FOLORUNSHO ALUFOHAI v. THE STATE
(2012)LCN/5307(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of April, 2012
CA/B/420C/2010
RATIO
APPEAL: EFFECT OF GROUNDS OF APPEAL FROM WHICH NO ISSUES ARE FORMULATED FROM
Grounds of appeal from which no issues are formulated are deemed abandoned and are liable to be struck out – see Ojo vs. Kamalu (2005) 18 NWLR (Pt. 95S) 523. PER RAPHAEL CHIKWE AGBO, J.C.A
APPEAL: WHERE SHOULD AN ISSUE FOR DETERMINATION ARISE FROM
It has also become trite that an issue for determination must arise from a ground of appeal. An issue for determination that does not arise from a ground of appeal must be struck out. PER RAPHAEL CHIKWE AGBO, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
FOLORUNSHO ALUFOHAI Appellant(s)
AND
THE STATE Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A: (Delivering the leading Judgment): The appellant and one Sunday Ehimieyin were arraigned before the High Court of Edo State in charge No.B/48C/2000 on a two counts charge of conspiracy and armed robbery. Both were in a considered judgment on 26/9/2005 convicted and sentenced to death.
Dissatisfied with this judgment, the appellant filed a notice of appeal containing two grounds of appeal at page 153 of the record of appeal which grounds read thus:-
”1. That the learned trial Judge erred in law in convicting the appellant of robbery when there was no direct evidence before the court, that the appellant was responsible for the death of the deceased.
2. That the decision of the trial Judge is therefore unwarranted, unreasonable have due regard to the weight of evidence.”
No additional grounds of appeal were later filed. The parties filed and exchanged briefs of argument. The appellant from his notice of appeal formulated two issues for determination to wit –
1 . Whether the persecution proved the guilt of the appellant beyond reasonable doubt.
2. Whether the confessional statements is admissible against the appellant.
The two issues distilled by the respondent are virtually the same as those distilled by the appellant.
The incident leading to the trial and conviction occurred early in the morning of 5th January, 1998 in the residence of Mr. Raphael Aggi at Oluku junction Benin City. He was in his house that morning with his wife and daughter when some persons visited his house with violence. They entered his house by breaking down his back door. There were three of them. The assailants robbed the family of their colour television set, video cassette recorder and a video cassette rewinder. In addition his wife, Helen was kicked in the stomach while his daughter had raw acid poured on her face. These villains were armed with a gun, cutlasses and broken bottles. Unknown to Mr. Aggi, the police already had information that a robbery would take place and lay in ambush awaiting the miscreants. The appellant and one person were arrested and the video cassette recorder and rewinder recovered from them. At about 8 a.m. that morning, Mr. Aggi and his wife, Helen went to the police station to report the incident. As they were making their statements the police brought in the appellant and the other person. They were immediately recognized by Mr. Aggi and his wife Helen who also identified their video cassette recorder and rewinder. The appellant and the other fellow were later arraigned, tried and convicted. Nobody lost his or her life in the robbery although Mr. Raphael Aggi later died of other causes and could not testify at the trial.
It can be seen from the facts stated above that who ever drafted the notice of appeal for the appellant did a great disservice to him. This is because ground 1 of the grounds of appeal has no relevance whatsoever as no death occurred in the robbery and no issue was distilled from that ground by any of the parties. Grounds of appeal from which no issues are formulated are deemed abandoned and are liable to be struck out – see Ojo vs. Kamalu (2005) 18 NWLR (Pt. 95S) 523.Ground 1 of the grounds of appeal from which no issue was formulated is hereby struck out. It has also become trite that an issue for determination must arise from a ground of appeal. An issue for determination that does not arise from a ground of appeal must be struck out. The only ground of appeal left in this appeal is the omnibus ground, while issue 2 of both the appellant and respondent relate to the admissibility of the confessional statement. The 2nd ground of appeal deals with the weight to be assigned to the admitted evidence and not the issue of the admissibility of the confessional statement. Issue 2 of both parties which do not arise from the sole surviving ground of appeal ought to be struck out – see Eneoli vs. Oraekwe (2005) 1 NWLR (Pt. 961) 324. Issue 2 challenging the admission of the confessional statement is hereby struck out.
In his argument in support of his Issue No. 1 appellant had argued through counsel in his brief of argument that the standard of proof in criminal matters was proof beyond reasonable doubt and the onus rested through out on the prosecution which failed to discharge that onus. He referred to Morka vs. The State (1993) 2 NWLR (Pt. 537) 294; Cyracus Ogidi & Ors. vs. The State (2005) 1 SCNJ 67. He harped on the necessity for an identification parade in the circumstance such as this where the appellant was not known to the witnesses before the incident and relied on Sunday Ndidi vs. The State (2007) 5 SCNJ 774 and Alabi vs. The State (1993) 1 NWLR (Pt. 307) 511 and urged the court to take into account –
(1) The circumstances in which the eye witness saw the suspect or defendant.
(2) The length of time the witness saw the suspect or defendant.
(3) The lighting conditions
(4) The opportunity of close observation
(5) The previous contact between the parties.
(6) Description given to the police shortly after the commission of the crime.
(7) The opportunity the victim had at observing the accused.
(8) The features of the accused noted by the victims and communicated to the accused.
He argued that even though P.W. 3 Mrs. Helen Aggi testified that she saw the appellant and that it was the appellant who poured acid on the face of her daughter, P.W.1 for looking at them, the P.W.1 did not say so and in fact had earlier been informed by her father that the robbers had been arrested and kept at the police station. It is clear from the evidence before the trial court that the review of the evidence by the Judge was unassailable. While it may have been necessary on the evidence of P.W.1 to conduct an identification parade, the evidence of P.W.3 if believed by the court would obviate the necessity of an identification parade. Robberies do not take place in the dark. The robbers must see their victim before robbing him or her. P.W.3 did not only identify the appellant, she said he was armed with a matchet and when the robbers had difficulty in accessing the video machine in the husband’s wardrobe as a result of the faulty door lock and were threatening to shoot the husband, she advised the appellant to use his matchet to break the lock and remove the video machine. She also saw the appellant throw acid on the face of P.W.1 for looking at them. She was at the Ekiadolor police station lodging her complaint about the robbery on 5/1/98 when the police brought in the suspects and she recognized them immediately. That was enough for the purpose of identification. The P.W.3’s evidence was unassailable. Furthermore the P.W.4 testified that he arrested the appellant with two of the stolen items which evidence was believed by the trial court. It was now incumbent on the appellant to establish that he was neither the thief nor the receiver. This the appellant failed to do.
Upon the evidence of P.W.3 and 4 alone the appellant could and was properly convicted of the offence charged. There is no merit in this appeal and it is hereby dismissed.
OYEBISI FOLAYEMI OMOLEYE J.C.A.: I read in advance the leading judgment delivered by my learned brother R. C. Agbo, JCA. I agree for the reasons stated in the said judgment that, this appeal lacks merit. I equally dismiss the appeal and abide by the consequential orders made in the said leading judgment.
CHIOMA EGONDU NWOSU-IHEME J.C.A.: My learned brother AGBO J.C.A. gave me the privilege of reading before now the lead Judgment. I agree with the reasoning and conclusion in the Judgment and adopt them as mine.
The appellant was properly convicted and there is no reason to tamper with the Judgment of the trial court. This appeal lacks merit and is hereby dismissed.
Appearances
E. O. Achukwu with him J. N. Okongwu for the AppellantFor Appellant
AND
Mrs. P.E. Aziegbemih, A.D.P.P., Edo State with her Mrs. T. I. Egbe-Abe and Miss Itohan OkungbowaFor Respondent
