IKUJUNI v. STATE

CITATION: (2016) LPELR-41343(CA)

In the Court of AppealIn the Akure Judicial Division

Holden at Akure

ON FRIDAY, 24TH JUNE, 2016Suit No: CA/AK/148C/2013

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal

BetweenTAYO IKUJUNI - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. CRIMINAL LAW AND PROCEDURE- IDENTIFICATION PARADE:Whether identification parade isrequired in most cases of robbery"There is no doubt that in cases ofarmed robbery the identity of anaccused person is always in issueand failure of the trial Court toconsider it when properly raised isfatal to the prosecution's case.However in the instant case theidentity of the Appellant was notdirectly made an issue. See Fabiyi v.State (2015) 19 NWLR (Pt. 1490)80."Per ABIRIYI, J.C.A. (Pp. 10-11,Paras. E-A) - read in context

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2. CRIMINAL LAW AND PROCEDURE- OFFENCE OF ARMED ROBBERY:Ingredients required to be proved bythe prosecution to establish theoffence of armed robbery"To secure a conviction for armedrobbery the prosecution must provethe following:a) that there was an armed robberyb) that the accused was armed andc) that the accused while with thearm or arms, participated in therobbery.Once the prosecution proves theabove i ng red i en t s beyondreasonable doubt, failure to tenderthe offensive weapon cannot resultin the acquittal of the accusedperson because of the possibility ofthe accused person doing away withthe offensive weapon after thecommission of the offence in orderto escape justice. See Olayinka v.State (2007) 9 NWLR (Pt 1040)561."Per ABIRIYI, J.C.A. (P. 18, Paras.B-E) - read in context

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3. EVIDENCE - CONFESSIONALSTATEMENT: Whether a court canconvict on a retracted confessionalstatement"It is the law that an accused personm a y b e c o n v i c t e d o n h i sconfessional statement even ifretracted. But the Court is expectedto look for evidence outside theconfessional statement no matterhow slight tending to show that theaccused committed the offence."PerABIRIYI, J.C.A. (P. 17, Paras. C-D) -read in context

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JAMES SHEHU ABIRIYI, J.C.A. (Delivering the

Leading Judgment): The Appellant and one other person

were convicted on the 16th May 2013 in the High Court of

Ondo State holden at Akure for conspiracy to commit

armed robbery and armed robbery contrary to Section 1(2)

(a) and (b) and Section 6 (b) of the Robbery and Firearms

(Special Provisions) Act, Cap. R11 Vol. 14 Laws of the

Federal Republic of Nigeria 2004.

The facts of the case as can be gathered from the evidence

of eight witnesses called by the prosecution are as follows:

On 27th July, 2011 between 12:30am and 1:30am the

Appellant and many others commenced the robbery

operation in which the house of Pw1 and Pw2 (husband and

wife) and that of Pw4 were invaded. The police was called.

Some of the armed robbers broke into the house of the Pw1

and Pw2. They beat Pw2 and attempted to rape her while

Pw1 was hiding in the ceiling. The robbers saw him and

told him to come down and face his judgment.

They removed the wedding ring of the Pw2. She gave them

N10,000. They collected three handsets from her; Nokia 52,

Nokia 3300 and Nokia 2700.

While the attention of the robbers

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was on the Pw1 who hid in the ceiling the police was heard

shooting from outside.

The armed robbers scaled the fence and escaped.

The robbers entered the house of the Pw4 at about

12:30am on 27th July 2011. She quickly called the

telephone line of a policeman she knew. They told her to lie

down. They wanted to rape her but when they saw that she

had bandages over her thighs and body due to an accident

she had, they spared her the ordeal. She gave them her

gold jewelries and N25,000. They started beating her

because the N25,000 was too small. Then she gave them

her mother's N260,000 which was with her. She gave the

armed robbers her handset and the handsets of her

children. She gave them six handsets.

Ten minutes after the armed robbers left, the police came.

Later that morning the Pw1, Pw2 and Pw4 were invited to

the police station and asked if they could identify any of the

armed robbers. Pw1 and Pw2 said they could. Pw4 said she

could not as she was too afraid to look at their faces while

they were in her house. The Pw1 and Pw2 identified the

Appellant among six other people.

When the Pw1 pointed at the Appellant as

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one of the armed robbers the Appellant started weeping

and asked the Pw1 to forgive him.

The Appellant stated in his defence that he was going to

work in the morning when a black car parked close to him.

He was asked to enter the vehicle. When he entered the

vehicle he saw four men leg-chained in twos. He entered

the vehicle and became the fifth person.

When they got to Fagun Police State, he was not searched

immediately he was arrested. When they got to Fagun

Police Station, he was placed behind the counter. He was

taken to SARS Akure. He did not make a statement at

Fagun Police Station. At SARS, he was asked questions and

he said he did not have answers to the questions.

He denied robbing anybody. The day he was arrested he

told the police that he was going to his place of work.

After considering evidence led by the Respondent and the

appellant's defence as well as addresses of learned counsel

for the parties, the lower Court as pointed out earlier

convicted the Appellant and the person with whom he stood

trial.

The Appellant filed an initial notice of appeal containing

one ground of appeal. The Appellant also filed an

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amended notice of appeal containing four grounds of

appeal.

From the grounds of appeal, the Appellant presented the

following three issues for determination:

(i) Whether the Appellant was properly and

adequately identified by the Prosecution Witnesses

vide formal identification parade to have occasioned

his conviction for armed robbery by the trial Court

having regard to the gamut of entire evidence before

the Court. (Ground 1)

(ii) Whether the trial Court can act and rely on

retracted confessional statement which was not

voluntarily made by the Appellant nor signed by him

to sustain the conviction of the Appellant (Ground 2)

(iii) Whether the two counts of robbery and

conspiracy brought against the Appellant was

sufficiently proved beyond reasonable doubt to

warrant his conviction thereof for same (Grounds 3

and 4)

The Respondent formulated the following three issues for

determination:

1. Whether or not identification evidence in this case

properly and adequately linked the Appellant to the

offences charged.

2. Whether or not the confessional statement of the

Appellant is admissible in law and can ground his

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conviction.

3. Whether or not the Prosecutions proved his case

against the Appellant beyond reasonable doubt to

warrant his conviction by the learned Trial Judge

having regard to the evidence adduced at the trial.

The issues formulated by both parties in my view are more

than identical as they are the same although differently

worded.

The appeal was contested upon the following briefs:

1. Appellants Brief of Argument dated and filed on 20th

August 2014 settled by Lanre Oliyide, Esq.

2. Respondent's Brief dated 8th October 2015, filed on 9th

October 2015 deemed duly filed and served on 1st March

2016 settled by A. O. Adeyemi-Tuki (Mrs.) Director of

Public Prosecutions, Leo Ologun, Esq. Deputy

Administrator General And Public Trustee and A. A.

Oladunmiye Ministry of Justice, Ondo State.

3. Appellant's Reply on Law dated and filed 11th March

2016.

Learned counsel for the Appellant submitted on issue 1 that

an accused person must be adequately identified to have

taken part in the commission of an offence for which he is

charged and convicted before such conviction can be

sustained.

The Appellant in this case, it

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was argued, was not properly identified by the witnesses

called by the prosecution to have participated in the

alleged conspiracy to commit armed robbery and armed

robbery.

The prosecution, it was submitted, has a duty to prove the

guilt of the Appellant beyond reasonable doubt. We were

referred to Utuyorume v. State (2011) ALL FWLR (Pt.

560) 1263 at 1280 and Almu v. State (2009) 4-S SC

(Pt. II) 233 at 56-61.

The prosecution, it was submitted must, prove the three

ingredients of armed robbery beyond reasonable. These

are:

1) That there was a robbery or series of robberies.

2) That the robbery was an armed robbery.

3) That the accused took part in the robbery.

We were referred to Ebeinwe v. State (2011) ALL FWLR

(Pt. 566) 413, Osetola v. State (2012) ALL FWLR (Pt.

566) 1020.

It was contended that the Pwl had no opportunity to see the

armed robbers because he was hiding in the ceiling and

that the Pw2 said the appearance of the Appellant at the

time of the robbery was different from his appearance in

Court.

It was submitted that recovery of Pw4's cloth with the

Appellant only raised a prima facie case of

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receiving stolen property by the Appellant and was not

conclusive evidence of participation in armed robbery by

the Appellant.

The parade done by the prosecution, it was argued was

informal and at variance with the judicially approved

standard of identification needed as confirmed by the

authorities.

It was submitted that the identification evidence adduced

by the prosecution with regard to the facial identification of

the Appellant as one of the robbers is extremely poor and

did not qualify as a formal identification parade known to

law.

On issue 2, it was submitted that the lower Court relied and

acted on Exhibits P14, P15, P16 and P16A which are

alleged confessional statements of the Appellant and the

other accused person to convict the Appellant without

credible and cogent independent evidence to corroborate

the alleged confessional statements relied upon by the

lower Court. We were referred to page 146 lines 6-10 of

the Record of Appeal.

That the Appellant denied making the statement and that

the Court was entitled to conduct a trial within trial.

The Appellant in any case retracted the statements

Exhibits P14 and P16,

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it was pointed out. Yet the lower Court relied on the

retracted confessional statements to convict the Appellant

without cogent independent evidence showing that the

confession was probable.

Apart from this, Exhibits p14 and p16 it was submitted

were not signed.

It was submitted further that the lower Court erred when it

held that the other accused person mentioned the name of

the appellant in his statement as a member of the gang

when such statement was not made in the presence of the

Appellant and he adopted it.

On issue 3, it was submitted that no weapon or firearm was

found in possession of the Appellant and this has created

doubt in the prosecution's case. It was submitted that there

was no evidence that the Appellant participated in the

armed robbery against the Pw1 and Pw2.

On the alleged conspiracy to commit armed robbery, it was

submitted that this was not proved.

The lower Court, it was submitted, wrongfully acted on the

extra judicial statement of the 2nd accused to conclude that

both the Appellant and the other accused person had a

common criminal intention to commit robbery.

The prosecution, it was

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finally submitted, failed to prove a case of armed robbery

and conspiracy against the appellant and this Court was

urged to so hold.

On issue 1, learned counsel for the Respondent submitted

that there was abundant evidence to the effect that the

Appellant was positively identified by the P1 and Pw2 as

one of the robbers who committed the offences charged.

The Appellant, it was contended, was arrested on the day of

the incident near the scene of crime with some of the stolen

items on him and he confessed to the police that he was

among the armed robbers.

Learned counsel for the Respondent sought to challenge

the competence of issue 2 without a formal objection raised

in the brief. That issue 2 is not based on the ground of

appeal and is vague.

Learned counsel then proceeded to point out that no trial

within trial was conducted because there was no objection

to the admission of the statements on ground of

involuntariness. It was submitted that the lower Court

tested the confessional statements and found that they

were true.

Exhibits P14 and P16 contrary to submission of appellant's

counsel were signed it was submitted.

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On issue 3, it was submitted that the prosecution led

credible and compelling evidence to establish the guilt of

the Appellant and the co-accused at the trial.

Contrary to the submission of appellant's counsel that no

firearm was found on the Appellant, the lower Court it was

submitted rightly convicted the Appellant having found that

the Appellant was part of a robbery gang that perpetrated

the crime and that the robbery was armed.

In his reply on point of law learned counsel for the

Appellant labored to respond to the purported objection

raised by the Respondent to issue 2. I think, learned

counsel for the Appellant ought not have bothered to

respond to the purported objection when it was merely

smuggled into issue 2 argued by the Respondent's counsel

who did not tell the Court that he had any objection to issue

2.

The purported objection is therefore hereby struck out.

There is no doubt that in cases of armed robbery the

identity of an accused person is always in issue and failure

of the trial Court to consider it when properly raised is fatal

to the prosecution's case. However in the instant case the

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identity of the Appellant was not directly made an issue.

See Fabiyi v. State (2015) 19 NWLR (Pt. 1490) 80.

Was the Appellant identified as a participant in the armed

robbery operation? The evidence of Pw1 and Pw2 is apt on

the point. At page 32-33 and 34 of the record of appeal the

Pw1 stated thus:

"They asked whether I would open the door him the

previous occasion. My wife asked me whether we

should open the door. I told her I don't have money.

My wife is Akinkunmi Bukola. Shortly after that, I

noticed that they had broken my window and were

attempting to enter. When you realized that they had

made serious efforts I begged my wife to allow me to

hide. She asked me where I would hide I said she

should allow me to enter the ceiling. I wanted to

climb but I could not because it is a bit high. My wife

bent for me to climb her shoulder so that I could

climb the ceiling. After about 5 minutes they entered

the house. After they entered the house, they started

beating my wife. The opened the drawer where they

earlier took money from me but found that there was

no money there. They said if there is no money' she

would entertain them with her body. After

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they said that they took her wrapper, tore her pant

and pushed her to the bed. They started auguring

among themselves who is first to rape her. My wife

then entered into the net on the bed. The one who

said the other one is first to rape her spoken in Ikale

language. He pointed a gun at my wife's head and the

one who was to first rape her put his gun his armpit.

My wife crawled into the net, the one who was to be

the first to rape her refused to a knife. They were

using the knife to cut her thigh so that she could

expose herself properly. The 3rd one who came into

him from another room observed that there were

broken asbestos sheet and he asked how come there

he asked how come there were broken asbestos on the

floor. My wife then explained that when electrical

wanted to work on the light he broken asbestos. At

that point they lost the attention on her. The one who

asked them started climbing. He noticed where I was

hiding from where I was looking at what was going

on."

Pw1 concluded thus at page 34 of the record of appeal:

"At about 6.30 a.m. Police mobilized and came to the

area. The Police said some of them had been caught. I

was invited to

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the station, if peradventure I could identify any of

them. I said I could identify the one who spoke in

Ikale dialect. I was taken to where 7 persons were

with the Police, I was asked who I could recognized

and I pointed at 1st accused person. He started

weeping and asked me to forgive him and that he

would not do so again. I did not see the 2nd accused,

I mean I could not identify him. The 1st accused is

the person who spoke in Ikale dialect. He is the

person who inflicted wound on my wife whilst

insisting he would be the first to rape her."

At page 35-36 of the record Pw2 stated thus:

"We gathered ourselves into our private toilet. The

robbers collected my wedding ring. They asked for my

husband and I said he was not in. they asked for

where he went, they said his vehicle was outside, I

said he went for a vigil with his friend. They slapped

me again. They asked for the car keys. I went to the

sitting room whilst looking for the keys I could not

find them. They kept on beating me. They asked for

money and I said we did not have money. I gave them

the N10,000.00. They collected 3 handsets from me,

Nokia S. 2, Nokia 3300, and Nokia 2700. They

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said that means I would entertain them. They said I

should proceed to my husband's bed. When we got

there they removed my wrapper and tore my pant. The

two of them were with me. One was standing the

other one climbed the bed. I kept on begging. One of

them said I was not cooperating. He requested for a

knife and began to cut my body. As I was struggling

the 3rd person was coming from another room. He

saw broken asbestos of where my husband escaped

through. He asked what happened. I said our light

was faulty and that electrical come to come to correct

the fault through it. He said it could not be true, he

said my husband must have escaped through the

place. Immediately he climbed the ceiling. He flashed

his touch and saw my husband. He told the others

that it appears my husband wanted to escape, He

asked my husband to come down for his judgment. He

said he would be judged before members of his

family. He said MOPOL 1 should surround the

premises that the man wanted to escape. Shortly after

their were gun shots, one of them announced that

MOPOL 2 is around and MOPOL 1 should escape for

their lives."

She stated further thus:

"I can recognize one

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of the persons who entered the room with me. I could

identify the 1st accused person. The 1st accused was

the person who pointed a gun at me. He wanted to

rape. He climbed the bed. Both of them were holding

guns. I cannot recognize the one that inflicted knife

wounds on me. The 1st accused was the first person

who entered the house. He collected my wedding ring.

There was confrontation between the robbers and

Police until around 4.00 a.m. or 4.30 a.m., Policemen

came and told us that they arrested some of the

robbers. Later, we were they invited to see whether

we could identify the robbers and whether could

identify some our stolen items. My husband and I

went to the station. At the station, there were many

people, we were almost disallowed from entering. We

said we were victims. I was invited in. They asked me

whether I would be able to recognize any of the

robbers if I see them. There were about 6 or 7

persons where I was taken to, I pointed at the 1st

accused person. He was asked for the native of his

town. He said he is from Ikale land from Iju-Odo. I

was taken to where the recovered items were. I could

only recognize the Nokia 3300 out of the thing I saw."

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It is clear from the evidence of the Pw1 reproduced above

that this was a second criminal journey to his house by the

robbers. It is also clear from his evidence that he was able

to watch the robbers from the ceiling where he was hiding.

The robbers in the house most of the time were only two. A

third one only came in shortly before the arrival of the

police. The Appellant and the others were not masked and

carried halogen lamp.

It is clear from the evidence of the Pw2 that she was in

close contact with the armed robbers. She was therefore

able to see the Appellant closely.

In my view on the evidence of the Pw1 and Pw2, the

Appellant was clearly identified as one of the robbers who

stormed that community on the night of 27th July 2011.

This is re-enforced by the arrest of the Appellant early that

morning with some of the stolen items around the area.

The Appellant in his statements to the police identified

himself as being putt of the robbery gang.

All these made the appellant's identification superfluous.

Issue 1 is therefore resolved in favour of the Respondent.

Issue 2 is rather short

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too. When the prosecution sought to tender the statements

of the Appellant, the objections raised as to their

admissibility was on the fact that the Appellant did not

make them. In the circumstances, they were admissible.

They were correctly admitted. If the objections were on the

basis that they were not voluntarily made, the lower Court

would have been compelled to conduct a trial within a trial.

It is the law that an accused person may be convicted on

his confessional statement even if retracted. But the Court

is expected to look for evidence outside the confessional

statement no matter how slight tending to show that the

accused committed the offence. In the instant case the

lower Court found the confessions true in the light of

evidence of other witnesses called by the prosecution. This

finding cannot be faulted. The Appellant for example was

identified by the Pw1 and Pw2 as one of the armed robbers

that broke into their house. There is evidence the Appellant

was arrested that morning with some of the items Pw2 and

Pw4 identified to have been stolen from their houses earlier

that morning.

Contrary to the claim by learned counsel for the

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Appellant that the statements Exhibits P14 and Pw14 were

not signed by the maker, they were.

Issue 2 should also be resolved in favour of the Respondent

and against the Appellant.

Issue 2 is accordingly resolved in favour of the Respondent.

To secure a conviction for armed robbery the prosecution

must prove the following:

a) that there was an armed robbery

b) that the accused was armed and

c) that the accused while with the arm or arms,

participated in the robbery.

Once the prosecution proves the above ingredients beyond

reasonable doubt, failure to tender the offensive weapon

cannot result in the acquittal of the accused person

because of the possibility of the accused person doing away

with the offensive weapon after the commission of the

offence in order to escape justice. See Olayinka v. State

(2007) 9 NWLR (Pt 1040) 561.

Although the Appellant was not arrested with any offensive

weapon, this would not entitle him to acquittal. There is

evidence that the Pw1 and Pw2 saw him with an offence

weapon during the robbery operation. He was also in

company of two others with offensive weapons. Pw5 one of

the

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Police Officers who rushed to the scene of the robbery in

response to distress calls ran into the gang of armed

robbers with whom they exchanged gunfire. His driver Pw6

was even shot in the arm.

It is therefore irrelevant that the Appellant was not

arrested with any offensive weapon.

Issue 3 is also resolved in favour of the Respondent.

All three issues having been resolved in favour of the

Respondent, this appeal should be dismissed.

It is dismissed by me.

The conviction and sentence of the Appellant are hereby

affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had a preview

of reading the lead judgment of my learned brother, James

Shehu Abiriyi, JCA. He has exhaustively dealt with the

issues for determination. I entirely agree with the

reasoning and conclusion reached thereat. I also dismiss

the unmeritorious appeal. I affirm the conviction and

sentence of the Appellant by the lower Court.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having had

the privilege of a preview of the leading judgment of my

learned brother James Shehu Abiriyi, JCA in draft before

now, I am in agreement and concur that the

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appeal lacks merit.

The elements of armed robbery had been established and

the appellant had been identified by the witnesses.

This evidence of identification and the corroborating

circumstances were reinforced by the accused person

himself in his confessional statement which was not

challenged on the basis of any of the vitiating elements that

require the holding of a trial within trial ie mini trial to

enable a Court determine whether it would be admissible at

all. There being no such objection but a general denial and

retraction of the statements, the said retracted statement

are damning and even on them alone conviction could be

rested.

They were statements that were supported in their material

facts relevant by the evidence of PW1 and PW2.

For these and the more elaborate reasons articulated by

His Lordship, James Shehu Abiriyi, JCA which I concur

with and adopt, I too, shall dismiss this appeal.

Appeal dismissed.

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