Morufu Bolanle V. The State (2004)

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OLUFUNLOLA OYELOLA  ADEKEYE, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Oyo State, Ibadan Judicial Division, delivered on the 23rd of January, 2002.

The one count information preferred against the appellant and another dated the 29th of September, 1997 reads:-
“Morufu Bolanle
Gbolagade Alawode
On or about the 22nd day of October, 1996 at Olorunsogo, Oke-Itunu, Ibadan Oyo State of Nigeria, while armed with offensive weapons to wit: guns, bottles, knockout, robbed Mr. Emmanuel Fatundimu of N5,300, Mr. Bashir Ishola N12,000, Mr. Biodun Alaga of N4,700, Mr. Ikuesan Olajide of N2,500, Mr. Benjamin Akindoyin of N1,000 and other property such as clothes, jewelery, video, wrist watch etc. contrary to and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Volume 22, Laws of the Federation of Nigeria, 1990.”

The brief facts of the case are that by the time the prosecution commenced trial in the case, of all those mentioned in the information alleged to have been robbed, only Mr. Emmanuel Fatundimu – who gave evidence as PW1 testified at the trial. It was his evidence that around 2.30 p.m. on the night of the 21st of October, 1996, some robbers visited his residence at No. 36 Olorunsogo Street, Oke-Itunu area of Ibadan. They forced the gate open and the door of his room, and those of his wife and other tenants in the house. They assaulted everybody with iron rod or broken bottle. An attempt to rape the 2nd PW, Ruth Fatundimu did not materialize because it was her menstrual period.

However, the 4th prosecution witness, Bolatito Ayilara was raped while her mother, Bosede Ayilara died of the wounds sustained during the robbery incident before the prosecution of the case. The robbers took away some money and other valuables belonging to these witnesses. The appellant was arrested at a relaxation joint named “Black Sport” at Ijokodo area of Ibadan, following a tip-off. As the victims of the incident claimed that they could identify the robbers due to the electricity that was on during the robbery operation – and the fact that the robbers spent some time with them, an identification parade was carried out nine days after the robbery incident.

The 1st-4th prosecution witnesses identified the appellant. The 5th prosecution witness was the Investigating Police Office. Photographs of the identification parade, though taken were not tendered. The defence of the appellant at the trial court was clearly based on mistaken identity.

At the close of the case of the prosecution and defence, counsel addressed the court. In his considered judgment, the court held in the last two paragraphs of the judgment as follows:-
“Looking at this case as it relates to the 2nd accused, I have no doubt in my mind that he has anything to do with this case. While the eye-witnesses gave detailed activities of the 1st accused as regards the robbery operation, no evidence was led on any role of the 2nd accused respecting the robbery. Having resolved the doubt I have in this case in favour of the 2nd accused, I hold that the prosecution have not proved any case against the 2nd accused. Accordingly, the 2nd accused is discharged and acquitted in this case.

The prosecutions have established their case against the 1st accused. Consequently, he is found guilty and convicted of the offence of armed robbery committed against Emmanuel Fatundimu on the 22nd of October, 1996 at Olorunsogo (otherwise called Kalejaiye) Street Oke-ltunu Ibadan contrary to and punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended. He is accordingly sentenced to death.”

The appellant was dissatisfied with the foregoing decision of the trial court, he appealed to this court.

He filed notice of appeal on 23/1/2002 – and this notice harboured five grounds. By order of this court made on 22/9/03, he filed an additional ground of appeal. Parties settled records and briefs were exchanged in accordance with the current rules of this court. At the time this appeal was argued, the appellant relied on the brief filed on 3/12/02. He distilled four issues for determination which issues emanated from his six grounds of appeal.

These issues read as follows:
“(1) Whether from the records, the robber could not have been another person but the appellant?
Or in the alternative,

Whether it is safe to hold that the identity of the appellant as robber was established beyond reasonable doubt?

(2) Whether in the circumstances, the failure of the prosecution to call the photographer who took snap shots of identification is fatal to this case.

In the alternative, whether the court was obliged to consider the appellant’s defence of mistaken identity. If the answer is in the affirmative, whether the court considered it at all?