Desmond Aichenabor V. The State (2013)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment)

This appeal is against the judgment delivered on 22/4/2010 by the High Court of Edo State holden in Benin (hereafter referred to as the lower court) presided over by Hon. Justice A. Edodo-Eruaga (hereafter referred to as the “learned trial Judge”). The Appellant was charged before the lower court on a two count Information with the offences of conspiracy to commit the offence of armed robbery and actual offence of Armed Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria 1990. Having found the prosecution to have proved its case against the Appellant beyond reasonable doubt, the lower court convicted the Appellant on each of the counts preferred against him and sentenced him to death by hanging.

At the trial of the charges/counts preferred against the Appellant, the prosecution fielded four witnesses and tendered the statement made to the Police by the Appellant as Exhibit 3. The Appellant on his own part called three witnesses and also testified in his own behalf. The Appellant also caused to be tendered as Exhibits the statements of two prosecution witnesses which were admitted and marked as Exhibits 1, 1A and 2 respectively.

The lower court found the evidence of identification adduced by the prosecution in the case to be compelling and reliable and consequently convicted the Appellant on the strength of the same for the offence of armed robbery preferred against him. Furthermore, haven found the evidence of adduced by the prosecution that the robbery for which the Appellant was not committed by the Appellant alone; the lower court convicted him of the offence of conspiracy to commit the offence of armed robbery.

Being aggrieved with his conviction and sentence, the Appellant lodged an appeal against the judgment of the lower court by a Notice of Appeal dated 30/4/2010 and filed on the same date. The Notice of Appeal contained only the omnibus ground. On 21/12/2010 the Appellant subsequently filed an Amended Notice of Appeal. The process was deemed as properly filed and served on 26/9/2011. The Amended Notice of Appeal in addition to the omnibus ground of appeal contains two other grounds of appeal.

In compliance with the Rules of the Court,parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 4/10/2011 and filed on the same date and his Reply Brief is dated 16/5/2013 and filed on the same date. The aforementioned Briefs were settled by A. O. Lawani, Esq. Respondents’ Brief of Argument is dated 22/4/2013 and filed on 23/4/2013 pursuant to the order of Court made on 16/4/2013.

The Brief of Argument was settled by C. A. Ebosele (Mrs.) (learned Chief State Counsel, Ministry of Justice, Edo State) (hereafter simply referred to as “learned CSC”). The appeal was entertained on 26/9/2013 and both O. A. Lawani of counsel for the Appellant and learned CSC for the Respondent adopted the Briefs of Argument of their respective clients as hereinbefore identified in aid of their positions in the appeal. Learned CSC in her oral submissions, urged the Court to discountenance the Reply Brief of the Appellant as it is a re-argument of his case.

In his Brief of Argument the Appellant presented two issues for determination by the Court in the appeal. They read thus:-

“1.Whether there was proper identification of the Appellant as one of the persons that robbed the PW1 and PW2.

2. Whether the guilt of the Appellant was established beyond reasonable doubt as required by law, justifying his conviction on the offence (sic) of conspiracy and armed robbery.”

The Respondent equally formulated two Issues for the determination of the appeal in its Brief of Argument. They read thus:-

“(1) Whether the guilt of the Appellant was established beyond reasonable doubt as required by law, justifying his conviction on the offence (sic) of Conspiracy and Armed Robbery.

(2) Whether an identification parade is necessary where the victim or witness recognized the offender or accused person.”

The appeal will be determined on the Issues as formulated by the Appellant as I find them more appropriate in the light of the grounds of appeal.

APPELLANT’S ISSUE 1:

Dwelling on this Issue, the Appellant stated to the effect that identification evidence in criminal law is one which tends to show that the person charged with an offence, is one and the same as the person who was seen committing the offence. The Appellant went further to itemize what the court should consider when evidence of identification is adduced against an accused person and cited in aid, the case of Ndidi v. The State (2007) 13 NWLR (Pt. 1052) 633 at 636.