Tajudeen Fabiyi V The State (2015)

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 and three others 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, committed on or about 30th day of November, 1996 at Benin City within the trial court’s jurisdiction. The team had conspired and robbed one Donatus Osigwe of 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. 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 “D”, 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 “D”.

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. Dissatisfied, the appellant appealed to the Court of Appeal, Benin Division, hereinafter referred to as the lower court, whereat in dismissing the appeal, the court affirmed the trial court’s decision.

Still aggrieved, the appellant further appealed to this Court on a Notice filed on 7th July, 2008 containing four grounds against the lower court’s judgment delivered on 13th December, 2004.

At the hearing of the appeal, parties adopted and relied on their briefs, including appellant’s reply brief, 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 learned counsel to the respondent, the processes were accordingly struck out.

The four issues distilled by the appellant from his four grounds of appeal 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…’

This simply means that PW1 who went with the deceased to arrest the Appellants, along with Police identified the Appellants as those implicated by Monday Eze (deceased) they cannot recognize the other four persons. They were identified by Monday Eze their gang leader and PW1 with whom the arrest was made, PW3 and PW4 did not know them before so why the need for identification parade, identification parade will be necessary if and only if there is doubt in the mind of the witnesses as to whether it was the accused persons or somebody else who committed the offence. No such doubt has been created in the present case.’