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OJO OJOMO v. THE STATE (2018)

OJO OJOMO v. THE STATE

(2018)LCN/12303(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of December, 2018

CA/EK/90C/2016

 

RATIO

CONSOLIDATION OF AN APPEAL

There is a sister case with Appeal No. CA/EK/89C/2016 which was consolidated with this case by an order of this Court on the 20th day of April, 2016. The two case as at that time were bearing Appeal Nos. CA/EK/20CM/2016 and CA/EK/19CM/2016. Due to the mix-up in the Registry, the two cases, already consolidated were not listed together the same day for hearing. In consequence, judgment has already been delivered in Appeal No.CA/EK/89C/2016 whereby the appeal was dismissed on the 5th day of July, 2018. PER BELGORE, J.C.A.

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

OJO OJOMO Appellant(s)

AND

THE STATE Respondent(s)

 

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment):

The Appellant as the 2nd accused person before the lower Court was jointly charged along with one Mohammed Umor with the offence of Armed Robbery Contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provision Act), Cap R11, LFN, 2004.

After hearing the case of the prosecution and the Accused person the learned trial Judge delivered his judgment wherein he found the prosecution to have established the case of Armed Robbery against the accused persons beyond reasonable doubt. He convicted the accused persons and sentenced them to death by hanging.

The Appellant being dissatisfied with the said decision of the lower Court filed an appeal against his conviction vide an Amended Notice of Appeal on the 31st day of March, 2017 upon the following grounds:

GROUND 1

The learned trial Judge erred in law when he held that the prosecution had proved its case beyond reasonable doubt to ground and warrant the conviction of the Defendant/Appellant.

PARTICULARS OF ERROR

(i) The trial Judge based his judgment more on the weakness of the defence particularly the failure to call the said Alhaji Umoru, a tomato seller who allegedly called the Defendant to help him transport his tomatoes to Akure from his broken down vehicle, to testify on his behalf, not minding the inconsistencies and material contradiction in the prosecution evidence.

(ii) The position of the law is that the onus is on the prosecution to adduce evidence against the Defendant beyond every reasonable doubts before the Court can convict the accused person/Defendant.

(iii) The totality of the evidence of the prosecution did not prove the offence of Armed Robbery as charged beyond reasonable doubts, yet the Court went ahead and convicted the Defendant.

GROUND 2

The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the weight of evidence.

PARTICULARS OF ERROR

(i) All the prosecution witnesses testified that the Appellant has no weapon either at the time of the robbery or when he was arrested.

(ii) The prosecution witness (PW4) states ?To my knowledge the accused person did not steal anything? (See page 39 of the record)

(iii) The totality of the evidence of the prosecution did not prove the offence of Armed Robbery beyond reasonable doubt, yet the trial Court went ahead and convicted the Appellant.

GROUND 3

The learned trial Judge erred in law when he said that there is convincing and credible evidence that the accused was in the company of others who were armed.

PARTICULARS OF ERROR

(i) The Appellant was not charged with conspiracy to rob instead the Appellant was charged with a specific offence of Armed Robbery using Cutlasses.

(ii) No evidence was admitted at trial that the Appellant know the people who attacked PW1 and PW2.

(iii) The Appellant was not arrested at the scene of crime.

GROUND 4

The learned trial Court erred in law when it convicted and sentenced the Appellant in the absence of properly conducted identification parade and proper evidence of identification.

PARTICULARS OF ERROR

(i) The Appellant was not arrested at the scene of crime.

(ii) The offence took place at night.

(iii) The prosecution witnesses have never met the Appellant before the incident.

(iv) The Police did not conduct identification parade.

Briefs of Argument from both sides have been filed and exchanged.

In the Appellant’s Brief of Argument learned counsel for the Appellant submitted the following two issues for the determination of this honorable Court:

(1) Whether or not there was sufficient evidence before the trial Court to support the Appellant’s conviction for Armed Robbery Contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004?

(2) Whether the honourable Court was right to have convicted the Appellant without any evidence of identification since he was not arrested at the scene of crime?

On the 1st issue, learned counsel for the Appellant contended that the prosecution did not prove the ingredients of armed robbery or that the Appellant at or immediately after the time of the robbery inflicted wounds or used any personal violence on any person. He submitted further that the statements of PW1 and PW2 relied upon by the learned trial Judge in convicting the Appellant for the alleged offence are to the effect that they were attacked by other members of the robbery gang who came out of the bush.

He concluded on this point that the prosecution failed in its duty to prove that the Appellant was personally armed during the robbery and the learned trial Judge was wrong to have convicted the Appellant notwithstanding. He referred this Court to: AROWOJOLU V. STATE (2016) LPELR- 40156 (A); KAYODE V. THE STATE (2012) 11 NWLR (PT.1312) 523 @ 540-541. On the 2nd issue, learned counsel for the Appellant submitted in argument that identification parade is essential in convicting the Appellant since the offence happened at night and prosecution’s witnesses had no time under such circumstances to have had the full opportunity to observe the features of the Appellant. He referred to: ADEBIYI V. THE STATE (2016) 10 SCM; IKEMSON V. STATE (1989) 1 NWLR (PT.100) 642; CHUKWU V. STATE (1996) 7 NWLR (PT.463) 686, EYISI V. STATE (2000) 15 NWLR (PT.691) 555.

Learned counsel also submitted that the Appellant having raised the defence of Alibi at the earliest possible time and also in his statements, the burden was on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. He referred this honourable Court to: KABIR ALMU V. THE STATE (2009) 4-5 SC (PT.11) 33; IDOWU SALAMI V. THE STATE (1988) 7 SC (PT.111) 89.

This Court was finally urged to disallow the conviction and sentencing by the lower Court for failure of the prosecution to prove of the ingredients of armed robbery against the Appellant.

The Respondent, in his Brief of Argument also submitted two (2) issues for determination as follows:

(1) Whether failure to conduct identification parade by the Respondent is fatal to its case in view of the available evidence before the trial Court.

[Ground 4]

(2) Whether the lower Court was not right in deciding that upon totality of evidence adduced by the Respondent, the case of armed robbery of 17/2/2012 was proved beyond reasonable doubt against the Appellant.

[Ground 1, 2, & 3]

On the 1st issue, learned counsel for the Respondent submitted that identification parade by law is limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the alleged offences and not in cases like the instant one where PW1 and PW2 gave cogent and unchallenged evidence which effectively fixed the Appellant to the scene of the crime on the 17/2/2017. He referred to: IKEMSON V. STATE (1989) 3 NWLR (PT.110) 455 @ 465; OGOALA V. STATE (1991) 2 NWLR (PT.175) 509; AWOSIKA V. STATE (2010) 18 WRN 149 @ 178; UKPABI V. STATE (2004) 11 NWLR (PR.884) 439 @ 442; USUNG V. STATE (2010) 5 WRN 132 @ 137.

On the 2nd issue, learned counsel for the Respondent submitted that it is an established principle of law that it is not necessary that the person charged with offence of armed robbery be armed with any firearm or any offensive weapon himself; he is guilty as long as he is in company of any person who is so armed when the offence was committed. He referred to: OSUNG V. STATE (2012) ALL FWLR (PT.650) 1226.

He also contended on the submission of the Appellant that Alibi was not investigated, that this case was investigated at two levels leading to Exhibits B & D tendered, without the Appellant ever raising the defence of Alibi. He further argued that even if the Appellant had validly raised the defence of alibi it would still not avail him in view of the overwhelming evidence adduced by the Respondent through PW1, PW2 and PW3 clearly fixing the Appellant and his gang to the scene of the crime. He referred to: RASHEED V STATE (2014) 16 WRN 127 @ 135; OLAIYA V STATE (2010) ALL FWLR (PT.514) 1 @ 3-4; AZEEZ V STATE (2008) ALL FWLR (424) 1423 @ 1428; OCHEMAJE V. STATE (2008) 15 NWLR (PT.1109)57 @ 67; OMOTOLA & ORS V. STATE (2009) ALL FWLR (PT.464) 1490 @ 67.

Learned counsel concluded that evaluation of evidence is essentially that of the trial Judge, where same is justifiably evaluated as in this case a Court on appeal will not interfere or substitute same with its own view. He urged this honourable Court to so hold and resolve this issue against the Appellant.

On the whole, he urged us to dismiss this appeal and affirm the decision of the Court below.

There is a sister case with Appeal No. CA/EK/89C/2016 which was consolidated with this case by an order of this Court on the 20th day of April, 2016. The two case as at that time were bearing Appeal Nos. CA/EK/20CM/2016 and CA/EK/19CM/2016. Due to the mix-up in the Registry, the two cases, already consolidated were not listed together the same day for hearing.

In consequence, judgment has already been delivered in Appeal No.CA/EK/89C/2016 whereby the appeal was dismissed on the 5th day of July, 2018.

The current appeal having been consolidated with abides the decision in CA/EK/89C/2016.

This appeal is accordingly hereby dismissed.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to preview the lead judgment delivered by my learned brother A.O Belgore JCA.

I agree entirely with the reasoning and conclusion reached therein and therefore equally dismiss the appeal.

 

Appearances:

Adewale Adesina, Esq.For Appellant(s)

Gbemiga Adaramola, Esq. (DPP, Ekiti State) with him, Abiola A. Moshood, Esq. (Legal Officer)For Respondent(s)