Adegbeyiro Seun V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant and two others were arrested on 15 September, 2012 in an uncompleted building close to the house of Hon Justice Agbelusi Micheal Ayowole of the High Court of Justice, Ekiti State who was the victim of armed robbery which took place around 3 am on the same date. After the robbery, he reported to the Police who made arrest in the uncompleted building. In the morning of the incident the Police called him to the Police Station and on reaching there he pointed at the appellant and two others seated on the bench in the Police Station, New lyin Road, Ado Ekiti as those who robbed him. The arrested persons were later transferred to the Special Anti-Robbery Squad (SARS) of the Criminal Investigation Department (SCID) for further investigation. During the course of investigation an identification parade was conducted and the victim of the robbery who testified as PW1 identified the appellant and the other two accused whom he had earlier identified at the Police Station, New lyin Road Ado Ekiti. He also made a Statement concerning the robbery incident.

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At the conclusion of Investigation by the Police, a two count charge of armed robbery was proffered against the appellant and three others, one of whom was the driver of PW1 who did not report for work on the day of the robbery. The three accused who were allegedly involved in the robbery were found guilty of the offence, convicted and sentenced to death by hanging. They lost the appeal to the Court of Appeal and decided to further appeal to the Supreme Court.

The Notice of Appeal containing 5 grounds of appeal was filed on 25/1/2016 from which learned counsel for the appellant distilled two issues for determination as follows:-

1. Whether the learned Justices of the Court of Appeal were correct when they held that the identity of the appellant as one of the robbers that robbed PW1 was established by the prosecution (distilled from grounds 1 and 2 of the Notice of Appeal)
2. Whether the Court of Appeal was correct when it held that the prosecution indeed proved its case of armed robbery against the appellant beyond reasonable doubt (distilled from grounds 3 and 4 of the Notice of Appeal).

The respondent also formulated two issues for determination from its

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brief which was deemed filed on 11/4/2018. The issues are: –

1. Whether the identity of the appellant as a member of the armed robbery gang was established by the prosecution in the instant appeal.
2. Whether on the totality of the evidence before the Court, the prosecution has proved the case of armed robbery against the appellant beyond reasonable doubt.

The formulation of issues by the respondent encapsulates the complaints made in the grounds of appeal. Although ground 5 seems to have been abandoned when the appellant was formulating the issues for determination, the complaint in that ground is also to be found in ground 4 from which issue 2 has been distilled.

The gravamen of this appeal centres on the appellant’s identification as one of those who participated in the robbery that took place in PW1’s residence on 15 September, 2012. Learned counsel of the appellant is not disputing the robbery which occurred in PW1’s house in the wee hours of 15 September, 2012 whereby the PW1 was dispossessed of N35,000.00 case handsets and other items at gun point. What learned counsel is quarrelling about is the method used in identifying the

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appellant as one of the robbers. Learned counsel argued that the way and manner the appellant was identified after arrest by PW1 was faulty in law. Learned counsel pointed out that PW1 had the opportunity to see the appellant prior to the time he identified him to the Police Investigators at SARS during the identification parade. He contended that such identification parade is unknown to law as the usual and accepted practice is to place the suspect among other suspects so that the identifying witness will pick out the alleged suspect without assistance. Relying on Bozin v. State (1985) 2 NWLR (Pt. 8) 465 learned counsel submitted that since there was a violation of the laid down rules and procedure relating to identification parade and also lack of evidence to support the correctness of the identification, the appropriate thing was for the two lower Courts to have acquitted the appellant of the charge and discharge him from the trial. He also cited the case of Godspower Asakitikpi v. State (1993) 5 NWLR (Pt. 296) 641 at 655 where Uwais JSC (as he then was) stated that where the identification evidence is poor, the trial Court should return a verdict of not

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guilty unless there is other evidence which goes to support the correctness of the identification.