In the Supreme Court of Nigeria, Holden at Abuja, on Friday, the 15th Day of February, 2008; Before Their Lordships: Niki Tobi, Sunday Akinola Akintan, Walter Samuel Nkanu Onnoghen, Ibrahim Tanko Muhammad, Christopher Chukwuma-Eneh, Justices, Supreme Court

SC.186/2006

BETWEEN

SABURI ADEBAYO............APPELLANT

AND

ATTORNEY GENERAL

OF OGUN STATE ...............RESPONDENT

Judgment (Delivered By L.T. Muhammad, JSC)

The salient facts giving rise to this case as contained in the printed record of appeal are that on the night of 11th March, 1994, at about 1.00 a.m. a gang of men armed with knives and cutlasses invaded Elekuro village near Wasimi Railway Station. Among the houses they entered were those of PWs 1 and 2. They were demanding for money from PWs 1 and 2 who received severe beatings from the gang when they (PWs 1 and 2) said they had no money in their houses. Eventually, PWs 1 and 2 each managed to find N100.00k (one hundred Naira) to give to the armed gang. PW 1 was wounded during the beating. His Suzuki Motor Cycle with Registration No. OG7842 DA was taken away by the gang.

When the news of the presence of the armed gang became known to some fellow villagers they came out and the robbers fled. The villagers gave a chase during which the accused/appellant was caught and arrested by PW 3 who was a night guard on duty at the Universal Trust Bank which was situate in the vicinity. On arrest, the accused was found to be carrying a cutlass and a butcher's knife which were recovered from him. He was then handed over to PW 4 who was on duty at Wasimi Police Post in the night in question. Handed over to PW 4 also were the cutlass and the butcher's knife recovered from the accused person. Discovered also from the scene of the crime was the Suzuki motor cycle which was earlier in that night stolen from the house of PW1. Two damaged wall clocks hidden in that bush were also recovered. The accused/appellant made a confessional statement to PW 5 which was tendered in evidence and marked as Exhibit 'A'.

I think my spring board in commencing the determination of this appeal is what the learned trial judge said with regard to the two counts said to have been tried jointly by the judge. On page 40, lines 30-32 of the printed record of appeal, the learned trial judge stated:

"For convenience sake I propose to deal with the 2nd and 3rd counts of the charge first before coming back to deal with the charge of conspiracy in count 1".

The learned trial judge went ahead to treat the two counts, making a finding that with regard to the 2nd and 3rd counts, the accused person was charged under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990. The learned trial judge set out the provisions accordingly. I think there was a mistake from the side of learned counsel for the appellant to say that the learned trial judge considered counts 1 and 2 of the charge together. But assuming that the intention of the learned counsel for the appellant was to challenge the treatment of counts 2 and 3 of the charge together as done by the learned trial judge, I would still not have found anything wrong in that. This is because, having studied the judgment of the court below, I find that that court affirmed the style adopted by the trial court in convicting and sentencing the appellant on all the counts charged, particularly counts two and three. I think the language used in the judgment of the court below is clear enough to show that the court was in agreement with the whole decision taken by the trial court, if there was any fault anywhere that court could have spotted it out.

In any event, what is fundamental in any criminal trial is the sustenance of justice and fair hearing. And, where the trial court is satisfied that the prosecution has proved its case beyond reasonable doubt as is required by the law, I then fail to see where the joinder of the counts on offences which are similar in nature and committed at almost the same time by the same accused person(s) can cause any miscarriage of justice.

It is the decision of this court in many decided cases that in deciding upon whether there had been miscarriage of justice, the Court of Appeal dealing with the issue raised must be satisfied that it is substantial, not one of mere technicality, which had caused no embarrassment or prejudice to the appellant. See: OKEGBU V. STATE (1979) 12 NSCC 151 at 156.

In the appeal on hand, count two of the charge accused the appellant of robbing one Saliu Afolabi of the sum of N100.00 and a Suzuki Motor Cycle with Reg. No. OG 7842 DA while armed with cutlasses contrary to 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 three of the charge accused the same appellant of robbing one Oladehinde Segun of the sum of N100.00 while armed with cutlasses, contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990.

The accused pleaded not guilty to each of the counts which were read to his understanding separately. The learned trial judge recorded accused's pleas to the two counts separately. (See page 13 of the record of appeal) PW1 and PW2 were the victims of the offences charged under counts 2 and 3. After evaluation of evidence and making his findings, the learned trial judge, in applying the provisions of the law relating to the offences charged elected to treat counts two and three together because of their similarity.

He finally pronounced the sentence in respect of each count but that all the sentences were to run concurrently. The court below affirmed the trial court's decision. I can hardly fault these concurrent decisions. In any event, the punishment meted to the appellant on the 2nd count is "death by firing squad." Equally, the punishment meted under count three is "death by firing squad." Even if there were one hundred counts and each fetching the punishment of death, I believe there is only one death. All the sentences must, as a matter of fact, run concurrently as the convict must taste the pangs of only one death.

I do not think it is that easy to secure a discharge order for the appellant merely on a technical point that the issue raised by learned counsel for the appellant before the court below was not considered.

This appeal is very unmeritorious. I think it was filed in order to buy more time for the condemned prisoner. That venture has failed and the appellant, who was bold enough in executing his nefarious and merciless operations, should equally be bold enough to pay the price of his deeds.

I dismiss the appeal and affirm the concurrent decisions of the two courts below.

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