Mathew Thomas 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 from 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 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 Fire Arms (special provisions) Act Cap. R11 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 witnesses and tendered various Exhibits. PW1 is one of the victims of the alleged armed robbery incident that took place at his residence on 1/2/2008. 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.

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 with the 1st accused person in his residence at the material time.

The defense contends further that the wife of the PW1 who saw the appellant during the robbery was not called as a witness and that PW2 who knew the appellant very well did not mention his name to the police at the earliest opportunity. It is also the case of the appellant that there are material contradictions not only in the evidence of the prosecution witnesses but also between the particulars of the charge and the evidence led.

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 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 2nd 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.

(ii) Whether from the totality of the evidence on the record, the lower court was right in convicting the appellant for the offences of conspiracy to rob and armed robbery.

On issue 1, Learned Counsel for the Appellant submitted that the learned trial Judge was wrong 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. That, it is trite law that one of the major factors that a court must take into consideration in a criminal trial where the evidence against the accused person is based primarily on recognition by one of the victims who claimed to have known the accused person is whether he mentioned the name of the accused person to the police at the earliest opportunity. That the court is also enjoined to take into consideration the following factors:

(a) Circumstances in which the eye witness saw the suspect – Whether it was difficult condition (b) The length of time the witness saw the suspect or defendant, whether in a glance or longer observation; (c) The opportunity of close observation; (d) Previous contact between the two parties; (e) The lightning conditions.

He referred to the cases of Wakala V State (1991) 8 NWLR (Pt. 211) 552, Bozin V State (1985) 2 NWLR (Pt. 8) 465 and Ochiba V State (2012) All FWLR (Pt. 608) 849 at 871.