Olufemi Ajayi V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Benin division affirming the conviction and sentence of the appellant by the Edo State High Court for conspiracy and Armed Robbery punishable under sections 5(b) and 1(2) (a) of the Robbery and Firearms (special provisions) Act Cap 398 of the laws of the Federation 1990.

The appellant is said to have committed the offences along with four others on or about the 30th day of November 1996 at Benin City within the trial court’s jurisdiction. They conspired and robbed one Donatus Osigwe the sum of N164,000.00 while armed with knives and other offensive weapons.

The respondent called five witnesses to make out its case at the trial court. PW1, had reported to the police that his son, the 1st accused, had stolen the sum of N190,000.00 from his shop in Benin City on 16/11/96 and, in company of others, robbed the next shop to his on 30-11-96. 1st accused on his arrest volunteered a statement which led to the arrest of the others including the appellant herein. He also identified the appellant to PW1 and PW5 as a member of his gang that robbed PW2’s shop of the sum of N164,000.00 naira. PW3, Ifeanyi Chukwu Eze, was in his father’s shop, No 12A Mission Road Benin City, when the robbery gang struck on 30-11-96 around 10pm. 1st accused, PW3’s brother, PW3 told the trial court, emerged and accosted another brother of theirs, Chidebere Eze, and one Clifford Umorji from the next store, demanding money from them. Along with four others of his gang, the 1st accused proceeded with Clifford to PW2’s store where, according to PW4, they carted away the sum of N130,000.00.

The statements of the five man robbery gang, on being arrested, were recorded by PW5 through whom the statements were tendered and admitted in evidence without objection.

Exhibit “C”, which turned out to be confessional, is appellant’s own statement. 1st accused died in prison before the commencement of the trial and conviction of his gang including the appellant at the trial court.

Appellant testified in his own defence. He denied being a member of the robbery gang and or having participated in the particular armed robbery. In his evidence at trial, he told the court that he was tortured and forced to sign Exhibit “C”.

At the end of trial and addresses of counsel, the trial court in a considered judgment, having found that the respondent had proved its case beyond reasonable doubt, convicted and sentenced the four accused persons accordingly. The dismissal of their respective appeals by the lower court explains appellant’s appeal to this Court on four grounds. The lower court’s judgment being appealed against was delivered on 13th December 2004.

At the hearing of the appeal, parties adopted and relied on their briefs which had earlier been filed and exchanged as their respective arguments for and against the appeal. Having abandoned the Notice of preliminary objection filed against the appeal as well as arguments in respect of same by Adewale Atake, learned counsel to the respondent, the processes were accordingly struck out.

The four issues distilled from appellant’s four grounds of appeal at paragraph 3 of his brief for the determination of the appeal read:-

“(i) Whether the issue of the identity of the Appellant and the Co-accused persons raised on the Appeal before the Court of Appeal did not arise from the proceedings and Judgment of the Trial Court (Court of first instance) and as such could not be raised and argued on Appeal without leave first had and obtained

(ii) Whether the Learned Justices of the Court of Appeal did not err in law and occasion serious miscarriage of justice when they failed to discharge and acquit the Appellant of the offence of Conspiracy to Commit Armed Robbery and Armed Robbery by reasoning thus as follows:

‘On the issue of identification parade not having been conducted by the police when the Appellant was not identified by the prosecution witness, it is said somewhere in his judgment that the identity of the Appellants was never made an issue before the trial Court. This is what the trial Judge said in judgment.

‘…The 1st Accused now deceased did not testify but before the trial, it was he who identified the accused person with whom he said he sent (sic) for the robbery. This led to the arrest of the accused persons who were not identified by any of the prosecution witnesses except PW1 who claimed he went with Police and 1st Accused to apprehend them…’