SUNKANMI ADEBESIN V. THE STATE (2010)

SUNKANMI ADEBESIN V. THE STATE

(2010)LCN/3629(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of March, 2010

CA/I/250/06

RATIO

EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL CASES

“Proof beyond reasonable doubt stems out of the compelling presumption of innocence in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of doubt that the person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probability”.

See also Section 138 subsection 1 of the Evidence Act which states:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt” PER MODUPE FASANMI J.C.A.

CRIMINAL LAW: WHAT CONSTITUTES AN ATTEMPT

See the case of IDEN VS. STATE (1994) 8 N.W.L.R Part 365 page 719 at 727 – 728 per Niki Tobi J.C.A (as he then was) where he held:

“To constitute an attempt, an act must be immediately connected with the possible commission of the substantive offence. In other words, there must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence”

See also the cases of IBRAHIM VS. STATE (1995) 3 N.W.L.R. Part 381 page 35 at 45 per Pats-Acholonu J.S.C., NWANKWO VS. FEDERAL REPUBLIC OF NIGERIA (2003) N.W.L.R. Part 809 Page 1 at 38 and JEGEDE VS. STATE (2001) 14 N.W.L.R. Part 733 page 264 at pages 282-283. PER MODUPE FASANMI J.C.A.

EVIDENCE: WHETHER A SINGLE CREDIBLE WITNESS CAN ESTABLISH A CASE BEYOND REASONABLE DOUBT

A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. In other words, the evidence of one credible witness, accepted and believed by the Court is sufficient to justify a conviction. See AKALEZI VS. STATE (1993) 2 N.W.L.R. Part 273 at 1, BABUGA VS. STATE (1996) 7 N.W.L.R Part 460 at 279 and SULE VS. STATE (2009) 17 N.W.L.R Part 1169 page 33 at 57-58 paragraphs H-B PER MODUPE FASANMI J.C.A.

COURT: ATTITUDE OF THE COURT TOWARDS EVALUATION OF EVIDENCE

The evaluation of evidence and the ascription of probative value to the evidence are the primary duties of a trial Court which had the opportunity of seeing, hearing and assessing the witnesses. See the case of MAIKUDI VS. MUSA (2004) ALL F.W.L.R Part 230 page 1096 at 1109 paragraphs E-F.

The general principles for appraisal and evaluation of evidence are set out by the Supreme Court in the case of MOGAJI & ORS. VS. ODOFIN AND OTHERS (1978) 4 S.C. at page 373. In deciding this, the Court must give consideration to and evaluate all the evidence led in the case as a whole. Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. See ATOLAGBE VS. SHORUN (1985) 1 N.W.L.R at 360, AGBANIFO VS. AIWERIOHA (1988) 1 N.W.L.R at 325 and PAULINUS ONWUCHURUBA VS. ANTHONY ONWUCHURUBA (1993) 5 N.W.L.R Page 185 at 199-200. PER MODUPE FASANMI J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

SUNKANMI ADEBESIN Appellant(s)

AND

THE STATE Respondent(s)

MODUPE FASANMI J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of the High Court of Ogun State sitting at Abeokuta. The judgment was delivered on 21st June 2005. Appellant was arraigned on the 18th of November, 2003 on a one count charge of attempted Robbery contrary to Section 2(1) of the Robbery and Firearm (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment, Etc) Act 1999. Appellant pleaded not guilty to the charge. The Respondent in discharging the burden of proof called five witnesses at the trial and tendered 5 exhibits.
Appellant gave evidence on his behalf and called one witness. At the end of the trial, Appellant was found guilty as charged. He was convicted and sentenced to life imprisonment.

The brief facts of the case are that on the 26th of Nov. 2002 at about 8.00 p.m., the Appellant went into a video rental shop at Saje Maternity Clinic Saje area of Abeokuta and requested for the owner of the shop. He was told that the owner of the shop was not around by the shop attendant. The Appellant used his leg to close the shop’s door and brought out a gun with which he threatened to shoot the shop attendant unless he produced all the sales money for the day. Appellant then slapped the attendant (P.W.1) who then struggled with the Appellant while shouting for help and managed to break what was then discovered to be a toy gun into two. In the course of struggle. P.W.2 came to the scene and on seeing the situation, she also raised alarm which brought her husband P.W.3 to the scene. Appellant was subsequently arrested while trying to escape and taken to the police station where he volunteered his statement.

Appellant in his defence denied attempting to rob the video shop but claimed he had gone to the shop to collect a refund of money he earlier paid for the rentage of a video cassette the previous day.
At the close of the case for the prosecution and the defence, learned Counsel for both parties addressed the court. The learned trial judge in his judgment delivered on the 21st of June 2005 found the Appellant guilty as charged convicted him and sentenced him to life imprisonment. It is against this judgment that the Appellant has appealed to this Honourable court. Appellant’s notice of appeal is dated 20th July 2005 but filed on 21st July 2005 wherein he filed three grounds of appeal. By the amended notice of appeal dated 26th February 2008 but filed on 29th February 2008, Appellant filed two grounds of appeals. The Amended notice of appeal was deemed properly filed and served on the 28th of February, 2008 by the order of this court.

Appellant distilled three issues for determination as follows:
(1) Whether the prosecution proved a case of attempted robbery against the Appellant beyond reasonable doubt particularly in the light of the evidence adduced
(2) Whether the learned trial judge properly evaluated the evidence before the court and if the defence put up by the Appellant was considered
(3) Did the learned trial judge have the jurisdiction to impose a sentence of life imprisonment on the Appellant.
The Respondent on its part also distilled three issues for determination as follows:-
(1) Whether the prosecution proved a case of attempted robbery against the Appellant having regard to the evidence adduced
(2) Whether the learned trial judge considered the defence put up by the Appellant before arriving at the conclusion and
(3) Whether the trial judge had jurisdiction to impose a sentence of life imprisonment
It is however observed that Counsel formulated three issues from two grounds of appeal. I must state categorically that courts have times without number frowned at the proliferation of issues by Counsel and I am also inclined to this view and adopt same. It is hoped that Counsel will heed the advice.
Since the issues formulated by the parties are the same but couched differently, the Court will adopt the issues formulated by the Appellant in the determination of the appeal.

Issue One
Whether the prosecution proved a case of attempted robbery against the Appellant beyond reasonable doubt particularly in the light of the evidence adduced.
Learned Counsel for the Appellant submitted that Section 36 subsection 5 of the 1999 Constitution of the Federal Republic of Nigeria presumes an accused person innocent until he is proved contrary. The burden placed on the prosecution is not discharged until the guilt of an accused person is properly established. Learned Counsel cited the cases of IDEMUDIA VS. THE STATE (1999) 7 N.W.L.R Part 610 page 202 at 215 paragraphs F-G and ESANGBEDO VS. THE STATE (1989) 4 N.W.L.R. Part 113 at 57.
Learned Counsel for the Appellant submitted that Appellant was charged with attempt to commit the offence of robbery punishable under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments Etc) Act 1999. He contended further that for an act to constitute attempted robbery, the accused must, with intent to steal, assault the victim or use or threaten to use actual violence in order to obtain the thing intended to be stolen. Learned Counsel for the Appellant referred to the case of OZIGBO VS. C.O.P (1976) 2 S.C at page 67 per Alexander C.J.N where his Lordship held:
“To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than the mere preparation for the commission of the offence”.
He submitted that the essential ingredient for the prosecution to prove in this case will be that of assault by the Appellant on another with the intent to steal something. Learned Counsel referred to the statements made by the Appellant which were admitted during trial as exhibits C, C1 and C2. In those statements, the Appellant consistently maintained that he went to the video rental shop first the day before and paid a shop attendant (different from P.W1) for the rental of a video cassette which said video cassette was not available Appellant further stated that he repeated the visit to either collect the video cassette or a refund of his money but met a different attendant (P.W.1) in the shop. He said the scuffle between him and P.W.1 started as a result of the failure of P.W.1 to give him a refund of his money having failed to give him the video cassette containing the film he desired to see. He also stated that P.W.1 acted in a rude manner.
Learned Counsel for the Appellant submitted that the learned trial Judge failed to scrutinize the prosecution’s case to establish if indeed the prosecution had disproved the defence put forward by the Appellant both in his statement and testimony during the trial before convicting the Appellant. He submitted that this failure has led to miscarriage of Justice. It is the duty of the Courts to protect the Constitutional rights of every citizen including the Appellant by ensuring that those rights are not negated by any one on any occasion. He referred to the case of IKENNE VS. C.O.P. & MNANNA WACHUKWU (1986) 4 NWLR Part 36 at 473.
He submitted that the Respondent has failed to prove whether the overt acts were an attempt to rob the shop owner or an attempt by the Appellant to recover money he had earlier paid. He urged the Court that the failure of the Respondent to prove the actual intent of the Appellant has created doubt and which doubt must be resolved in favour of the Appellant. He submitted further that, mere presence at the scene of crime or opportunity to commit crime does not constitute sufficient, cogent and unequivocal evidence to sustain a conviction for attempted robbery. Learned Counsel referred to the case of DANIELS VS. THE STATE (1991) 8 N.W.L.R Part 212 page 715 at 732 paras D-E where it is stated:
“It is not the law that an accused person should be convicted because the Court regarded him as a liar or because he was seen running away from the scene of the commission of the crime with the weapon. What the Court should consider is whether the prosecution has proved its case beyond reasonable doubt against the accused”.
He referred to OKONJI VS. THE STATE (1987) N.S.C.C page 291 at 302 paragraphs 13-14. He urged the Court to resolve issue one in favour of the Appellant.
Learned Counsel for the Respondent in reply on issue one submitted that the Respondent is required to prove the physical act of attempted robbery and the intention on the part of the Appellant to commit the complete offence of robbery. P.W.1 gave evidence of how the Appellant came into the shop and requested to see his boss. He gave evidence of how the Appellant used his leg to close the door, how he wanted to open the door and the Appellant slapped him. He went further to state how the Appellant brought out a gun and demanded for the money of the sales for the day. He stated that it was when he grabbed the gun and it broke into two that he realized it was a toy gun. He started shouting thief, thief before P.W2 and P.W3 came out to his rescue. The evidence of P.W2 and P.W3 corroborated the evidence of P.W.1. Exhibit C, C1, and C2 showed clearly that the Appellant attacked P.W1 with a toy gun.
Learned Counsel submitted that the Respondent has discharged the burden of proof via the evidence of prosecution witnesses. He urged the Court to hold that the learned trial Judge was right to have believed the testimony of Respondent on record on the physical act and the intention of the Appellant to commit robbery on 26/11/2002. He also urged the Court to hold that the Respondent has proved its case beyond reasonable doubt. Learned Counsel urged the Court to resolve this issue against the Appellant.

Section 36 subsection 5 of the 1999 Constitution of the Federal Republic of Nigeria provides:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.
The standard of proof in a criminal case is proof beyond reasonable doubt. This means that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the accused with the offence and that it was his act which caused the offence. See the case of AIGBADION VS. THE STATE (2000) 4 S.C Part 1 at page 1.

The burden of proof in a criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. See the cases of IFEJIRIKA VS. STATE (1999) 3 N.W.L.R. Part 593 at page 59 and BAKARE VS. THE STATE (1987) 1 N.W.L.R. Part 52 at 579 where the apex Court held:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of doubt that the person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probability”.

See also Section 138 subsection 1 of the Evidence Act which states:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”
As rightly stated by the Appellant’s Counsel for the Respondent to succeed, he must prove assault by the Appellant on his victim with intent to commit robbery.
From the evidence on record, was there any assault by the Appellant on P.W.1 with intent to commit the offence of robbery? The only eye witness of the incident was P.W.1 who testified at page 12 of the record stated thus:
“I know the accused person. On 26th September, 2002. I was praying when the accused came to me and I asked him which of the films he wanted. It was about 8.00pm. He said he did not need any but wants to see my boss. I told him he was not around. I said he should give me the message, he refused but he used his leg to close the door. I wanted to open the door but the accused slapped me. I shouted and he started to beat me and demanded for the sales of the day and I said there was no money with me. He had a mask which he pulled to his face. I was struggling with him and he said I should co-operate and he pulled out a gun. I then grabbed the gun on his hand and it broke into two and he raised blows on me again. I then discovered it was a toy gun. We struggled out and I shouted thief! Thief!. A woman came out and held him and he started to beat the woman again. She also shouted and her husband came out. He wanted to escape but was arrested. We took him to Ake and later to Adatan Police Station.”
The witness was consistent and remained unshaken under cross examination. Exhibit C2 is the statement of the Appellant made on 26/10/02 which Appellant admitted he made voluntarily. He had this to say at page 5 lines 15-23 of the record thus:
“He refused and I was holding the toy gun on my hand which is my key holder (plastic) Then I threatening him to hit him on the head. So he held my shirt then I hit him on the head with my plastic gun. There are struggled outside. Later one woman came to the scene there they shout on me and people came to mob me and the plastic gun has been broken. From there they took me to the O.P.C.”
Then from page 5 lines 25-30 of the record of the same exhibit C2 Appellant continued:
“The O.P.C. sent back to the place where it happened for the broken of the gun later. Some hours, they came back with the pieces of the toy gun they recovered from the scene. I brought the toy gun from those who are hawking at Lafenwa market and I can’t identify the person I bought the toy gun from. The face mask is my cap. Bought it in form of a cap and not a mask at Port-Harcourt”.
4th P.W Sgt. Faniran Olukanmi tendered the toy gun (broken) and was marked exhibit D while the face mask was admitted as exhibit E.
The evidence of the victim which the Court believed stated that the Appellant having entered the shop of P.W.1 used his leg to close the door of the shop and as P.W.1 wanted to open the door slapped him and demanded for money for the sales of the day. As he was struggling with him, he told him to co-operate and pulled out a gun. He grabbed the gun from him and it broke into two. It was then he knew it was a toy gun. He continued to beat him. I am of the view that the evidence stated above is overwhelming to show assault by the Appellant on P.W.1 with intent to steal the sales of the day from P.W.1 as against coming to demand for his N250.00 or cassette.
Assuming without conceding that the Appellant actually paid N250.00 for video club registration, would this have been the reason for his action on that day? I think not. This is so because it is on record and Appellant himself admitted that he did not pay the money to P.W.1 and he did not meet P.W.1’s boss the owner of the club in the shop. The question again is having not met the person he allegedly paid N250.00 to as well as the owner of the shop, could the next thing be pulling out a toy gun to threaten P.W.1. The answer is also in the negative. The issue of N250.00 naira registration fee was not the reason for using toy gun to threaten P.W1. I am on one with the learned trial Judge that Appellant’s defence is an after thought.

From the above, the overt acts of the Appellant were steps towards committing the offence of robbery or that there was a clear and unequivocal nexus between the overt act of attempt and the substantive offence of robbery. See the case of IDEN VS. STATE (1994) 8 N.W.L.R Part 365 page 719 at 727 – 728 per Niki Tobi J.C.A (as he then was) where he held:
“To constitute an attempt, an act must be immediately connected with the possible commission of the substantive offence. In other words, there must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence”
See also the cases of IBRAHIM VS. STATE (1995) 3 N.W.L.R. Part 381 page 35 at 45 per Pats-Acholonu J.S.C., NWANKWO VS. FEDERAL REPUBLIC OF NIGERIA (2003) N.W.L.R. Part 809 Page 1 at 38 and JEGEDE VS. STATE (2001) 14 N.W.L.R. Part 733 page 264 at pages 282-283.
A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. In other words, the evidence of one credible witness, accepted and believed by the Court is sufficient to justify a conviction. See AKALEZI VS. STATE (1993) 2 N.W.L.R. Part 273 at 1, BABUGA VS. STATE (1996) 7 N.W.L.R Part 460 at 279 and SULE VS. STATE (2009) 17 N.W.L.R Part 1169 page 33 at 57-58 paragraphs H-B
I am therefore of the view that the learned trial Judge rightly held that the Respondent has established without equivocation the intention of the Appellant to commit the offence of robbery and I so hold. Issue one is hereby resolved against the Appellant.
Issue 2
Whether the learned trial Judge properly evaluated the Evidence before the. Court and if the defence put up by the Appellant was considered.
Learned Counsel for the Appellant submitted that a mere perusal of the records particularly the judgment of the trial Court shows that the learned trial judge did not consider the defence put up by the Appellant at all, neither did he evaluate the evidence before him dispassionately. Learned Counsel for the Appellant submitted that the failure of the learned trial Judge to consider the primary element of the offence of attempt which is intent has occasioned a grave miscarriage of justice. He contended further that the learned trial Judge misdirected himself and erred in law when he failed completely to arrive at a decision on the question of mens rea for robbery. He submitted that no conviction for attempted robbery can be sustained without a clear determination of this point. He referred to the case of QUEEN VS. NWAUGOAGWU (1962) 1 ALL N.L.R AT Page 294 wherein the Supreme Court held:
“Although it is not necessary in every case, for a judge sitting alone to refer separately to each single element of the offence charged, where the evidence raises an issue as to the intent with which certain acts were done, it is essential that the judgment should show how the Judge correctly apprehended the question which he had to decide and to state, in the case of conviction, that after considering all the elements of the offence charged, he found them proved.”
He submitted that if the learned trial Judge had directed himself properly or evaluated the evidence before him, he would not have come to the wrong conclusion that the Appellant was guilty as charged. Learned Counsel urged the Court to set aside the conviction of the Appellant and the sentence imposed on him by the learned trial Judge as same cannot be supported by the evidence adduced. Neither P.W2 nor P.W3 were witnesses to the incident that led to the assault. He urged the Court to resolve the issue in favour of the Appellant.
Learned Counsel for the Respondent in reply submitted that the learned trial Judge gave detailed consideration to the evidence of both parties and finally concluded that the Respondent proved without any doubt the guilt of the Appellant as charged. The defence of the Appellant that he was at P.W1’s shop to request for his N250.00 was sufficiently considered by the learned trial Judge at page 33 particularly lines 24-31 of the record of proceedings. Learned Counsel for the Respondent submitted that no miscarriage of justice was occasioned in the case as the evidence led was properly evaluated by the trial Judge. He referred to EZEONWU VS. ONYECHI (1996) 3 N.W.L.R Part 438 at 499. Learned Counsel for the Respondent urged the Court not to disturb the findings as there are sufficient evidence in support of the evaluation and findings of the learned trial Judge. Learned Counsel for the Respondent urged the Court to resolve the issue against the Appellant.
The evaluation of evidence and the ascription of probative value to the evidence are the primary duties of a trial Court which had the opportunity of seeing, hearing and assessing the witnesses. See the case of MAIKUDI VS. MUSA (2004) ALL F.W.L.R Part 230 page 1096 at 1109 paragraphs E-F.

In the instant appeal, the learned trial judge at page 32 lines 29-32 said:
“The evidence of the 1st P.W. is straight forward and despite vigorous cross examination remained more solid. The defence of the accused is to the effect that there was a fight whereas in his statement especially the confessional one which he wrote by himself, he gave a vivid account of what transpired,”
Again at page 33 lines 24-30 the learned trial Judge had this to say:
“The accused person to me is not a witness of truth. His evidence in court is an afterthought. If not for the courage exhibited by the 1st P.W. the accused would have succeeded in taking away the proceeds of the day which he asked for. Therefore his assertion on the day of the incident is more than preparation to commit an offence but an attempt almost being completed but for the intervention of the courage of the 1st P.W. and the help rendered by the 2nd and 3rd P.W.”
From the appraisal or evaluation of the learned trial Judge on the printed record, I agree with the learned trial Judge that the Appellant is not a witness of truth.
The findings of the trial court are not perversed and have not occasioned any miscarriage of justice. This court will not interfere with same. See the cases of IBEH VS. STATE (1997) 1 N.W.L.R. Part 484 at 632 and AMUSA VS. STATE (2002) 2 N.W.L.R. Part 750 at 73.
When a defence is rejected as an afterthought, it postulates that it is one trumped up belatedly by an accused and it is quite unrelated to the person earlier line of defence in the case. In the case at hand, the Court examined Appellant’s evidence in Court and his statement to the police which was tendered as an exhibit before saying that Appellant is not a credible witness. Issue two (2) is hereby resolved against the Appellant.
Issue 3
Whether the learned trial judge has the jurisdiction to impose a sentence of life imprisonment on the Appellant.
Learned Counsel for the Appellant submitted that the learned trial Judge having made a finding of fact that a toy gun is neither a firearm nor an offensive weapon exceeded his jurisdiction. Learned Counsel for the Appellant submitted that the provision of the law is very clear. He referred to the provision of Section 2 (1) and 2 (2) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 as amended. The learned trial Judge having found that the Appellant was not in possession of an offensive weapon sentenced the Appellant to a term of life imprisonment. He urged the Court to set aside the judgment of the lower Court and should the Court find the Appellant rightly convicted, he urged this Court to enter a much lighter sentence in place of this sentence of life imprisonment imposed by the trial Court.
In reply, Learned Counsel for the Respondent submitted that the Appellant apart from using a toy gun also used actual violence on P.W.1. Going by the provisions of Section 2(1), there is available evidence on the record to justify the decision of the learned trial Judge. Respondent’s Counsel argued further that the learned trial Judge does not lack jurisdiction to impose a sentence of life imprisonment on the Appellant notwithstanding his conclusion that the toy gun found with the Appellant was not an offensive weapon. Learned Counsel urged the court to affirm the decision of the Lower Court and dismiss the appeal.
From the evidence on record, the weapon found with the Appellant during the time of the attempted robbery was a toy gun which broke into two when 1st P.W. and the Appellant were struggling with themselves.
Section 15 sub-section 1 which is the interpretation section of the Robbery and Firearms (Special Provision) Act 1990 defines offensive weapons as:-
“any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.”

It is therefore clear from the above definition that a toy gun is not an offensive weapon under the Robbery and Firearms (Special Provisions) Act 1990. The available facts proved attempted robbery simpliciter since a toy gun does not qualify as an offensive weapon. Attempted robbery simpliciter on conviction is punishable with imprisonment for not less than fourteen (14) years but not more than twenty (20) years. See Section 2 subsection 1 of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
Where the evidence adduced by the Respondent does not support the sentence of the trial Court, then an appellate court will interfere with it. I therefore find the Appellant guilty of attempted robbery under Section 2 subsection 1 of the Robbery and Firearms (Special Provisions) Act 1990. In the premise, I set aside the sentence of life imprisonment passed on the Appellant on the 21st of June 2005 and in its place sentence the Appellant to 14 years imprisonment. Sentence shall begin to run as from the 21st of June 2005 the date the judgment was passed.

STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Modupe Fasanmi (J.C.A.) and I agree with the decision reached. I also set aside the sentence of life imprisonment passed on the Appellant and in its place I hereby sentence the Appellant to 14 years imprisonment which shall begin to run as from when the judgment was passed.

CHIDI NWAOMA UWA, J.C.A.: I read in draft the judgment just delivered by my learned brother M. Fasanmi, J.C.A. The issues were comprehensively dealt with and I adopt same as mine. I also agree with the conclusion setting aside the judgment of the trial court of life imprisonment and substitute same with 14 years imprisonment, sentence to run from 21/6/05 the date of the judgment of the trial court as held in the lead judgment.

Appearances

Olakunle AgbebiFor Appellant

AND

K.M. Ogunfowodu (State Counsel Ogun State) (Ministry of Justice)For Respondent