Isikilu Olanipekun V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Justice, Abeokuta Ogun State of Nigeria, the Appellant as 4th accused was charged along with others on a two count charge as follows –

COUNT 1: That You, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the 18th day of August 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division conspired together to commit a felony to wit: Armed Robbery contrary to section 5(b) and punishable under section 1(2)(a), 5(b)of the Robbery and Firearms (Special Provisions) Act (Cap 398), Laws of the Federation of Nigeria, 1990 as amended by Tribunals (Certain Consequential Amendments etc.) Act 1999.

COUNT II: That you, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the 18th August 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division while armed with firearms to wit: guns and other weapons did rob one Evangelist Oluseye Ogunremi of a Nokia Mobile Handset and Sagem Mobile Handset valued at N65,000.00 and a cash sum of N800.00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (Cap 398) Laws of Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc.) Act 1999.

They all pleaded not guilty to the two count charge and were tried, convicted, and each sentenced to death. It is against this conviction and sentence that the 4th accused person Isikilu Olanipekun is appealing against.

The case for the prosecution was that on the 18th day of August 2002, the Appellant, the three accused persons whose names are contained in the charge and others still at large while armed with firearms to wit: guns and other offensive weapons conspired together and robbed one Evangelist Seye Ogunremi (PW2) of a Nokia Mobile handset and a Sagem Mobile handset all valued at N65,000.00 and a cash sum of N800.00. Nine witnesses gave evidence for the prosecution while the Appellant Isikilu Olanipekun gave evidence on his own behalf. It was, alleged by PW2 the complainant that in the course of the robbery operation, the Appellant used an iron on his (PW2’s) head and asked him to lie down. The robbers were holding guns and cutlasses and after a search of his house, they left with N800.00 and two handsets – a Nokia and a Sagem. It is the prosecution’s case that one Bola Alausa an electronic repairer (PW1) was approached by the 1st accused person to look for a buyer or himself buys the handsets. 1st accused neither knew the numbers of the handsets nor had a receipt of purchase of them and a request that they be sold for a mere N3,000.00 aroused PW1’s suspicions and in the course of operating the handsets PW2 answered revealing all the gory details of the armed robbery attack on him by the accused persons which eventually led to the arrest of the 1st accused who revealed the identities of the other accused persons including the Appellant as his partners in crime on the day of the incident which led to the arrest, prosecution, conviction and sentence of the 1st, 2nd, 3rd & 4th accused persons.

This appeal is with respect to the 4th accused person only and will simply be referred to as the Appellant. The Appellant at page 43 of the Record of Appeal filed a Notice of Appeal dated the 30th June 2005. By a motion on Notice dated the 22nd June 2006 and filed on the 30th June 2006, Appellant sought for an order of court to amend that Notice of Appeal dated 30th, June 2005 and to deem the Amended Notice of Appeal as properly filed and served. The motion was heard and granted on the 18th April 2007 and an Amended Notice of Appeal deemed as properly filed and served as from that date i.e. 18th April 2007. A further Amended Notice of Appeal dated the 15th January 2008 and filed on the 16th January 2008 was by order of court deemed properly filed on the 14th April 2008. This Further Amended Notice of Appeal consists of five Grounds of Appeal and is reproduced hereunder viz –

FURTHER AMENDED NOTICE OF APPEAL

TO THE REGISTRAR OF THE COURT OF APPEAL, IBADAN

I, ISIKILU OLANIPEKUN, having been convicted of the offences of Conspiracy and Armed robbery and now being prisoner at Abeokuta prison, Abeokuta, Ogun State, (or whose address for service is c/o my Legal Practitioners, Messrs Segun & Segun of 2, Thanni Olodo Street, Jibowu, Yaba, Lagos State) and being desirous of appealing against my conviction do hereby given Notice of appeal against my conviction (particulars of which hereinafter appear) to the court on the following grounds:

1. DECISION COMPLAINED OF:

The whole of the Judgment of 21st June 2005 in suit No. AB/14R/2003

2. GROUNDS OF APPEAL:

GROUND 1 –

The Learned Trial Judge erred in Law in holding that the identification of the Accused person (Appellant herein) was not in issue. See page 40 of the Records lines 34-36.

PARTICULARS OF ERROR: