Folorunsho V The State (2014)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Benin Division of the Court of Appeal, delivered on the 23rd day of April, 2012.

The appellant had earlier been charged along with one other, called Sunday Ehimiyein with two counts of conspiracy and armed robbery as follows:-

Count 1: That you, Sunday Ehimiyein (M) and Folorunsho Alufohai (M) on or about the 5th day of January, 1998 at Oluku town in the Iguobazuwa Judicial Division triable in the Benin Judicial Division conspired together and one other now at large to commit 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, 1990.

Count II: That you Sunday Ehimiyein (m) and Folorunsho Alufohai (m) and one other now at large on the 5th day of January, 1998 at Oluku Junction in Oluku town in the Iguobazuwa Judicial Division triable in the Benin Judicial Division robbed one Raphael Aggi (m) and Mrs. Helen Aggi (f) of their Video machine, valued at N18,000.00; one video Rewinder valued at N3,000.00 only and one 14″ colour Television valued at N23,000.00 and that at the time of robbery, you were armed with offensive weapons to wit: gun, cutlass and acid and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and firearms (Special Provisions) Act Cap 398, of 1990 Laws of the Federation of Nigeria.

Before the trial court, the two accused persons pleaded not guilty to the two counts. The prosecution called a total of five (5) witnesses in support of the charge. Each of the accused testified on oath in defence but called no other witness. In a considered judgment, the trial court, on the 26th day of September, 2005 found each of the accused persons guilty of the two counts, convicted and sentenced them to death by hanging by the neck until each of them shall be certified dead.

Dissatisfied with the judgment of the trial court, the instant appellant appealed to the court below in the Benin Judicial Division on two grounds.

The court below found, upon the evidence of PW3 and PW4, that the appellant was properly convicted of the offence charged and dismissed the appeal.

Being further dissatisfied with the decision of the court below led to the instant appeal upon a sole ground of appeal with a promise to file additional grounds of appeal upon receipt of the record of appeal. But no further ground was filed by the appellant.

When the matter came up for hearing on 23/10/2014, learned counsel to the appellant adopted and relied on the appellant’s brief of argument filed on 27/07/2012 to urge the court to allow the appeal, set aside the conviction of the appellant and the affirmation of same by the court below and to discharge and acquit the appellant.

On the other hand, learned counsel for the State adopted and relied on their amended respondent’s brief of argument to urge the court to hold that the prosecution proved the case on the two counts against the appellant and the co-accused beyond reasonable doubt and urged the court to dismiss the appeal for being unmeritorious.

The gist of this case briefly is that, one Helen Aggi (PW3) and her late husband – Raphael Aggi were on the 5th day of January, 1998 robbed by the appellant and one Sunday Ehimiyein with another, still at large, while armed. They were dispossessed of their electronics, including one video player and a video Rewinder which were both tendered, admitted and marked as Exhibits A and B respectively. That in the course of the robbery, acid was poured on PW1’s face. While at the police station reporting the incident and making statement to the police, PW4, a policeman arrived the station with the appellant and a co-accused with Exhibits A and B, the properties of the complainants recently robbed. On sighting the appellant, he was immediately identified to the police with the stolen properties.

It was in evidence on record that prior to the robbery incident, the police had received information that the appellant and others were planning to dispose of some electronics. Based on the information, in an ambush laid by the police, the appellant and the co-accused were arrested with the said stolen items. The accused were subsequently charged with and convicted of the two counts against them.

Based on a concurrent finding of facts, the court below found the appeal to be unmeritorious and dismissed same. In the subsequent appeal to this court, the appellant in his brief of argument formulated a sole issue for determination as follows:-