Kehinde Ajumobi V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant and Raheem Ayinde were arraigned before the Kwara State High Court, llorin Division in charge No. KWS/36C/2010 for Criminal Conspiracy and Robbery contrary to Sections 97 of the Penal Code and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria 2004. The charge contained six counts; count 1 was for conspiracy while the remaining five counts were for armed robbery. The learned trial Judge found that the prosecution proved the ingredients of the offence of armed robbery against the accused and convicted them accordingly. He thereafter sentenced each of them to 14 years imprisonment without an option of fine and did not specify the count on which the sentence was based.

The appellants appealed separately against the judgment of the trial Court to the Court of Appeal, Ilorin Division complaining against the non specification of the counts on which the trial Court based its sentence. The Court below dismissed the appeal as being predicated on technicalities in its judgment delivered on 10 July, 2014.

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The appellant was further dissatisfied with the judgment of the Court of Appeal and appealed against it in the Notice of Appeal dated and filed on 4 August, 2014.

The appellant’s brief was filed along with an amended Notice of Appeal on 2 March, 2017. Both the amended Notice and the appellant’s brief were deemed filed on 17 May, 2017. Two issues were formulated from the Amended Notice of Appeal to wit:-

1. Whether the learned Justices of the Court of Appeal came to a justifiable conclusion in law and equity when their Lordships held that the appellant was sufficiently identified as one of the armed robbers that committed the offence in issue and that the discrepancies between the appellant’s extra judicial statement and his oral testimony in Court relate in substance and not form such that the appellant’s defence of mistaken identity may be thrown away with the wave of hand.
2. Whether the learned Justices of the Court of Appeal were correct in law and equity when their Lordships failed/refused to consider issue (3) distilled by the appellant herein who was also the appellant at the Court below and whether same failure did not lead to a miscarriage of justice

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The respondent adopted the issues raised by the appellant. Learned counsel for the appellant, Awosika Esq. submitted on issue 1 that even though there is a concurrent finding of facts by the two lower Courts as to the identity of the appellant as one of those who participated in the robbery offence, nevertheless the defence of mistaken identity incapsulated in Exhibits P4 and P7 is probable in the entire circumstances of the case. While conceding that it is not the law that the prosecution must tender every item stolen before it can secure conviction, he submitted that where the tendering of items stolen goes to the credibility or otherwise of the robbery story, the law requires such items to be tendered so that their whereabouts can be accounted for. He argued that since the appellant denied participating in any robbery and that he was seeing off his friend at the time of the arrest, the production of the stolen items traceable to him would have made the prosecution’s case foolproof. He maintained that for the credibility of the evidence that the appellant was arrested around the scene of crime to be believed, the items which he stole and which he had taken into his possession

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must be found with him or the people who saw him being arrested should give an explanation on how he managed to dispose of the items at the point of arrest. Learned counsel drew a distinction between being caught at the scene of crime and being identified as a criminal. When an accused is being caught at the scene of crime, there should be credible evidence such as being found in possession of the stolen item but where the accused is identified as the criminal, the credible evidence to be adduced is most often by identification parade. He cited the case of Bozin v. State (1985) 2 NWLR (Pt. 8) 465 and Adisa v. State (1991) 1 NWLR (Pt. 168) 490. He said no identification parade was carried out in this case. Since the appellant was not apprehended with the stolen items particularly the wallet which was alleged to contain N34,000.00, his story that he was arrested while escorting the 2nd accused should be believed.

On issue No. 2, learned counsel argued that the Justices of the Court of Appeal failed to properly evaluate and consider whether the trial Court was right or not in considering the

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alleged oral confession which the appellant made to PW8 and that the Honourable Court did not give the issue the consideration it deserves. It was the contention of learned counsel that all Courts ought to consider and resolve all arguments on all the material issues canvassed by parties before it. He relied on Olowolagba v. Bakare (1998) 3 NWLR (Pt. 543) 528 where lguh JSC posited thus at page 534:-

“It is indisputable, pursuant to the right of parties to any litigation to fair hearing, that a trial Court ought to hear and consider all legal and admissible evidence adduced before it in respect of all relevant issues joined by the parties. In the same vein an appellate Court ought to hear and consider the arguments on all material issues canvassed by parties before it.