of Appeal was right to have upheld the trial court’s stipulation of manner of execution of death sentence passed on the Appellant in violation of section 1(3) of the Robbery and Firearms (Special Provision) Act Cap 398

(4) Whether the Hon. Court of Appeal was right to have upheld the reliance of the trial court on the extrajudicial statement of the Appellant in his conviction despite all the irregularities.

(5) Whether the Hon. Court of Appeal was right to have held that PW1 and PW2 are not tainted witnesses and that the evidence of PW 2 dispenses with the need for identification parade

(6) Whether considering the ingredients of offence of robbery required to be proved under the Robbery and Firearms (Special Provision) Act, the Hon. Court of Appeal was right to hold that the prosecution needed not to have tendered the alleged weapons used in the robbery.