Benjamin Friday V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of his lordship I.A. Adegbenro J. of the High Court of Ondo State sitting at Ondo, delivered on the 16th day of August, 2012.

The appellant and two others were arraigned before the Ondo State High Court sitting at Ondo State on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 vol. 14 of the Laws of the Federal Republic of Nigeria 2004.

The appellant and the other accused persons pleaded not guilty to the two count charge and the case proceeded to hearing. The prosecution called four (4) witnesses and tendered various Exhibits. PW1 is one of the victims of the alleged armed robbery incident that took place at his residence on 1/2/2005.

He was at the material time a serving judge at the Ondo State High Court of Justice. PW2 is the son of PW1 and also a victim of the armed robbery incident. PW3 and PW4 are police officers who were involved in the investigation of the case at various stages. Exhibits tendered by the prosecution include one stick – Exhibit A, one toy gun – Exhibit B one army trouser – Exhibit C.

During the attack, PW1 was able to identify the Appellant (1st accused) who he had always seen around Funbi Fagun Estate. His wife and son saw and recognized the 1st and 3rd Appellants inside their house while they saw 2nd accused outside the house but within the compound.

At the close of the prosecution’s case, the appellant testified in his defence and denied his involvement in the armed robbery. He maintained that he was never at the scene of the armed robbery incident but that he was in his residence at the material time. The Appellant gave evidence that he was never identified by the house girl who was also sexually abused as claimed by PW1.

He (appellant) claimed that the toy gun exhibit ‘B’ belongs to his cousin Enete and not the son of PW1. He also contends that despite the claim of PW1 that he had known him prior to the armed robbery incident, PW1 failed to mention his name or give a description of the appellant to the police immediately after the incident.

At the close of evidence and addresses from both sides the learned trial judge delivered judgment and found the appellant and the two other accused persons guilty of the conspiracy and armed robbery and sentenced each of the accused persons to death accordingly.

Dissatisfied with the conviction and sentence the appellant who was the 1st accused at the trial in the court below filed a Notice of Appeal containing six (6) grounds of appeal before this court on 8 – 10 – 2012.

Appellant’s brief of argument dated 11/1/2013 was filed on 14/1/2013. Respondent’s brief of argument filed on 30/4/2013 was deemed filed on 7/5/2013.

Learned counsel for the Appellant nominated two (2) issues for determination which were adopted by the Respondent’s counsel.

They are:

(i) Whether the learned trial judge was right to have relied on the evidence of identification/recognition of the appellant by PW1 and PW2 to hold that the prosecution proved the charges against the appellant beyond reasonable doubt.