Tajudeen Adeyemi V. The State (1991)

LawGlobal-Hub Lead Judgment Report

O. OLATAWURA, J.S.C. 

The four appellants were charged on two counts of conspiracy and robbery contrary to sections 403(A) and 402(2)(a) respectively of the Criminal Code Law of Lagos State. The two counts read as follows:

“STATEMENT OF OFFENCE – 1st Count

Conspiracy contrary to Section 403(A) of the Criminal Code

PARTICULARS OF OFFENCE

(1) Tajudeen Adeyemi (m); (2) Akinlade Rufus (m); (3) Lateef Yusuf Giwa (m); (4) Gabriel James Hart on or about the 1st of February, 1982 at Abule Oja Bus Stop in the Lagos Judicial Division conspired together to rob.

STATEMENT OF OFFENCE -2nd Count

Armed robbery contrary to Section 402(2)(a) of the Criminal Code Law.

PARTICULARS OF OFFENCE

(1) Tajudeen Adeyemi (m), (2) Akinlade Rufus (m), (3) Lateef Yusuf Giwa (m), (4) Gabriel James Hart on or about the 1st of February, 1982, being armed with offensive weapons to wit: knives and cutlasses robbed one Sunday Oresanya of the sum of N14.00, his vehicle Registration “No. LA.9455 W valued at N500.00 and Wrist watch valued at N20.00 properties of Sunday Oresanya”

The facts relied upon by the prosecution were that on 1st of February, 1982, one Johnson Sunday Oresanya the owner of a Volkswagen Igala LA.9455 W was driving the said vehicle about 10.00 p.m. along Yaba area of Lagos. At the Customs Office in Yaba the 4th appellant suddenly crossed the road and stopped. While Oresanya (who later became the first prosecution witness) was asking him why the 4th appellant suddenly crossed the road, the 2nd and 3rd appellants had opened the back door of his car and took their seats. The first accused entered the car by the front door. He held a cutlass and threatened him with it. Before that, the 2nd appellant who was already in the back seat held his neck.

The 3rd appellant also held “an implement which I thought was a knife.” The 1st prosecution witness concluded his life was in danger as he thought the 3rd appellant would stab him with what was in his hand. As a result of the fright emanating from the dangerous situation he found himself he asked all of them what they wanted. He first of all brought out N4.00 from his pocket. This was snatched from him by the 4th appellant.

The 4th appellant also demanded his wrist watch. The 1 P.W. in a state of helplessness stretched out his hand, the 4th appellant removed the wrist watch from him. The 1st appellant opened the door of the car for him to get out of the car. Before that the 1st appellant had asked him if he had anything else on him again. He took out the remaining. N10.00 from his pockets and he raised up his hands.

This sum, the 1st appellant snatched from him before he took over the driving of the car. Shortly after his car was driven off, 1 P.W. stopped a car which took him to Sabo Police Station, Yaba where he lodged a complaint. According to 1 P.W., he was able to see the faces of the appellants at the time of the incident as the street was well lit. He made a statement.

The following morning he went back to Sabo Police Station where he was directed to the State C.I.D. Panti Street, Yaba. As he arrived at the State C.I.D. Police Station, four men were “being brought out of the cell” and he exclaimed “These are the people who robbed me.”

At the same time he saw the particulars of his car with the policemen bringing them out of the cell. The first appellant was asked how he came by the vehicle he said it was given to him by one Rasaki at Mosalasi Taxi Park to be used as “Kabukabu” i.e. unlicensed taxi cab.

This statement he later recanted. Soon after the appellants robbed the 1 P.W. of his car, they ran into a police road block at Lawanson Bus Stop. The police demanded the particulars of the car i.e. LA.9455 W; the first appellant admitted not being the owner and that the particulars were with the owner.

The car was searched, a cutlass and a knife were recovered on the footmat at the back of the car. All the appellants were present at the time of the search and recovery of the cutlass and knife. The four appellants were then taken to the State C.I.D. Panti Station. It was the first appellant that drove the vehicle from the police check-point to the Police Station.

The prosecution called 3 other witnesses who were policemen in support of the case. At the end of the case for the prosecution, the learned counsel for the appellants made a no case submission. They were overruled.

The appellants gave evidence on oath in defence.

The defence of the first appellant was that he was a motor driver by profession. On 1st February, 1982 at about 9.00 p.m. he collected the car in question from one Rasaki to run it as a taxi and to return it by 11.00pm. The car given to him by Rasaki was not registered as a taxi but was used as “kabukabu.” It was taken on a hire trip to Lawanson area of Surulere. He described the car as Igala Volkswagen. He dropped his passengers at Lawanson Bus Stop and picked another set of passengers. He was stopped by policemen at Lawanson check point. He confessed he was not the owner but that it was on hire from one Rasaki. The car was searched but that nothing was found. He and the other three passengers were also searched and nothing incriminating was found. They were taken to Panti Police Station. He was locked up in a separate cell. It was the following morning they were shown knives. He denied Exhibits C and D were the knives shown to them. He denied the ownership of Exhibits C and D. He denied being taken to any place while he was in custody. Under cross-examination he denied that the name Rasaki was a fake as he had driven Rasaki’s car more than five times before his arrest on 1st February. He denied part of his statement concerning where Exhibits C and D were found. The second, third and fourth appellants were his passengers. He picked one person at Lawanson Bus stop but he was unable to recognise or remember that person out of the three.

The second appellant described himself a student at Zumratu Islamic High School formerly at Yaba but at Ikorodu at the time of trial. On 1st February, 1982 he went to 21 Aborishade Street, Lawanson to assist his sister serve the guests who came for a naming ceremony. After the ceremony he took a private Volkswagen Beetle car. He agreed to pay N1.00 demanded by the driver. Shortly after he was picked up the car was stopped by some “hefty men in plain clothes.” They were ordered out and were searched. Nothing was found. They were taken to Panti State C.I.D. He met the third and fourth appellants inside the Igala Car. He denied the charge.

The third appellant also claimed to be a student of Mawar Uden Secondary School, Idi-Oro Lagos. On 1st February, 1982, his mother sent him at” about 7 p.m. to a friend called Calter Deola of 10 Lawani Street, near Idi Araba with the sum of N100.00. After he had delivered the amount, and on his way back he joined one “kabukabu.” At Lawanson they were stopped by four men in plain clothes. He was searched, but nothing incriminating was found. He saw the other three passengers in the car for the first time on the date in question. He denied the charge. Under cross-examination he said there were four of them in the car and that he was on the back seat. He did not know whether the police searched the car but that he was searched. He agreed that the driver of that car was the first appellant. He also agreed that 2 P.W. and 3 P.W. were among the four police Officers who stopped them at the road block. The third appellant called his mother as a witness. She confirmed that the appellant was a student and that she sent him with N100.00 to a customer called Deola and when he did not return home she went to Deola who confirmed he had earlier delivered the N100.00 sent through the third appellant. It was later she heard the appellant was at Panti Police Station. Another witness called by the third appellant was Adeola King who confirmed receiving the N100.00 sent by the appellant’s mother at about 7p.m. on 1st February. She went with the appellant’s mother to the State C.I.D. Panti.

The fourth appellant who described himself as a trader recalled 1st February, 1982. He left his home to see a customer. On his way back he took one Volkswagen Igala being used as Kabukabu. It was on their way near Lawanson that the car was stopped by “some men in mufty” who “interrogated” them. He did not know the other passengers in the car and they were taken to Panti State C.I.D. Yaba where they were detained. Under cross-examination he confirmed that the first appellant was the driver of the car that night. He said he sat on the back seat. He was not present when the car was searched. His person was searched but there was nothing found on him.

He called his mother who gave her name as Josiah-Hart who confirmed that the 4th appellant went out to demand a debt and when he failed to return she organised a search. She was later told by the police at the State C.I.D. Panti that the 4th appellant was detained for an offence.

At the end of the defence learned counsel on all sides addressed the court. After a thorough review of the evidence and a careful consideration of the submissions made by learned counsel, the learned trial Judge Okuribido, J. found them guilty on the 2nd count of armed robbery contrary to section 402(2)(a) of the Criminal Code Law and dismissed the first count of conspiracy. They were all sentenced to death.

The appellants appealed against their convictions and sentences to the Court of Appeal. Their appeals were dismissed. They are dissatisfied with the judgment of the Court of Appeal. They have now appealed to this court on a number of grounds some of which I will set down later.

Briefs were filed on behalf of the appellants. Since the motion filed by the respondent’s counsel to regularise the respondent’s briefs was not before the court, we exercised our powers under Order 6 of the Supreme Court Rules 1985 and allowed the respondent’s counsel to make oral submissions.

In view of the defence raised by the appellants at the trial, and also the points of law raised in the brief:; filed, it will be better to treat the case of each appellant separately. However, where there is a common defence requiring the same consideration, the same law will apply to the same defence raised by the appellant.

I now begin with the appeal of the first appellant. I will point out before the consideration of this appellant’s appeal that where the same counsel appears for more than one appellant, it will be neater if one brief is filed on their behalf instead of separate briefs. By so doing the time of both the court and counsel will be saved. In a civil appeal it will reduce costs of litigation.

See Order 6 rule 6(3) of the Supreme Court Rules 1985.

1st APPELLANT:

Mr. Nwazojie the learned Senior Advocate has conceded a case of robbery but not armed robbery. This concession was based on the finding of the learned trial Judge and the concurrent finding of the lower court. This concession based on concurrent findings of facts of the lower court is well founded in law:

Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) 694;

Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765;

Onuoha v. The State (1988) 3 NWLR (Pt.83) 460.

The question now is: Is it simple robbery or armed robbery This inevitably leads to the definition of armed robbery under section 402(2)(a) of the Criminal Procedure Law. I will however for better understanding and interpretation set out the whole of section 402 of the Criminal Procedure Law.

It provides:

“402(1) Any person who commits the offence of robbery shall upon conviction be sentenced to imprisonment for not less than 21 years.

(2) If

(a) Any offender mentioned in sub-section (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or

(b) At or immediately before or immediately after the time of robbery the offender wounds any person the offender shall on conviction be sentenced to death.”

Since the appellants are charged under Section 402(2)(a) it is not necessary to consider section 402(b). In my view the ingredients of section 402(a) of the Criminal Procedure Law are:

(i) The person charged must be armed with any firearms or any offensive weapon or chemical or obnoxious material.

(ii) The appellant even if not armed must be in company of any person so armed.

To secure a conviction (i) and (ii) above must be proved where there are more than one accused person. In the case of one accused the offence is proved where the accused is armed with any firearms, any offensive weapon or obnoxious or chemical weapon.

What are the findings to bring the 1st appellant or any other person with him within the warm embrace of section 402(2)(a) There was the evidence from the prosecution that Exhibits C and D are offensive weapons. The defence denied being in possession. The learned trial Judge found thus:

“Upon a careful consideration of the evidence before me, I have found it proved beyond reasonable doubt that P.W.1 was on the first day of February, 1982 at about 10 p.m. around Customs Office at Onike, Yaba, robbed of his car, a Volkswagen Igala Registration No. LA 9455 W by a gang of four men who threatened him with Exhibits. C and D with which they were armed.”

Was the 1st appellant present even if not armed The concession of robbery of the Volkswagen Igala coupled with the evidence of 2nd, 3rd and 4th appellant that they were in the car with him and that he was the driver, together with Exhibits C and D recovered by the police who searched the car at the check point proved conclusively the guilt of the appellant under the second count. To leave no one in doubt the learned trial Judge said:

“I am satisfied from the evidence before me that when the vehicle was searched Exhibits C and D which in my judgment are offensive weapons found therein”.

(the italics is for emphasis)

Mr. Nwazojie, S.A.N. has described 1 P.W. as a “master Exaggerator” and that no credibility should be attached to the evidence of P. W.1. This exaggeration, according to the learned counsel, was in respect of his account of how he was brutalised in his statement to the police but an account which he almost retracted in his testimony. It is not a requirement of section 402(2)(a) of the Criminal Code Law that violence must be proved. The dictum of Obaseki, J .S.C. in Yinusa Ajiloye v. The State (1983) 6 SC.1/5 should not be read in isolation more so when the requirement of the offence charged does not require the use of violence. The appellants have all denied that Exhibits C and D i.e. the knife and cutlass or knives were found in the car of P.W.1. When P.W.1 the owner of the Volkswagen car gave evidence there was not a whiff of a suggestion that he was the owner of Exhibits C and D. The appellants want us to believe that they were in the car by a strange coincidence. It is far fetched. In the overall consideration of the evidence of P. W.1, the Court of Appeal per Akpata, J.C.A. (as he then was) said:

“I do not think that this Court, as an appellate court, is in a position to disbelieve P.W.1 since the trial court that saw and heard him testify attached much credence to his testimony.”

There is ample justification in law for this conclusion. It was an issue of credibility:

Adelumola v. The State (1988) 1 N.W.L.R. (Pt.73) 683.

Ali v. The State (1988) 1 N.W.L.R. (Pt.68) 1

State v. Aibangbee (1988) 3 N.W.L.R. (Pt. 84) 548

Okonji v. The State (1987) 1 N.W.L.R. (Pt. 52) 659

Nasamu v. The State (1979) 6-9 S.C.153.

Learned counsel in his attack of the evidence of 2nd, 3rd and 4th P.W., made much of the description of Exhibits C and D and that there were contradictions in their account. In his brief the learned counsel highlighted these contradictions thus:

“But what goes to the substance of the charge as well as credibility with regard to corroboration is the testimony of P. W.4 regarding the offensive weapons. As highlighted above P.W.2 and P. W.3 have confronted and contradicted each other on whether 2 knives or a cutlass and a knife were indeed recovered in the vehicle in question …

what we have are three witnesses, all police officers differently describing the weapons found in the car in question in three different ways – P.W.2 (An Inspector of Police); a cutlass and a knife.

P.W.3 (A police sergeant who gave the inspector what he recovered from the car): two knives and P.W.4 (another police sergeant), who was handed over the exhibits by his O/C; one small cutlass and putty knife.”

The question now is whether these contradictions in the description of the offensive weapons are material to affect the credibility of these witnesses or the weight to be attached to their evidence. By whatever names Exhibits C and D are called, they were found in their possession and P.W.1 having said:

“The first accused entered the car by the front door and held a cutlass and threatened me with it” appears to me sufficient evidence that one of the appellants was armed. I agree with the conclusion of the Court of Appeal where the court said: “There is however no contradiction as to the fact that two of the robbers were armed with offensive weapons”

I find no merit in the appeal of the first appellant.

I now come to the 2nd appellant.

His defence was that of an innocent passenger in a stolen car. Four grounds of appeal were substituted for the original grounds. The appellant in his brief has abandoned ground 3 which deals with the issue of alibi. Since the issues raised arose from the remaining grounds of appeal, I will only set down the issues and not the grounds of appeal. These issues are:

“1. Whether the Learned Justices of the Court of Appeal should not have given the benefit of doubt to the 2nd appellant having found that it was strange for star witness for the prosecution to study the features of the 2nd appellant whom he alleged was behind him at the time of the robbery and be able to recognise him the following day.

2. Whether the Lower Court was right in affirming the conviction and sentence of armed robbery when it only found that the appellants could not convince the court that the offence of robbery simpliciter was not proved against them.
3. Whether the Lower Court having faulted the basis for the recognition of the 2nd appellant by the star witness for the prosecution was right in holding that formal identification was unnecessary.”

During the oral submission in amplification of the brief filed, Mr. Okunuga the learned counsel for the 2nd appellant conceded that the 2nd appellant is guilty of robbery but not armed robbery. The issues raised deal with identification and whether a formal identification should not have been conducted. Having conceded robbery, the question now is: When was 1 P.W. robbed of his car In my view, and on the facts accepted by the trial Judge and the findings which were confirmed by the Court of Appeal the 2nd appellant was one of those who robbed the 1 P.W. It is an inescapable conclusion that 2nd appellant participated in the robbery. Consequently, my conclusions on whether those who robbed 1 P.W. were armed will equally apply to the case of the 2nd appellant. The concession of robbery knocks the bottom out of the defence of identification. The issue of alibi has been dropped in this court.

In the circumstances, the appeal of 2nd appellant against conviction and sentence also fails.

The appeal against conviction and sentence of the 3rd appellant is based primarily on grounds 5 and 6 of the additional grounds of appeal. These additional grounds without the particulars read:

Ground 5. “When the Court of Appeal found that the so-called spontaneous identification of the 3rd appellant raised a lot of doubt about his identification by P. W.1 and consequently, found that identification most unconvincing, the Law Lords of the Court of Appeal were in grave error to have confirmed the conviction and sentence of the 3rd appellant for armed robbery, basing their decision in this respect on part analysis only of the evidence for the defence as if there was any burden of proof of innocence on him, when the totality of the evidence for his defence, which was largely unchallenged and uncontradicted, point inexorably to the fact that there was a great doubt about the participation of the 3rd appellant in the robbery.”

Ground 6. “The learned Justices of the Court of Appeal erred in law in confirming the conviction of the 3rd appellant for armed robbery, instead of robbery, asserting that “there was no contradiction that two of the robbers were armed with offensive weapons” when that statement was derived from the mere ipse dixit of P.W.1 whose whole testimony has been shown to be full of exaggerations and contradictions and the supportive evidence of P.W.2 to P.W.4 on the of offensive weapons conflicted one with another as to raise grave doubts about the possession of offensive weapons by any of the accused persons.”

It would appear from ground 6 that the appellant would have been satisfied with a conviction on a charge of robbery. But the brief and the oral submissions made in support asked for a total acquittal of the offences charged.

The issues for determination are as follows:

“(a) Whether the appellant was properly and certainly identified as taking part in the robbery.

(b) Whether it can be said with certainty from the evidence of the prosecution and the defence that the appellant took part in the robbery.

(c) Whether the evidence for and against the appellant was properly and separately analysed.

(d) If (a), (b) and (e) above are negative whether it has been established beyond reasonable doubt that –

(i) offensive weapons were used during the robbery operation,

(ii) that the appellant or any of his co-accused, was in possession of offensive weapons at the time of the said robbery operation.”

The strongest point relied upon by this appellant in respect of conviction is that the identification relied upon is unreliable. The learned Senior Advocate has contended that the 3rd appellant did not take part in the robbery. The defence again was that of an innocent passenger. The issue before the court was not that he did not go to where he was sent by his mother, but as at the time he was on his way home was he found in that car which was stolen, if so found, before the recovery of the car did he take part in the robbery It is better to start from the premise of his being found in the car. He did not dispute this. In his evidence in chief he said:

“On my way back I joined a car – Kabukabu (Unregistered taxi). As we got to Lawanson in the car, we were stopped by about four men in plain clothes who claimed they were policemen. We were ordered to surrender ourselves for a search and we did so. My person was searched but nothing was found on me. I had not seen any of the other three passengers in the car before that day.”

From his own evidence, he was found in the stolen car. This will bring one to the point when he boarded the car. I believe that he has supplied the answer as to when he boarded the vehicle. Thus in answer to cross-examination by Mr. Oyeshiku the learned counsel for the 4th accused, the third appellant said:

“I first met the 4th accused on the day of the incident. HE WAS THE ONE PICKED LAST. I did not find him carrying any offensive weapon.”

If the 4th accused was the one picked last, then it follows that the third appellant was with the 4th appellant as at the time the 4th appellant suddenly crossed the road. It will be necessary to repeat the evidence of 1 P.W. on this point. He said:

“When I got to the Customs Office at Onike, Yaba, the 4th accused crossed the road suddenly and halted”

It was after the 4th accused caused P.W.1 to stop and that “the operation took about five minutes” (according to P.W.1) started. In my view the 3rd appellant was in the company of 4th accused/appellant when the operation started. The evidence of P.W.1 was believed by the trial Judge. The learned trial Judge after referring to Section 148(a) which deals with recent possession said:

“In the instant case I am satisfied that the car of the first prosecution witness which was stolen from him on the night of 1st February, 1982 under circumstances which constituted robbery in accordance with section 401 of the Criminal Code Law, Laws of Lagos State, “is the one found as it were in the possession of the four accused less than ninety minutes after the robbery and the inference which I draw on these facts is that the accused are the robbers.”

Later in the judgment the learned trial Judge said:

“In this case, the evidence of recent possession was not the only evidence against the accused in charge of armed robbery there was also the evidence of the first prosecution witness which I accept that the four accused robbed him of his car and…”

The defence of the 3rd appellant was rejected by the Court of Appeal.

The court said:

“However, what the defence of the 3rd appellant amounts to is that he entered the car, Exhibit B, at about 9p.m. when P.W.1 had not been robbed of his car. If he was in any car driven by the first appellant at about 9 p.m., it must have been another car which took him and his colleagues to the scene of crime”

Learned Senior Advocate has submitted that time was never of essence when the 3rd appellant made his statement. Where an event occurred or happened at a particular time or at a time so closely connected with the matter in issue an accused that set up a different time which later proved to be untrue may have his own version rejected. The mere fact that the version put forward is rejected has not in any way violated the provision of section 33(5) of the 1979 Constitution which deals with presumption of innocence. The issue of identification was dealt with. The version put forward by 1 P.W. was accepted and confirmed by the lower court.

It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence. Apart from the issue of street lights raised during cross-examination, P.W.1’s ability to observe what happened at the material time was not discredited. 1st P.W. came to the police station (unknown to him) where the appellants were detained and according to 4 P.W. Police Sergeant Akanmu Abioye:

“Immediately the accused were brought to the counter, the P.W.1 shouted “These are the people who robbed me yesterday”. I then asked who he was and he said he was the person robbed of his car. The accused did not say anything in answer to the P.W.1’s allegation.”

The credibility of 1 P.W. with regard to those who robbed him would have been in doubt if at the time he saw the appellants at the police station he kept mute. It was a natural reaction.

There is a little mix-up on the part of the learned counsel. It was not the prosecution’s case that the appellant did not go to where he was sent by his mother. The prosecution’s case was that even if he went there, it was thereafter he took part in the robbery. It is not a fair summary of the judgment to say that the learned trial Judge did not consider the case of each appellant especially the third appellant separately. As to whether the 2nd, 3rd and 4th appellants were passengers, the learned trial Judge said:

“I do not in the first place believe that any of the second, third and fourth accused was a passenger in that car at the material time. Furthermore having regard to the different and conflicting locations at which they all claimed to have boarded the car, and watching their demeanour in the witness box, I have no hesitation in rejecting their evidence of being passengers as mere fabrication and entirely false.”

There are other passages in the judgment where their individual roles, their defences and evidence of their witnesses were carefully scrutinized.

In view of my analysis of the count of armed robbery when dealing with the case of the first appellant, I will reject the submission made in the alternative that the appellant be found guilty of robbery. Consequently the appeal of the 3rd appellant also fails.

Now to the case of the 4th appellant who, so to say, started it all. He crossed the road suddenly whilst the P.W.1 was driving along the road. The learned counsel for the 4th appellant Dr. Ometan has introduced a procedure unknown to the Rules of the Supreme court by adopting the brief filed and used in the court below and to rely on it. There is no provision for that in our Rules. A separate brief is filed in the Court of Appeal and the Supreme Court. Brief filed in the Court of Appeal is based on the case presented in the High Court. The brief filed in this court is in respect of the appeal argued and decided by the Court of Appeal. It is permissible, where applicable, to make the same submissions made before the lower court in this court. This will be embodied in the brief filed in the Supreme Court. Not only are we going to read a brief not relevant to matters before us but also to pronounce on an issue already decided upon by the lower court and which is not made an issue in this court.

The issues raised by the learned counsel in his brief filed on 25th January, 1990 are as follows:

“1. Whether from the evidence before the court the Prosecution proved beyond reasonable doubt that the persons who were arrested in the stolen vehicle were the same four persons who robbed the P.W.1 of his Car on the night of 1st February, 1982.

2. Whether the Prosecution proved beyond reasonable doubt that the 4th appellant was not a mere passenger in the car when it was stopped by the police at the check point at Lawanson Bus Stop on the 1st February, 1982.
3. Whether having regard to the evidence proffered at the conviction and sentence of the 4th appellant was reasonable, warranted and could be supported.
4. Whether the Court of Appeal was right in regarding as satisfactory the method adopted in identifying the 4th appellant – a policeman emerging with the particulars of the stolen Vehicle at the Police Station – the four accused persons/appellants with him and the 1st P.W. thereby exclaiming that the four persons he saw with the policeman were those who robbed him of his vehicle; whether in the circumstance it was right and proper to dispense with Identification parade.
5. Whether there was conclusive proof that offensive weapons were used at the time of the alleged robbery operation.
6. Whether the 4th appellant as a mere Passenger in the vehicle was in possession of offensive weapons at the time of the said robbery operation.”

With regard to the issue of armed robbery, I have treated this fully when dealing with the case of the 1st appellant. The same interpretation will govern the entire appeal where the issue of armed robbery is raised. With regard to the question asked on page 3 of the appellant’s brief, my answer is that armed robbery has been proved.

Identification of the 4th appellant featured again in the appellant’s brief. Dr. Ometan has submitted the description of the incident given by P.W.1 during the short time of the alleged encounter with the robbers “did not place him in a position to identify with certainty the four persons who snatched the car from him.” From the printed record, the 4th appellant’s identification is the easiest in that he caused P.W.1 to stop and to ask him why he crossed the road suddenly. When Inspector Joseph Baba (P.W.2) gave evidence he said in his evidence in chief concerning the 4th accused who is the 4th appellant thus:

“The fourth accused at the Panti State C.I.D. confirmed that they had just robbed someone of the vehicle around Sabo Area Iwaya area – Yaba.”

Mr. Akinboyewa who held Mr. Oyeshiku’s brief for the 4th appellant did not ask a single question on this, neither was it suggested to the witness that this piece of damning evidence was untrue.

The learned counsel’s submission about the 4th appellant’s identification ignored Exhibit J, – the statement made by the 4th appellant on 4th February, 1982 where he said:

“On our way to Yaba, we came across a police check point and they searched our persons and they could not find anything. They later searched inside the car and found knife and one small cutlass.

When police asked us how we came about the cutlass and knife found in the car, none of us could explain hence they arrested us and brought us to the State C.I.D. Yaba, Lagos.”

All that the appellant said in his evidence was that the statement was not read over to him. He did not deny making the statement. I therefore agree with Mr. Onyieke in his oral submission in respect of all the appellant’s that merely being armed at the time of robbery is sufficient to sustain the conviction. The appeal of the 4th appellant against his conviction and sentence fails.

In sum, the appeals of all the appellants against their convictions and sentence are hereby dismissed. The convictions and sentence are hereby affirmed.

M. L. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother. Olatawura, J.S.C. I agree that the appeals by all the four appellants should be dismissed.

At their trial, the learned trial Judge, Okuribido, J. made the following crucial finding in his judgment-

“Upon a careful consideration of the evidence before me, I have found it proved beyond reasonable doubt that the P.W.1 was, on the first day of February, 1982 at about 10 p.m. around the Customs Office at Onike, Yaba, robbed of his car, a Volkswagen Igala registration No.LA 9455 W by a gang of four men who threatened him, with Exhibits C and D with which they were armed. I believe too that having robbed him of the car, the latter was stopped by the police at a road block near Lawanson bus stop in Surulere.

It is undisputed that when the car was stopped the four accused were in it, the first accused being at the steering wheel. I am satisfied from the evidence before me that when the vehicle was searched, Exhibits C and D which in my judgment are offensive weapons found (sic) therein.”

This finding was not disturbed by the Court of Appeal and from all that has been argued by all the learned Counsel for the appellants before use, nothing has affected the finding. I am satisfied that there was ample evidence before the trial court to justify the conviction of all the appellants.

Accordingly, I too will dismiss their appeals and confirm the decision of the Court of Appeal which affirmed their convictions of armed robbery as charged and the sentence of death passed upon each of the appellants.

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Other Citation: (1991) LCN/2473(SC)