ADEBESIN v. STATE

Briefly, the Respondent’s case in the trial Court is that the appellant, on 26th September, 2002 by 8.00 p.m. came into the Video rental shop in the Saje Maternity neighbourhood of Abeokuta. Appellant came into the shop with a toy gun and a mask and assaulted the PW1 in an attempt to rob him. Appellant on the other hand said he went to the shop to collect the sum of N250.00 he earlier paid to an unidentified person for a video cassette. He admitted there was a fight between him and the sales boy, the PW1 and that the fight attracted the PW2 who joined in beating him and the PW3, the husband of PW2 and others. He denied the charge of attempted robbery of PW1.

To prove its case, the prosecution called five witnesses. The appellant took the stand in his defence. He said he went to the video shop to recover the fee of N250.00 he paid, that he was abused by the PW1. He said he slapped the PW1 and a fight ensued between the two of them, attracting other people to the scene. He denied wearing a mask, He was not issued a membership card nor was he issued a receipt for the money he paid. He claimed he made his statement under duress and that he did not commit the offence with which he was charged.

He called one other witness, the principal Registrar of the Chief Magistrates Court, Abeokuta, who came under subpoena to tender a certified true copy of Charge No.MA/721C/02 which was admitted and marked Exhibit F. At the end of the trial, the learned trial Judge, Shoremi, J, considered the evidence adduced by each side and addresses of learned Counsel for the parties and came to the conclusion that:
“The accused person to me is not a witness of truth. His evidence in Court is an afterthought.”

His Lordship convicted, and sentenced, the appellant to life imprisonment.

Appellant, being aggrieved, challenged his conviction and sentence before the Court of Appeal, Ibadan Judicial Division.
Fasanmi, JCA, who authored the opinion of the Court below held that:
“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 PW and the appellant were dragging with themselves.”

Relying on Section 15 (1) of the Robbery and Firearms (Special Provisions) Act 1990 for the definition of offensive weapon, he held that the available facts proved attempted robbery simpliciter since a toy gun does not qualify as offensive weapon.

The Court below allowed the appeal in part, set aside the conviction for attempted armed robbery and imprisonment for life in place of conviction for attempted robbery simpliciter and sentence of 14 years imprisonment, effective from the date of judgment of the trial Court, 21st June 2005.

Not yet satisfied, the appellant challenged the judgment of the Court below on three grounds contained in the notice of appeal filed in the Registry of the Court below on 21st April, 2010. I shall say more on the grounds of appeal in due course. Parties by their respective learned Counsel filed and exchanged briefs for argument.

In the appellant’s brief, settled by Olukunle Agbebi,, Esq, the following three issues were distilled from the grounds of appeal for resolution by the Court:
“1. Whether the wholesale adoption of the Respondent’s allegation against the appellant by the Court of Appeal without considering the appellant (sic) is not an infringement of his fundamental right to fair hearing under the Constitution of the Federal Republic of Nigeria.
2. Whether the prosecution at the trial proved a case of attempted robbery against the appellant beyond reasonable doubt particularly in the light of the evidence adduced.
3. Whether the learned trial Judge properly evaluated the evidence before the Court and the defence put up by the appellant was considered.”

In the Respondent’s brief, settled by Akin Osinbajo, Esq,-the then Honourable Attorney-General of Ogun State, the following three issues were presented for the Court to resolve:
“i. Whether their Lordships at the Court below breached the fundamental right of the appellant to fair hearing in arriving at their decision.
ii. Whether the prosecution proved a case of attempted robbery against the appellant having regard to the evidence adduced.
iii. Whether the learned trial Judge and their Lordships at the Lower Court considered the defence put up by the appellant before arriving at their conclusion.”

With profound respect, learned Counsel for the appellant has managed to confound and complicate a straightforward appeal out of sheer ignorance or tardiness or both. The three grounds of appeal are hereunder reproduced, in part, shorn of their particulars:
“Ground One: That the learned Justices of the Court of Appeal erred in law and in fact in upholding the decision of the trial Court…
Ground Two: The learned Justices of the Court of Appeal erred in law and in fact in upholding the conviction of the appellant…
Ground Three: The learned Justices of the Court of Appeal erred in law by adopting the allegation of the

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Respondent at the trial Court…” (Underlining mine).

A ground of appeal, as understood in the appellate practice, is the allegation of error of law or fact made by an appellant as the defect in the judgment appealed against and on which it is relied upon to set the judgment aside. See Metal Construction WA Ltd v. Migliore (1990) 1 NWLR (Pt. 152) 200 at 311.

It is the error of law or fact alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set the judgment aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party. See Albert Akpan v. Senator Effions Bob & ors (2010) 43 NSCQR 409 at 444 ratio 1 per I. T Muhammad, JSC. It goes without saying that the reason(s) must be founded either in law or fact but not both in one ground of appeal. In other words and consistent with the definition of ground of appeal above, the error constituting a particular ground of appeal is either error of law or error of fact, but never of law and fact.

It is not permitted to combine a complaint of error in law with a complaint of error in fact in a ground of appeal. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Chidiak v. Laguda (1964) NMLR 123; Amadi v. Okoh (1977) 7 SC 57.

Section 233 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) draws a distinction between appeal as of right and appeal with the leave of the Court below from which the appeal emanates or the Supreme Court. The Section provides in its subsection 2:
“S.233(2): An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases:
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(b)………………(c)
(d) ……………..(e) and (f).
Section 233 (3) provides:
“Subject to the provisions of sub-section (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
An error of fact which constitutes a ground of appeal other than ground of law alone falls within the above Section and cannot be raised without the leave of the Court of Appeal or the leave of the Supreme Court first sought and obtained. It makes no difference that the error of fact for which leave is needed is combined with error of law for which leave is not required. The combination should not be made in any case.
If anything, the situation is more confounded for the reason that a ground of appeal cannot be a ground of law and a ground of fact at the same time. See Nwadike v. Ibekwe (supra).

Each of the grounds 1 and 2 in the appellant’s notice of appeal alleges error in law and fact as shown earlier in this judgment. This Court is ill-equipped to split a single ground of appeal complaining of error in law and error in fact to divine what part is founded on law and what part is based on fact. The two grounds are incompetent and are hereby struck out. See Aniekwe v. Okereke (1996) 6 NWLR (Pt.452) 60 ratio 4; Nwadike v. Ibekwe (supra); Amadi v. Okoli (supra); Biogom v. Awam (1995) 7 NWLR (Pt.410) 692.

The appellant is left with only ground 3 in his notice of appeal. Learned Counsel for the appellant did not marry either of his issues 2 and 3 with any ground of appeal as he ought to have done but he did indicate that issue l was framed from ground 3. It is therefore safe to assume, and I do assume, that issues 2 and 3 were distilled from either grounds 1 and 2 or both. The two issues must share the fate of the incompetent grounds of appeal which gave rise to them. They are hereby struck out. Appellant is left with issue 3 distilled from ground 3 of the grounds of appeal.

Respondent’s issues 2 and 3 were obviously distilled from appellant’s grounds 1 and 2 which have been struck out. The said issues are also struck out as having been framed from incompetent grounds of appeal. All arguments arising therefrom are accordingly discountenan ced. Issue 3 is not appropriate in appeal against the judgment of the Court below. It raises the question of consideration of the defence of the appellant in the Court below and the trial Court. In any case, appellant did not raise, and could not have, raised a defence in the Court below which, not being a Court of trial, only heard his appeal.

Issue 3 in the Respondent’s brief is incompetent for the following reasons:
1. Consideration of the appellant’s defence is primarily a function of the trial Court before which the defence was advanced. It can be raised in the Court of Appeal but the appellant cannot jump the Court of Appeal to raise it as an issue in this Court.
2. Appellant could not have presented a defence for consideration before the Court of Appeal as he was not tried in that Court. The Court below can only review a consideration of the defence raised by the appellant by the trial Court and affirm or reject same and a decision of the Court of Appeal in this respect will form a proper issue before this Court.

The issue is struck out. I will consider the submission of learned Counsel for the Respondent as a reply to the appellant’s Counsel’s argument on the issue.

Appellant’s complaint is the alleged wholesale adoption of the Respondent’s allegations against him by the Court of Appeal

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without any consideration of his defence. This, learned Counsel for the appellant argued, is a denial of the appellant’s right to fair hearing under the Constitution of the Federal Republic of Nigeria 1999 (as amended).

He referred to Adamu v. State (1991) 4 NWLR (pt. 187) 530; Orugbo v. Una (2002) 16 NWLR (Pt.792), 175. He argued that the Court below did not consider the facts adduced by the appellant in the trial Court but relied exclusively on the case of the respondent as the basis of its judgment affirming the judgment of the trial Court, thereby denying the appellant his right to a fair hearing. This, Counsel argued, caused a miscarriage of justice.

He said the appellant was denied a fair hearing in that the Court below slanted its consideration of the evidence in the trial Court in favour of the respondent to the detriment of the appellant. Learned Counsel referred specifically to page 104 line 16 of the records wherein the Court below stated: ‘The only eye witness of the incident was PW1, who testified…” and argued that if PW1 who was a participant in the incident can be called an eye witness then the appellant qualifies to be described as eye-witness.

Further, learned Counsel referred to page 105 line 23 of the record and argued that the statement therein credited to the appellant by the Lower Court was not the full text of the appellant’s statement in Exhibit C2 and that the said portion of Exhibit C2 is neither an admission of the offence of attempted armed robbery nor is it an admission of using a toy gun for an illegal purpose.

With reference to page 107 lines 5 through 16 of the record he argued that the Lower Court failed to consider the defence of the appellant. He relied on Archibold Criminal Pleadings, Evidence and Practice 2000 Article 19-44 at page 1632 and R v. Wheeler 52 CR App. R. 28 at 30 and said that the prosecution failed in its duty to disprove the defence put up by the appellant and so could not be said to have proved its case beyond reasonable doubt.

He contended that both at the trial Court and the Court below, the appellant maintained that he had gone to the video shop to collect refund for a video tape for which he paid and which was not supplied to him and that an altercation ensued as a result of the PW1’s behaviour to him. He said that the two Courts below failed to consider this defence which was not rebutted by the respondent. He referred to page 107 line 16 of the record and argued that:
“…the finding of the learned Court of Appeal indicates clearly that it completely failed to consider the defence put up by the appellant at the trial Court and in the appeal before it and inadvertently argued the case for the Respondent at the Court of Appeal.”

Learned Counsel for the appellant charged the Court below with bias for:
“… disbelieving the Respondent without even considering his story or dispassionately reviewing the trial and judgment of the learned trial Court which did not consider this fact at all.”

He urged the Court to hold that the Court of Appeal infringed the appellant’s right to fair hearing. He urged the Court to resolve the issue in favour of the appellant, and to allow the appeal.

In his reply, learned Counsel for the Respondent reproduced Section 36 of the Constitution (supra) and said that the Section is a codification of the principle of natural justice – audi alteram partem which translates to giving both sides the opportunity to be heard before arriving at a resolution of a dispute.

He referred to page 98 lines 1-3 of the record and contended that the Court below considered the submission of learned Counsel for both sides in the appeal. He referred also to pages 98-103, 109-111 of the record and refuted as a misconception the claim by the appellant that the Court below adopted wholesale the allegations of the Respondent against the Appellant without a consideration of the appellant’s defence. He pointed out that the Court below stated the defence of the appellant at pages 95 lines 27-72, 96 lines 1-2 of the record.
He debunked the assertion that the appellant was denied a fair trial. He said that the Lower Court reviewed the evidence adduced by both sides before the trial Court and came to the conclusion appellant assaulted the PW1 as found by the trial Court. He relied on page 107 of the record.

Contrary to the argument of learned Counsel for the appellant that only a portion of Exhibit C2 was quoted and considered by the Court below, learned Counsel said that the Court below considered the entire statement and concluded that even assuming without conceding that the appellant paid N250.00, there was no justifiable reason for the appellant to threaten the PW1 with a toy gun. He urged the Court not to disturb the concurrent finding of the two Lower Courts. He urged the Court to resolve the issue against the appellant and to dismiss the appeal.

I have carefully considered the record of appeal as well as the submissions of learned Counsel for the parties on the issue drawn from the sole surviving ground of appeal. The meat of the appellant’s complaint is that the learned Justices of the Court of Appeal, in dealing with the appellant’s appeal, were biased against the appellant in favour of the Respondent, resulting to a denial of the appellant’s constitutional right to fair hearing.

According to the appellant, the bias consisted in the wholesale adoption of the allegation made by the respondent against the appellant without a consideration of the case put up by the appellant in his defence.
The issue could have been better drafted. It gives the erroneous impression that the respondent made allegation against

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the appellant before the Court below even though the said Court did not take fresh evidence on appeal. The Court below merely considered the proceedings in the trial Court based on the issues raised and argued by the parties and affirmed the decision of the trial Court.

In his argument before this Court as contained in the brief he adopted and relied on at the hearing of the appeal, learned Counsel for the appellant never complained that the trial Judge was biased in his judgment which was affirmed by the Court below. The allegation of bias must originate from the trial Court and condoned by the Court below in affirming the decision of the trial Court before the Court below can be said to be biased.

An established case of bias or likelihood of bias against a court or tribunal is a factor vitiating the proceedings. If an allegation of bias is made against a Judge and the circumstances are such that right-minded members of the public would think there is substance in the allegation, the Judge should recuse himself from further proceedings in the matter. See Onigbede v. Balogun (2002) FWLR (Pt.99) 1062 ratio 6.
If actual bias is proved, as the appellant purports to do, the proceeding is flawed for contravention of Section 36 of the Constitution (supra) providing for right to fair hearing. In the matter at hand, there is no allegation of likelihood of bias which can be dealt with to save the proceedings. It is allegation of actual bias, which, as I said earlier, is a vitiating factor if established in any proceedings.

The complaint here is not that the trial Court did not evaluate properly or at all the evidence before it in reaching the judgment affirmed by the Court below, in which case the Court below could have re-evaluated the said evidence. The Court below cannot be said to have been biased resulting in denial of right to fair hearing when the Court merely affirmed the judgment of the trial Court based on a consideration of the evidence before that Court.

It is not the case of the appellant that in reaching its decision the trial Court was biased and the Court below condoned the bias by affirming the judgment. On the facts of this appeal, it seems to me inappropriate to assign bias resulting to denial of fair hearing to the Court below.

Be that as it may, I will deal with the issue as raised and argued in the briefs. It does not seem to me that every case of denial of right to fair hearing involves bias but every case of proven bias does give rise to a denial of fair hearing to one of the parties to the dispute.

Denial of right to a fair hearing is a logical consequence of bias in any proceeding before a Court or a tribunal. What then is bias? Bias is a state of mind and so is not amenable to precise definition of proof.
See Dange v. Ndukwoji (1992) 1 NWLR (Pt.716) p.221 ratio 1 at page 233; Legal Practitioners Disciplinary Committee v. 13 Fawehinmi (1985) 2 NWLR (Pt.310) at 333; Atano v. AG Bendel State (1988) 2 NWLR (Pt.75) 201;Adio v. AG Oyo State (1990) 7 NWLR (Pt.163) 448 at 452.It is idle to speculate on what goes on in the mind of another person but the inference of bias can be drawn from the proceedings.

Bias can be of three categories:
(1) Peculiar bias as exhibited by a member of the tribunal or Court having a pecuniary interest in the subject matter of the dispute.
(2) Personal bias – existence of close relationship between a member of the tribunal or Court and one of the parties to the dispute, and
(3) Official bias – an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iver v. The State of Madras AIR 195.7 Mad. 623, 626. Appellant’s case falls within the third category of bias, there being no evidence that any of the Justices had pecuniary interest in the matter or related to any of the parties.

Has appellant proved bias in the proceedings of the Court below?
Learned Counsel for the appellant relied on page 104 line 16 of the record, among others, to prove that the Court below was biased against the appellant. In the portion of the judgment referred to, the Court below said:
“The only eye witness of the incident was PW1 who testified…”

I agree with learned Counsel for the appellant that if the PW1 who was a participant in the incident can be said to be an eye-witness to the said incident, then the other participant – the appellant – is also an eye-witness. It therefore follows that the PW1 is not the only eyewitness.
However, this is a minor technical point that has no effect on the judgment of the Court below. At this state in our jurisprudence, technicality must ex necessitate yield place to reality. See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC.
Appellant cannot be allowed to latch on abstract technicality to boost his case to the detriment of substantial justice. What the appellant complained of is trivial or formal or merely academic and not prejudicial to his substantial right. It no way affected the final outcome of the case. See State v. Johnson I. Wash. App. 553, 463 p.2d, 205, 706. It is a harmless error, the doctrine of which permits an appellate Court to affirm a conviction in spite of error appearing on the record. See State v. Michelli La; 301 So 2d 577, 579.

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Learned Counsel also relied on page 105 line 23 of the record wherein the Court below reproduced part of the appellant’s statement, Exhibit C2, thus:
“He refused and l was holding the toy gun on my hand which is my key holder (plastic) then threatened him and hit him on the head. So he held my shirt then I hit him on the head with the plastic gun. There was struggle 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 OPC.”

Learned Counsel for the appellant contended that the full text of Exhibit C2 was not considered, that the portion of the statement reproduced by the Court below is neither admission of the offence of attempted robbery nor is it an admission of using the toy gun for illegal purpose. The Court, in the circumstance, is not bound to reproduce every word in the statement, but only so much of it as it considers germane to the matter before it.

If there is a portion of Exhibit C2 which is exculpatory and was not considered by the Court below in affirming the judgment of the trial Court, it is the duty of learned Counsel for the appellant to refer this Court to the portion. He did not do so. It is not enough to make the bare allegation that the Court below did not consider the full text of Exhibit C2 without showing what portion was not considered and the effect a consideration of the said portion would have had on the judgment.

Appellant said he threatened the PW1 with the toy gun and in fact carried out the threat by hitting the PW1 on the head with the toy gun. It is outlandish for learned Counsel for the appellant to argue, as he did, that the reproduced portion of Exhibit C2, is not an admission of attempted robbery. And if the statement is not an admission of using the toy gun for an illegal purpose, what then is the legal purpose for which the appellant used the toy gun? Learned Counsel did not offer any legal justification for the appellant threatening and hitting the PW1 on the head with the toy gun.

On the other hand, at page 95 of the record, the Court below recorded that: “Appellant gave evidence on his behalf and called one witness.” At page 95 to 95 the Court below stated:
“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 video cassette the previous day.”

At page 97 of the record, the Court below was aware of the breach of principle of formulation of issues in appeal by learned Counsel for the appellant. The record showed:
“It is however observed that Counsel formulated three issues from two grounds of appeal. I must state categorically that Courts have times without number frown (sic) 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.”

Rather than get rid of the excess luggage as it were, the Lower Court proceeded to resolve the three issues distilled from only two grounds of appeal. So far there is nothing in the record from which bias could be inferred. It is the respondent who should complain that the Court below leaned in favour of the appellant to resolve issues framed in outright breach of established principle of formulation of issues in appeal. One of the issues does not relate to any ground of appeal and ought to have been struck out as incompetent. See Ugo v. Obiekwe (1989) 12 SC (Pt.11) 41; Ono v. JSC Delta State (2000) 7 SC (Pt.11) 1.

At pages 106 to 107, the Court below stated:
“The evidence of the victim which the Court believed stated that the appellant having entered the shop of PW1 used his leg to close the door of the shop and as PW1 wanted to open the door slapped him and demanded for money from 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 confirmed to beat him. I am of the view that the evidence stated above is overwhelming to show assault by the appellant on PW1 with intent to steal the sales of the day from PW1 as against coming to demand for his N250.00 or cassette.”

The Court below continued at page 107 of the record:
“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 because it is on record and appellant himself admitted that he did not pay the money to PW1 and he did not meet PW1’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 PW1? 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 PW1. I am on one with the learned trial Judge that appellant’s defence is an afterthought.”

Above is a paraphrase of the finding of the trial Court by the Court below. It is a finding of fact on expression of belief in the version of the incident given by the respondent and a rejection of the account of the same incident by the appellant. The trial Court enjoys an opportunity, denied an appellate Court except when it takes evidence on appeal, of seeing, hearing and watching a witness testify in Court. The trial Court has the opportunity of watching the body language of a witness and when it decides to believe or disbelieve the witness the appellate Court cannot disturb the

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conclusion unless it is shown to be perverse. See Okolo v. Uzoka (1978) 4 SC 77; Adimba v. Odiese (1990) 3 WBRN 31 at 42.

The two conflicting versions of the same incident cannot be true at the same time. On the facts, the acceptance of one implies the rejection of the other and the trial Court was explicit in its finding of fact that the defence of the appellant was afterthought. Appellant did not appeal against this finding of facts made by the trial Court and affirmed by the Court below. He is deemed to have accepted the said finding and he cannot be heard on appeal to this Court to argue that the Court below was biased when it merely affirmed the findings of fact of the trial Court. See Zacheus Abiodun Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251.

Contrary to the claim of a wholesale adoption of the respondent’s allegation against the appellant and non-consideration of the appellant’s case by the Court below, it is stated at page 110 of the record that:
‘The defence of the appellant that he was at the PW1’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 proceeding.”

The claim that the evidence of the appellant in his defence was not considered has no basis in the record. I said earlier that in resolving each of the three issues wrongly formulated from only two grounds of appeal, the Court below appeared to have bent, though unwittingly, in favour of the appellant, rather than the respondent.

The Court below did not help matters when it held that attempted robbery simpliciter carries on conviction a term of 14 years minimum and 20 years maximum punishment and then reduced the imprisonment for life imposed by the trial Court to 14 years imprisonment with effect from the date of the judgment of the trial Court. This came as a result of flawed interpretation of provisions of the Robbery and Firearms (Special Provision) Act Cap. 398 Laws of the Federation 1990.

Section 2 (1) under which the charge was laid provides:
“Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”

A sentence of imprisonment for life is not within the contemplation of the above Section. However, the evidence upon which the appellant was convicted brought his case outside Section 2 (1) of the Act and within Section 2 (2) (b) thereof.
Section 2 (2) (b) provides:
“If (a)-(b) at or immediately before or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person the offender shall upon conviction under this Act be sentenced to imprisonment for life.” (Underlining mine).

The appellant as the offender was alleged and proved, to have used personal violence to the PW1 at the time of the commission of the offence, thereby rendering himself liable “upon conviction under this Act” to imprisonment for life. Once the Court finds that the case proved against any person falls under Section 2 (2) (b), the convict can be sentenced to life imprisonment notwithstanding the Section under which he was tried and convicted, provided that he was convicted “under this Act.” See also Section 172 of the Criminal procedure Act to the effect that a person tried for misdemeanour (a lesser offence) will not be acquitted if felony (a higher offence as in the case at hand) is proved.

It is the isolated interpretation of Section 2 (1) of the Act to the exclusion of Section 2 (2) that led the Court below to the error of setting aside the sentence imposed by the trial Court having convicted the appellant “under this Act”. Though an honest mistake, does this show a bias against the appellant? He is a beneficiary of the error.
In my view, based on the record, not only is the allegation of bias against the Court below unfounded, the Lower Court leaned unwittingly, in favour of the appellant by setting aside the sentence imposed pursuant to Section 2 (2) (b) of the Act under which the appellant was convicted and which conviction the Court below affirmed.
My Lords, it has become fashionable for a certain category of learned Counsel to rake up unfounded claims of bias against the trial Court and the Court below, in some cases in more vocal terms than the appellant herein. These allegations are serious and reflect adversely on the adversary process of our jurisprudence. They should not be made unless Counsel making them has facts in or out of the records to substantiate same.

To say that a Judge is biased in the resolution of dispute before him is no less than saying that the Judge is in breach of the sacred, solemn and judicial oath administered on every Judge to dispense justice without fear or favour, affection or ill-will to all manner of men. We all took, and are bound by, the solemn oath and a false and unsubstantiated allegation of breach of the said oath is no less a serious matter than proven case of breach of same.

As for the related complaint of denial of right to fair hearing, my Lord Chuwuma-Eneh, JSC had this to say:
Lord Chukwuma-Eneh, JSC had this to say:
“There can be no doubt from the foregoing resume that ‘fair hearing’ has become the whipping principle for Counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. This approach of Counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process before the Courts, be invoked with every sense of seriousness and in appropriate settings…”

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I agree with His Lordship.

In conclusion, I hold that neither the allegation of bias nor its associated denial of right to fair hearing was established by the appellant. The appeal is devoid of merit and consequently it is hereby dismissed on the sole surviving ground 3.

I set aside the order of the Court of Appeal setting aside the life imprisonment imposed on the appellant by the trial Court and imposing in its place a term of 14 years imprisonment. I order that the sentence imposed on the appellant by the trial Court be, and is hereby, restored.

Appeal dismissed. Sentence imposed by the trial Court restored and affirmed.

I. T. MUHAMMAD, J.S.C.: My learned brother, Ngwuta, JSC, permitted me to read before now, the judgment just delivered by him. I agree with his reasoning and conclusion in dismissing the appeal.

From all intents and purposes, and from the prevailing circumstances in this case, the appellant went into the video rental shop in Abeokuta to rob Or else, what was the purpose of closing the door of the shop which he found open? What was his aim of carrying a gun, which was later discovered to be a toy gun?
Could not he have used the gun if it was a real one, to achieve his aim? Why did he slap PW1, the victim? These posers were all answered against the appellant. Appellant was an armed robber. He ought to have been punished as such.

The Court below was right, in my view, by substituting the sentence of life imprisonment for 14 year imprisonment. This is more in conformity with the prevailing law. See Section 2 [1] of the Robbery and Fire Arms [Special Provisions] Act, Cap 398, LFN, 1990.

I dismiss the appeal and abide by consequential orders made in the leading judgment.

M. S. MUNTAKA-COOMASSIE, J.S.C. This is a criminal appeal against the judgment of the Court of Appeal Ibadan Division hereinafter called court below. That court allowed the appeal by the appellant, in part. The trial court Abeokuta judicial Division Ogun State found the Appellant guilty of Attempted Robbery and was convicted under section 2 (1) of the Robbery and Firearms (special Provisions) Act 1999 as amended by the Tribunal certain consequential amendment etc) Act. 1999.

The Appellant was then convicted and sentenced to life imprisonment. It should be re-called that the charge reads thus:-
“That you, Sunkanmi Adebesin (M) on or about the 26th day of September, 2002 at Saje Maternity Video Club, Saje, Abeokuta in the Abeokuta Judicial Division while armed with a Toy Gun attempted to commit the offence of robbery and thereby committed an offence punishable under section 2 (1) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (certain consequential amendments ETC) Act 1999”.

“The prosecution, in order to prove its case, against the accused/Appellant called five witnesses. The Appellant testified on his behalf and called one witness. The statements of the accused person were tendered and admitted as Exhibits A, A1, C, C1, and C2. The Toy Gun allegedly used by the accused person was tendered as Exhibit D, while the face mask was also admitted as Exhibit E.

The trial court found the appellant guilty and convicted him for attempted robbery and sentenced him to life imprisonment.

Aggrieved, the appellant appealed to the court of Appeal, Ibadan Judicial Division. The court of Appeal herein referred as court below, allowed the appeal in part. That court, unanimously sentenced the appellant to 14 years imprisonment.

The appellant, dissatisfied with the sentence, appealed, to the Supreme Court on a Notice of Appeal containing three grounds of appeal. Out of these grounds the appellant herein filed its brief of argument before us and formulated three issues thus:-
1. Whether the wholesale adoption of the respondent’s allegations against the appellant by the Court of Appeal without considering the appellant is not an infringement of his fundamental right to fair hearing under the constitution of the Federal Republic of Nigeria.
2. Whether the prosecution at the trial proved a case of attempted robbery against the Appellant beyond
reasonable doubt particularly in the light of the evidence adduced?
3. Whether the learned trial judge properly evaluated the evidence before the court and if the defence put up by the appellant was considered?

The respondent also filed a respondent brief of argument on 3rd February, 2011 and distilled three issues thereof as follows:-
1. Whether their lordships at the court below breached the fundamental right of the Appellant to fair hearing in arriving at their decision.
2. Whether the prosecution proved a case of attempted robbery against the Appellant having regard to the

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evidence adduced.
3. Whether the learned trial judge and their lordships at the lower court considered the defence put up by the appellant before arriving at their conclusion.

I was privileged to have read in advance the illuminating lead judgment rendered by my learned brother Sylvester Ngwuta JSC and I read very closely the reasons and conclusions reached by my learned lord Sylvester Ngwuta JSC and I adopt them, with respect, as mine. I also agreed that the appeal lacks merit same be dismissed. The sentence imposed by the court below is hereby restored and affirmed.

OLUKAYODE ARIWOOLA, J.S.C.: My learned brother, Ngwuta, JSC obliged me with the draft of the judgment just delivered. I agree entirely with the reasoning therein and the conclusion arrived thereat.

All the issues raised in the appeal were beautifully dealt with that I have nothing new to add. The appeal is surely unmeritorious and should be dismissed. Accordingly, the appeal is dismissed while the judgment of the trial court which sentenced the appellant to life imprisonment is the restored.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother Ngwuta, JSC just delivered. I agree that the appeal lacks merit and should be dismissed.

The appeal before us is against the judgment of the Court of Appeal, Ibadan Division delivered on 17th March, 2010, which same succeeded in part.

The appellant was on 18th November, 2003 arraigned before the trial High Court Ogun State on a one count charge of attempted Robbery contrary to Section 2(1) of the Robbery and Fire Arms (Special provision) Act, 1990 as amended by the Tribunals (Certain Consequential Amendment etc.) Act 1999.

The appellant pleaded not guilty to the charge. The prosecution called five witnesses and tendered five exhibits. The appellant also gave evidence and called only one witness. At the end of the trial, the court found accused/appellant guilty and he was convicted and sentenced to life imprisonment.

The appellant was aggrieved with the judgment of the trial court and lodged an appeal to the lower court which also affirmed the conviction of the appellant but set aside the sentence of life imprisonment, and replaced same with 14 years imprisonment.

The appellant was again not satisfied and hence his appeal now before us. Three issues were formulated from the three grounds of appeal filed. The issues were all reproduced in the lead judgment of my learned brother.

The first issue challenges the denial of the appellant to the right of fair hearing. In otherwords, it is the appellant’s contention that he was not afforded a fair hearing at the trial court, he therefore laments the Court of Appeal by aligning with the trial court’s decision which was an infringement of the Constitution of the Federal Republic of Nigeria. The general rule as provided by the Constitution is certainly trite that the principle of fair hearing is not negotiable. The question however, is whether the appellant was infact denied such right in the case at
hand. If the answer is in the positive, the outcome of the entire proceeding would be vitiated and nullified. The effect of such denial will certainly be more critical in a criminal trial.

The law is well established in our judicial adjudication that the duty of the trial court is to take the appellant’s plea for the arraignment of the offence charged, I also hasten to say that throughout the record of proceedings, there is no indication of any complaint raised against the procedure of the arraignment up to the conviction of the appellant. It is noteworthy to state also that the appellant was well represented by a counsel at the said trial. The essence and purpose of a representation is to ensure that the accused’s interest is adequately protected. The counsel could not have feigned ignorance of this duty owed to his client, afterall that was the reason for his engagement.
I also seek to emphasize that it is not open to the Court of Appeal to conduct a trial, rather its power is to review the procedure adopted by the trial court for purpose of ensuring compliance. The appeal court in otherwords must be confined within the contents of the record of appeal before it and not go on a frolic of its own by fishing for information or facts not contained there in the record before it.As revealed on the record, the evidence of ‘PW1’, ‘PW2’, ‘PW3’ and also the appellant’s statement – exhibit C2 are all very relevant, Specifically the appellant’s statement is confessional by nature and it also tallies with the testimony of ‘PW1’. Exhibit D, the toy gun is a very strong corroborating factor.
In a nutshell, the evidence of ‘PW1’ reveals the following salient points:-
That the appellant came into the shop and requested to see the shop assistant’s (victim’s) boss; the appellant used his leg to close the door; when the shop assistant wanted to open the door the appellant slapped him and brought out a gun and demanded for the proceeds of the day’s sales. It was only when the victim grabbed the gun and broke it into two that he realized that it was a toy gun.
The evidence of ‘PW2’ and ‘PW3’ both corroborated that of ‘PW1’. The appellant’s confessional statement at pages 15 – 23 of the record was obvious wherein he admitted the use of a gun and a face mask – Exhibit E. The fact that Exhibit D turned out to be a toy gun is no reason to diminish the effect of the charge. This is because from all indications, the appellant intended to commit the act of robbery and would have succeeded but for the shop assistant’s resistance.

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Therefore, the discovery that the gun was unreal is of no moment.
The totality of the submission on the first issue is, as rightly argued by the counsel to the respondent, that the lower court fully considered and appreciated the appellant’s defence wherein he testified that there was an altercation between the appellant and ‘PW1’ (the victim). The said issue is resolved against the appellant.
Issue 2 is whether the prosecution had proved the case of attempted robbery against the appellant?
The law is trite that the standard of proof in criminal cases must be beyond reasonable doubt and not shadow of all doubts. There must therefore be evidence which identified the person accused with the offence and further that it was his act which caused the offence, Mere suspicion is not enough.

In the case at hand, it is worthy to note the circumstance of the appellant as how he came into the shop on the pretext that he wanted to hire a video cassette; he later suddenly closed the door of the shop with his leg and proceeded to attack ‘PW1’ and demanded for the proceeds of the day’s sale. When the appellant slapped ‘PW1’, he also put up a courageous defence which led to the appellant’s arrest.

I seek to state further that the evidence of ‘PW1’ was uncontradicted. The appellant also did not deny his presence that he was in P W l’s shop on the day of incident. Furthermore, he did admit that he used his toy gun to threaten PW1, though for a different reason. It is however intriguing that the appellant could not explain why he had to take such a measure. The said issue, I hold is also resolved against the appellant.

The 3rd issue raised by the appellant is whether the defence was considered? In otherwords, the appellant’s story informed that he was at the shop for a refund of his N250.00k registration fee. At page 33 lines 24 – 31 of the record, the trial judge said:-
“The accused person to me is not a witness of truth. His evidence in court is an after thought.”

Also at page 32 lines 30 – 31 the learned trial court judge held further and said:-
“The evidence of ‘PW1’ is straight forward and despite vigorous cross examination remains (sic) solid.”

The trial court did not believe the denial of exhibits C, C1 and C2 by the appellant. Having had the opportunity to observe the appellant while he was giving evidence, that court believed that he did not tell the truth. The trial court preferred the prosecution’s/respondent’s case to that of the appellant.

Contrary to the allegation levied by the appellant, the evidence before the trial court was well evaluated and there was no miscarriage of justice. The lower court in the circumstance was on a firm ground in upholding the findings by the trial court before it.

In the result, I have no reason also to upset the concurrent findings by the two lower courts. This is especially where the appellant did not adduce any special circumstance warranting the doing of same. It is not for this court to disturb such findings as a matter of course. The appeal is devoid of any merit and I also dismiss same in terms of the lead judgment of my learned brother Hon. Justice Ngwuta, JSC. I also abide by all the orders made there in the lead judgment.