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Landmark Judgement

 

IN THE COURT OF APPEAL

ILORIN JUDICIAL DIVISION

HOLDEN AT ILORIN

ON FRIDAY, THE 17TH DAY OF JUNE, 2015

BEFORE THEIR LORDSHIPS:

MOHAMMED LADAN TSAMIYA JUSTICE, COURT OF APPEAL

CHIDI NWAOMA UWA                   JUSTICE, COURT OF APPEAL

UCHECHUKWU ONYEMENAM    JUSTICE, COURT OF APPEAL

CA/IL/C.15/14.

BETWEEN

MUHAMMED BANDE     …. APPELLANT

AND

THE STATE …. RESPONDENT

JUDGEMENT

(DELIVERED BY CHIDI NWAOMA UWA, JCA)

The appeal is against the judgement of the Kwara State High Court delivered on 25th June, 2013 by Folayan, J. in which his Lordship convicted the accused (now Appellant) for the offences of Conspiracy and armed Robbery.

The Appellant dissatisfied with the decision filed his notice of Appeal containing seventeen (17) Grounds on the 21st August, 2013.

The background facts are that the Appellant was charged and arraigned for the offence of Criminal Conspiracy and Armed Robbery Contrary to Section 1 (2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 and Section 97 of the Penal Code Law.

At the trial, the prosecution called five (5) witnesses who testified as PW1 – PW5 and tendered Exhibits A – D. The Appellants statement is Exhibit D, which was admitted in evidence without objection.

At the close of trial, the lower court found the Appellant guilty as charged and sentenced him to death by hanging… In the present case, the learned counsel submitted that the PW2 was confused when he saw the gang and could not remember anything. The PW2 need not have been the one that recovered his telephone from the appellant in the bush. This was not the case of the prosecution at the trial. The prosecution was consistent that the telephone was recovered from the appellant by the search team (including the Police) within the vicinity of the crime, in a nearby bush where he ran to. The PW3 also did not claim to have been the person that recovered the telephone from the appellant but he gave a pointer to the search team that led to the appellant’s arrest, that the culprit could not have gone far because he (PW3) put up a fight and hit him on face and he fell down. The search team shortly after, saw and arrested the appellant with some injuries and most importantly with Exhibit ‘B’ in his pocket.

In my candid view, whether the victims PW2 and PW3 were the ones that recovered the Nokia telephone or the search team it would make no difference to the contents of the charges for which the appellant was tried. They are not material contradictions or discrepancies that would create doubt that there was a robbery in which the PW2’s telephone was stolen, that the culprits were armed and that it was recovered from the appellant who was part of the gang. In conclusion, in respect of this issue, I hold that there was an armed robbery in which the appellant participated in. the first issue is resolved against the Appellant.

In respect of the second issue, the appellant had made out that he was an innocent passer-by. No doubt both parties are agreed that the appellant was arrested close to the scene of the crime, shortly after the armed robbery operation on the clue or tip-off given by the victim the PW3, the search team within a short time arrested the appellant in a nearby bush with Exhibit ‘B’. In his statement Exhibit ‘C’, made at the Special Anti-Robbery Squad Unit the appellant made out that no telephone was recovered from him. In the earlier statement made at Oke-Oyi Police Division, Exhibit ‘D’, the appellant acknowledged the fact that he had two telephones on him but, that he did not know how they got to his luggage. The learned counsel to the appellant did not establish before the trial Court that Exhibit ‘B’ was not found on the appellant at all, shortly after the incident within vicinity of the crime. The condition of the telephone when it was tendered in Court is immaterial. I have with the condition of Exhibit ‘B’ under the first issue.

I am at one with the argument of the learned counsel to the Respondent that the appellant who alleged that he was on his way to his master’s house did not give his details to enable the Police investigate the information. On the other hand, since the appellant was arrested within a short time and within vicinity of the crime, he cannot correctly raise the time the crime was committed, I would for this reason not go into the defence of alibi because he did not qualify to raise it…

Similarly, the learned counsel to the appellant had argued that an identification parade ought to have been conducted for the appellant to be properly identified as one of the armed robbers or not, but the position of the law is that, it is not in every case that an identification parade to identify a suspect is necessary…

Further, there are two main instances where identification may not be necessary. The first is, when the suspect, that subject of identification, is caught committing the offence or caught in the act so as to say, or immediately after, with clear nexus or trace of the offence that has just been committed. The second is, when the suspect admits committing the offence. In both cases, there must be factual and legal nexus between the crime and the suspect beyond doubt. In the absence of these two situations, an identification parade would be necessary.

In the present case, the appellant was arrested by the search team shortly after the incident when the victims raised alarm; therefore the conditions that would exist to necessitate the conduct of an identification parade were absent…

The appellant clearly did not qualify for an identification parade to have been conducted to be sure of his identity. The trial Court rightly dispensed with an identification parade as there was clear and cogent evidence linking the accused person to the crime on the day of the incident. In the present case, there was no mistaken identity of the appellant or that as a passer-by he was by chance arrested in error, mistaken for a runaway culprit. In the circumstances of this case, the prosecution adduced evidence that fixed the appellant specifically close to the scene of the crime where he was arrested and Exhibit ‘B’ recovered from him on the day of the incident. The appellant’s story of where he was coming from and where he was going to was not consistent and was well highlighted by the trial Court. At page 58 of the printed records the learned trial Judge held thus: “The oral evidence is self contradicting where he said when he could not get a vehicle that would take him to Oke – Oyi he decided to trek to where he was rearing cattle, that (sic) in his evidence in chief, but during cross examination he changed gear and said he was not going to Beeri where he was rearing his cattle, instead, he was going to his master’s house at Lanwa not Oke-Oyi again. Exhibit ‘C’ and ‘D’ which are his statements to the Police are contradictory as earlier evaluated”.

The defence of innocent passer-by cannot therefore avail the appellant. In sum, the defence of an innocent passer-by or any other defence in law cannot avail the appellant. I resolve the second issue against the appellant. I hold that the appeal is without merit, same is hereby dismissed.

The judgment of the trial Court in case No. KWS/7C/13 delivered by the High Court of Kwara State, presided over by M. A. Folayan, J, on 25th of June, 2013 is hereby affirmed.

Chidi Nwaoma Uwa

Justice, Court of Appeal.

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