Wale Olasehinde V. State (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A. 

This is an appeal against the judgment of Ondo State High Court sitting at Akure Judicial Division, delivered on 8/5/2014. The Appellant was arraigned before the Court on 2 count charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6(b), 1(1) and (2) of the Robbery and Firearms (Special Provisions) ACT, Cap R11, Laws of the Federation of Nigeria 2004, respectively.

Upon arraignment, the Appellant pleaded not guilty to the 2 count charge. To prove the guilt of the Appellant, the prosecution called two (2) witnesses and tendered four (4) Exhibits. While the Appellant gave evidence for himself in his defence and called no witness.
FACTS
The particulars of the offences are that on or about 28/6/2011 at Ondo Road, Akure the Appellant conspired with another at large to rob Dr. Busari Ismaila lyanda of his Toyota Camry Car, 1996/97 model and other items in the car, with pestle and axe and that the Appellant and another at large robbed Dr. Busari Ismaila Iyanda and his wife at Iyange Quarters, Oke-Ogba, Akure with a pestle and axe. The victim reported

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the incident at Fanibi Police station, Akure and at Special Anti-Robbery Squad, Akure. Pw2 who investigated the case recovered the Toyota Camry car and one of the robbed phones. The Appellant and one other were thereafter arrested in connection with the robbery and were charged to Court. The Appellant pleaded not guilty to the charges and case proceeded to trial. At the end of the trial, the learned trial Judge convicted the Appellant and sentencing him to death by hanging or firing squad as may be prescribed by the Governor.

Dissatisfied with conviction and sentencing, the Appellant filed a Notice of Appeal dated 20/5/14 but filed 22/7/2014, which was later replaced by an Amended Notice of Appeal dated and filed on 28/10/2014. The said Amended Notice of Appeal contained four (4) Grounds of Appeal.

In compliance with the rules of this Court, Adedoyin Rhodes-Vivour, Esq. settled the Appellant’s Brief of Argument dated and filed on 8/12/2015; three issues were distilled by the learned counsel for the Appellant for resolution of this appeal, as follows:
1. Whether from the totality of evidence before the learned trial Judge, the prosecution

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established the guilt of the Appellant beyond reasonable doubt.
2. Whether the identification parade carried out by the prosecution was valid and legal under the circumstances in which it was conducted.
3. Whether in view of the Appellant’s right to fair hearing, the learned trial Judge was right in proceeding to sentence the Appellant to death by hanging after conviction without affording him right of allocutus.

Respondent’s Brief of Argument was settled by A. O. Adeyemi-Tuki Esq. DPP, Ondo State and same was undated but filed on 11/4/2016, wherein the learned counsel adopted intoto the three issues as raised by the Appellant’s counsel for the resolution of this appeal.

I shall therefore resolve this appeal on the said three issues raised by the Appellant.

ARGUMENT OF ISSUE 1
Whether from the totality of evidence before the learned trial Judge, the prosecution established the guilt of the Appellant beyond reasonable doubt.
In arguing this issue, learned counsel for the Appellant referred to Section 36(5) of the Constitution, to submit that an accused person is presumed innocent until his guilt is proved. He further

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relied on Section 135(1) (2) and (3) of the Evidence Act, 2011 to argue that such proof must be beyond reasonable doubt, to secure conviction. He referred toOchiba vs. State (2011) 17 NWLR (pt. 1277) 663 @ 685-694, and Chukwu vs. The State (2007) 13 NWLR (pt. 1052) 430 @ 456 – 457. Furthering, counsel submitted that it is the duty of the prosecution to prove the charge brought against the accused person beyond reasonable doubt and that once a reasonable doubt is established, the accused must be discharged. He referred to the case of Albert Ikem vs. The State (1985) 4 SC 30 to submit that it is not the duty of the accused person to prove his innocence or lead evidence that will create reasonable doubt, but the duty of prosecution to prove his guilt beyond reasonable doubt. He relied on Esangbedo vs. State (1984) 4 NWLR (pt.113) @57; Egbe vs. King 13 WACA 105 and Ozaki vs. State (1990) 1 NWLR (pt. 124) 92 to submit that the onus on the prosecution to establish its case beyond reasonable doubt never shifts to the accused. Furthering, learned counsel called in aid the case of State vs. Azeez (2008) 4 SC 188 and The State vs. Nnolim (1994) 5 NWLR (pt. 345) 394 @