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CaseLaw

Osung Vs. State (2012) CLR 6(j) (SC)

Judgement delivered on June 8th 2012

Brief

  • Confessional statement
  • Proof beyond reasonable doubt
  • Unchallenged evidence
  • Concurrent finding of fact
  • Contradiction in judgement

Facts

The appellant was charged with the offence of Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Decree No 5 of 1994, now Section 1 (2) (a) of the Robbenr and Firearms (Special Provisions) Act Cap. R11 Laws of Federation of Nigeria 2004. The original charge in the case was against only two accused persons, which charge was amended to include four other accused persons with the appellant as the 6th accused person. All the six accused persons pleas were taken and they all pleaded not guilty.

On the 19/11/1996, when the matter came up for hearing, three (3) of the accused persons were reported to have died in prison, and upon the presentation of their death certificates, their names were struck out, leaving only three (3) accused persons on the charge sheet. The three accused persons pleas were also taken and again they pleaded not guilty.

At the hearing, the prosecution called four witnesses while the appellant herein testified on his own behalf and called no witness. The confessional statements of the appellants, which were tendered without objection, were admitted as Exhibits 9, 10 and 11 respectively.

At the conclusion of hearing, the trial tribunal held that the prosecution has proved its case beyond reasonable doubt, found the appellant guilty of the offence charged and after conviction sentenced him to death. In arriving at its conclusion, the trial tribunal found as follows:-

  • "In view of Exhibits 4, 7 and 9, I find that the denial of this offence by DW1, DW3 and DW5 in this tribunal is of no consequence. The question is, was the operation carried out by DW1. DW3 and DW5 along Oron Road, Oron, opposite the Apostolic Church Oron on 17/6/93 an armed robbery? The evidence that when the robbers surrounded the vehicle which stopped at that point to enable the ladies in the vehicle dis-embark they were armed with matchets, daggers and knifes was not contradicted. Since this piece of evidence went unchallenged I accept and believe it notwithstanding the evidence to the contrary by DW1 in Exhibit 4 that "none of them was armed". I find that the operation whereby PW1 and PW2 were attacked and dispossessed of their money at Oron Road, Oron on 17/6/93 was armed robbery. On the basis of the evidence adduced by the prosecution in this case which evidence is largely unchallenged coupled with the confession made by the accused persons as contained in Exhibits 4, 7 and 9, I find that the prosecution has proved its case beyond reasonable doubt and I so find each of the accused persons guilty as charged".

The appellant herein was dissatisfied with the decision of the trial tribunal and thus appealed to the Court of Appeal, Calabar Division herein after called the lower court. As can be gleaned from the briefs of argument filed by the parties, the lower court affirmed the decision of the trial tribunal and dismissed the appeal. However, by a majority of 2-1, the order of sentence to death was affirmed while the minority judgment of Justice Akaahs, JCA, commuted the death sentence to 21 years imprisonment.

The appellant was again dissatisfied with the judgment of the lower court and has appealed to this court.

Issues

  • 1
    Whether the Court of Appeal was right in holding that the Chairman of the...
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