Audu Aruna & Anor V. The State (1990)

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NNAEMEKA-AGU, J.S.C. 

This appeal came up for hearing on the 5th day of July, 1990. After reading the record and briefs filed by learned counsel for the appellants and the respondent and listening to the oral argument of counsel on both sides, the court summarily allowed the appeal but postponed the reasons for its judgment till today. I now give the reasons for my judgment.

The two appellants were, in the year 1980. in an Armed Robbery Court of the Criminal Division of the High Court of Lagos State presided over by Agora, J. (as he then was) charged on an information with the offence of armed robbery contrary to section 1(2)(b) of the Robbery and Firearms Decree No.47 of 1970. The particulars of the offence were stated as follows:

PARTICULARS OF OFFENCE

Audu Aruna (m) and Victor Audu (m) on about the 4th day of June, 1977 at about 12.00a.m. at Apapa in the Lagos State Judicial Division being armed with offensive weapons to wit, broken bottles robbed one Mishack Ekwueme (m) of the sum of N45.00 and a raincoat value N10.00 and before the robbery wounded the said Mishack Ekwueme.

The names of six witnesses were listed at the back of the information as intended to be called by the prosecution. But in fact only two, that is the complainant and one other person, were called at the trial. Each of the two appellants testified on his own behalf but called no witnesses.

According to the complainant, Mishack Ekwueme, the offence was committed about 11.30 p.m. on the 4th day of June, 1977. He was returning from work. As he was walking along Idowu Street, Olodi, Apapa, he saw four men, including the two appellants standing by the corner of the road. When he wanted to turn into the street. Akogun street leading to his house, they stopped him and engaged him in a dialogue and asked him to search his pockets.

In his attempt to run away from them he ran into Rasco Hotel, Ajegunle, but they pursued him to that place. He pleaded with them to leave him alone, but they refused. The manager of the hotel joined in pleading with them, but to no avail. At the order of one of them who is still at large, the 2nd appellant inflicted a wound on his eye brow with a dagger. The 1st appellant hit him on the neck with an empty bottle which he picked up from around the place.

As a result, he had a cut in the neck. He added that the cut in the neck required two stiches. When he fell on the ground as a result, the 2nd appellant removed N45.00 from his socks and took his raincoat away. Thus, he said the 4 persons ran away from the scene. On the way to the police station he met a team of mobile policemen who followed him back to the scene of the incident. The mobile policemen searched the area for the suspects and found the 4 persons at the Peoples Hotel where the police arrested the 1st appellant while the other suspects ran away. The following day, the investigation of the case was referred to the police at the C.I.D. Panti Street, Yaba who later arrested the 2nd appellant along Muyibi Street, Olodi Apapa.

The complainant himself stated that he was referred by the police for treatment at the General Hospital, Lagos, where the wounds at his eye brow and the back were stitched. He tendered his card and medical report for his treatment as Exhs.A and A1. Under cross-examination, he admitted that there were no light along Akogun Street but added that he was able to identify the suspects because he argued with them for almost one hour. The only other witness was Solomon Olufemi Akinboni, the Manager of Rasco Hotel, who testified as p.w.2. Because of the import of the testimony of this witness in this appeal, I shall later quote his evidence in extenso.

Each appellant testified on his own behalf but called no witnesses. It was the 1st appellant’s case that when he closed from work on that day, he went home. As he was in his house his attention was attracted outside where he observed a group of people gathered near the road at Idowu Street,Ajegunle. He went to see what was happening. At the scene one Victor, an old friend of his who worked in an hotel near their house invited him into the hotel where he served him with beer. While he was drinking the beer, he heard a group of people shouting and he went to see what was happening. There the police arrested Victor and himself and two other boys outside the hotel. They were taken to Ajeromi police station where they were detained. He denied ever knowing p.w.1 or the 2nd appellant before that date. He also denied taking part in the robbery.

The 2nd appellant testified that he was a soldier attached to the Nigerian Army Artillery Unit, Agege. His evidence was to the effect that he was nowhere near the scene of the incident on the day in question. It was on the 6th of June, 1977 that the police arrested him in his house. He denied ever taking part in the offence or knowing the 1st appellant previously or wounding the complainant.

After hearing, the learned trial Judge believed the case for the prosecution and found the appellants guilty as charged. Appellants’ appeal to the Court of Appeal was dismissed by a majority of two to one. In the dissenting judgment of Akpata, J .C.A. (as he then was) he held the view that the identification of the appellants was, in the absence of identification parade, unsatisfactory. It amount to an identification in the dock in so far as they were not arrested at the scene of the crime, he opined. On the other hand, Babalakin and Awogu, JJ.C.A. held a contrary view and dismissed the appeal. Both appellants have appealed further to this court. Through their counsel, Chief Milton Paul Ohwovoriole, they filed each identical ground of appeal. Two additional grounds of appeal were also filed on behalf of each. It is not necessary to set them out in full. Suffice it to say that arising from all these grounds of appeal, learned counsel on behalf of the appellants formulated the following issues for determination in the appeal.

ISSUES FOR DETERMINATION