Ebenezer V. State (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Ekiti Division delivered on the 14th day of December, 2016 affirming the appellant’s conviction and death sentence for armed robbery by the High Court of Ekiti State, Ado Ekiti Division, delivered on the 13th day of June 2014.

The appellant and three others were charged before the High Court on a two-count charge of armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria, 2004. They all pleaded not guilty to the charges.

At the trial, the prosecution called three witnesses and tendered the extra-judicial statements of the accused persons as well as photographs taken during an identification parade conducted by the Police at the State Criminal Investigation Department, Ekiti State Command. The appellant was the 3rd accused. His extra-judicial statements were marked Exhibits D and X respectively, while the photographs taken at the identification parade were marked Exhibits F1 – F8.

​In their defence, the accused persons each testified in his own defence and called one other witness.

The main facts of the case were narrated by Michael Ayewole Agbelusi (PW1), a Judge of the High Court sitting at Ijero-Ekiti. His evidence was that on 15/9/2012 around 3 am, he was woken from sleep by the 1st accused who held a gun to his ear. He testified that the said accused switched on his reading light and he was thus able to see him as well as the 2nd accused quite clearly as they were not masked. In response to a demand from the 1st accused as to the whereabouts of his valuables, he led him, at gunpoint to where he kept N35,000, his handsets and other items.

He was led out of the room by the 1st and 2nd accused and upon exiting the room, they met the appellant, also armed with a gun. He was locked up inside the toilet along with other occupants of the house. He testified that his two daughters were taken elsewhere. Subsequently, after about 45 minutes, one of his children jumped out of the window of the toilet and let them out, having realised that the robbers had left by the sound of their motorcycle.
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He immediately made a complaint at New Iyin Police Station. They were taken to the hospital for treatment and later returned to the Police Station where they were informed that some suspects had been arrested.

He testified that many suspects were lined up and he was able to identify the 1st accused and the appellant as being among the robbers. He said he was able to identify them because they were wearing the same clothes they wore during the robbery. There was no evidence that he had given a description of the robbers to the police prior to this exercise.

Later, on 19/9/2012, another identification parade was carried out at the Police Headquarters. He stated that he and his daughter, Temitope Agbelusi identified the 1st, 2nd and 3rd accused persons. The photographs taken during the identification parade are the ones marked Exhibits F1 – F8. Under cross-examination by counsel to the 1st and 2nd accused, he stated that he had already seen the accused persons at the New Iyin Police Station before the conduct of the identification parade at the Police Headquarters. He was rigorously cross-examined on his testimony. The prosecution called the two Investigating Police Officers who testified as to the roles they played in the investigation of the case.

In their defence, the 1st, 2nd and 3rd accused denied knowledge of the offence and claimed that they were all working on a building site close to where the robbery took place when they were arrested. None of them knew the 4th accused (DW4) who happened to be PW1’s driver.

DW5, one Tunde Onikoyi, alias Logo, testified that the 1st 2nd and 3rd accused were his labourers and that they worked on his site where he was constructing three duplexes. He said they usually concluded the day’s work by 5 or 6 pm and that they used to sleep in one of the three duplexes that had already been completed. He did not know the 4th accused.

At the conclusion of the trial and after careful consideration of the written addresses by counsel, the 4th accused was acquitted and discharged on both counts of the charge. The appellant and the 1st and 2nd accused were found guilty on count 1 but acquitted and discharged on count 2. They were each convicted and sentenced to death by hanging.
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The appellant’s appeal to the lower Court against his conviction and sentence was dismissed. He has therefore further appealed to this Court via his notice of appeal filed on 9/1/2017 containing 8 grounds of appeal.

At the hearing of the appeal on 6/10/2022, Omoniyi Idowu Esq., adopted and relied on the Appellant’s brief filed on 19/09/2017 and his reply brief filed on 16/11/2017 but deemed filed on 6/10/22 in urging the Court to allow the appeal. He also relied on an additional authority of this Court filed on 2/9/2022, which, he submitted, is on all fours with the instant appeal. Julius Ajibare Esq., adopted and relied on the respondent’s brief filed on 25/11/2019 but deemed filed on 6/10/222 in urging the Court to dismiss the appeal.

The appellant formulated 2 issues for determination as follows: