Azuka Iyesele V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ogun State High Court holden at Abigi delivered on 20th June, 2013 in charge No.AB/9R/2009, convicting and sentencing the Appellant to death by hanging for conspiracy to commit armed robbery, armed robbery etc. contrary to Sections 6(b) and 1(i) (b) of the respectively of the Robbery and Firearms (Special Provisions) Act CAP. R11, Laws of the Federation of Nigeria, 2004 (LFN, 2004).

According to the Respondent, the Appellant on or about at 13th February, 2008 at 12.00noon, the Appellant along with other persons entered the house of the complainant (PW1) at No.3 Kuforiji Olubi Crescent, Adigbe, Abeokuta, and while armed with guns robbed PW1 of 2 Nokia Mobile phones, cash and jewellery.

Other occupants of the house, including PW5 were robbed of mobile phones and cash. To prove its case against the Appellant the Respondent relied on the oral evidence of 6 prosecution witnesses, and the extra-judicial statements of the Appellant to the police etc. The Appellant adduced oral evidence to defend the 4 count

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charge against him.

After all the evidence, including a trial within-trial, respective learned counsel addressed the Court. In its judgment, the Court found the Appellant guilty on counts 1, 2, 3, of the 4 count charged and proceeded to convict and sentence him accordingly. He was however found not guilty on count 4 and was accordingly discharged and acquitted on it. The Appellant was dissatisfied with the decision to convict and sentence him on counts 1, 2 and 3. He appealed to this Court in a notice of appeal filed on 3/09/13. It contains 7 grounds of appeal. They are as follows:

1. The Learned Trial Judge erred in law, when he held thus:

“Let me say here that the ingredient of the offence of conspiracy has been establish by the prosecution. I believe the evidence of PW1, PW2 and PW5 who all identified the accused person as one of the robbers who came to the house of Pw1 on that day.?

PARTICULARS OF ERROR

a. By the evidence of the pW2, the appellant was arrested at a quarry where the pw2 testified that any attempt by a robber to jump into would be suicidal. PW1 said she identified appellant at a police station in an

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identification parade. The Appellant said there was no identification parade. It is the duty of the Learned Trial Judge to resolve whether or not there was any identification parade where the appellant was identified by the PW1 but the Court failed in that solemn duty. More so, the prosecution corroborated the evidence of the Appellant that there was no identification parade.

b. The identification of the Appellant by the Pw2 in the dock is a mockery of legal art of identification known to law because of the faces that the PW2 allegedly saw in the compound were ?strange faces? unknown to him.

c. The identification of the Appellant in the dock by the PW5 who cannot give any description of their attackers is a loose form of identification unacceptable in law.