Adebowale Ajao V. The State (1984)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

On the 20th September, 1984, this appeal was dismissed after hearing Mr. Agbaje, learned counsel for the appellant, who elaborately expatiated on his brief; and after hearing Mr. Bello, Principal State Counsel, Ogun State, who defended the judgments of the two lower courts. As indicated on that day, I now give my reasons for doing so.

The appellant was convicted and sentenced to death for the offence of armed robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, No.47 of 1970. The trial took place at Abeokuta in the Ogun State High Court. His appeal to the Court of Appeal was unanimously dismissed by the three justices of the Court of Appeal.

The main crush in the four grounds of appeal may be summarised under two headings:

1. Alleged inconsistencies and contradictions in the statements of the two star witnesses to the police with their testimony in court. The two witnesses were the 4th and 5th p.ws. 4th P.w. chased and caught the appellant and handed him over to Inspector of Police of the Highway Police Patrol, P.W.5.

2 That the appellant was not satisfactorily identified as a member of or linked with the gang which robbed 1st and 2nd p.w.s. of the Toyota Crown saloon car registration No.4347 D along Lagos/Abeokuta Road on the 15th November, 1979.

It was argued on behalf of the appellant that the statement of 4th P.w. to the police did not contain some material evidence which he gave in his testimony before the trial Court. Therefore, it was argued, those pieces of additional evidence given in his evidence should not have been relied upon by the trial court. In his brief, Mr. Agbaje listed eleven of what he described as clear inconsistencies between his statement to the police and his testimony in court. I have read the passages quoted in the brief and the relevant statement and evidence and I am unable to see any material conflict, or inconsistency as alleged. The witness explained why his statement was concise and not detailed. This was because the police were overstretched on the day as there were a number of robbery cases being investigated by the police at the material time. He was therefore requested to be brief and that at the hearing of his evidence in court, he would have the opportunity of giving a more detailed account of what he knew and saw. The witness admitted that he was not present at the time of accident between the “Molue” bus and the Toyota saloon car found near the scene. What the witness actually said in court was that he saw the two vehicles already involved in an accident. I quote the relevant part of his evidence:-

“I heard people shouting ‘thief’, ‘thief’, as I was assisting with others to effect rescue operations to some of those who are involved in this accident between the ‘Molue’ and the Toyota car. I looked up from the bending position that I was and saw some people running away towards Abeokuta on the same 40 Lagos/Abeokuta motor road. I saw accused as one of those running away and of whom the cry thief, thief was being made. Accused was in the rear of about six (6) people running away.

Accused had another over-dress (like a pull-over or something of the sort) on top of the same dress he now has on him as he stands in the dock in court this morning (4/3/81). I chased them in my-own vehicle while I observed that other motorists in their different vehicles followed me in the chase after accused and his absconding confederates. Accused’s other confederates quickly got into another car (vehicle) and I attempted to halt that other escape car by colliding with it at the side which accused attempted to use into (sic) getting into the escape car but he changed sides and the escape car sped away towards Abeokuta direction.

As accused’s confederates escaped in their escape car the accused who was left stranded in the face of overwhelming motorists who had stopped and gathered in every possible direction for his escape in both the Lagos and or Abeokuta ends of the Lagos/Abeokuta motor road, bolted along the railway line towards Abeokuta direction and abandoning the main road. Accused had a matchet on him (he was holding on to the machet as he ran)”.

While it is correct that the witness did not mention in his statement that he saw about six men running in a bid to escape, he stated he saw the accused, running, while people were pointing at him and shouting ”thief”, and that he eventually ran across the rail line into the bush where he was caught and handed over to the 5th P.w. The appellant admitted he ran into the bush across the railway line from where he was brought out and handed to the 5th P.w. 5th P.w. identified the 4th P.w. as one of the persons who caught the appellant and who handed him over. The trial judge accepted the evidence of 5th P.w. who further testified that he saw no matchet cut injury on the appellant at the time he took him into custody. Further, he believed the 5th P.w. that the appellant did not tell him that he was a victim of attempted car snatchers. That 4th P.w. arrested appellant and handed him to the 5th P.W., coupled with his denial of his arrest by 4th p.w., his false story of injury on his head and journey to Abeokuta to see his brother Folorunsho, sufficiently justified the trial judge in accepting the testimony of 4th P.w. and 5th P.w. in preference to that of the appellant.

It was not suggested to P.w.5 that he saw any matchet injury on the head of the appellant when he was brought out of the bush. Another point of alleged inconsistency was the testimony of P.w.5 with his statement (or proof) as regard the matchet which the appellant was alleged to be holding at the time of his arrest. P.w.5 satisfactorily explained the apparent contradiction in his evidence-in-chief under cross- examination. He said that he did not see or recover the cutlass from the appellant. He testified that the matchet was handed over to him at the time appellant was brought out of the bush by those who apprehended him. Both accused and cutlass were handed to him on the road at the same time. It will be unreasonable to leave the appellant with the matchet after his arrest. While appellant was seen and caught with the machet, he had been relieved of it after his arrest before he was surrendered to 5th P.w. 30

The learned trial judge carefully examined the evidence in its entirety and arrived at the decision “That the appellant was one of the member (sic) of six persons who robbed the 1st P.W. of the Toyota”. In particular he considered amongst other evidence:-

(1) The appellant was himself on the Lagos/Abeokuta road on the day, that is, on 15/11/79.

(2) The prosecution adduced evidence which the appellant himself confirmed before the court that a gang of armed robbers carrying cutlasses operated on the road on the day in question.