Ganiyu Gbadamosi Vs The State (1992)

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OMO, J.S.C. 

The two appellants and one other were jointly charged on two counts of conspiracy and armed robbery in the Lagos High court (Ikeja) in May, 1983. After a trial, in which they testified but called no witnesses, they were all found guilty on 10th September, 1985 of conspiracy and robber simpliciter (not armed robbery). They were then sentenced to 25 years imprisonment on each count, sentences to run concurrently.

Whilst the convicted persons appealed against their conviction and sentence, the State cross-appealed against the conviction for robbery simpliciter, contending that the conviction be set aside and a verdict of guilty of armed robbery be substituted.

On 18/6/91, after considering the briefs filed and the oral arguments offered by both sides, the Court of Appeal dismissed the appeal of the two appellants and allowed the appeal of the third convict. It also allowed the cross-appeal, finding the appellants guilty of armed robbery as originally charged.

Dissatisfied with this judgment, the appellants have appealed to this Court against the conviction and sentence.

The relevant facts of this case, briefly stated, are that one Ayodele Bakare drove his mother’s Mercedez Benz car by 6.30a.m. on 11th September, 1981, from Adeniyi Jones Street, Ikeja, to Anthony Village, to deliver a message to one Chief Lamikanra resident there. As he left the house, driving home alone in the car, his path was blocked by a Peugeot 504 saloon car. Some men from this car and others coming by foot from the nearby main road converged on him armed with cutlasses. They forced the door open and took possession of the Mercedez Benz car, abandoning the Peugeot 504 some of them emerged from, at the scene. He ran away into the nearby house of Dr. Beko Kuti from where he reported the event to his parents. A few hours after, in the afternoon, the police reported that the vehicle had been recovered at Badagry, where his parents and himself went and identified the car.

According to the prosecution, the three accused persons were arrested at Ajara Village, Badagry, between 9-10 a.m. when a motor mechanic invited by the 3rd accused was helping them change the tyre of the stolen car – Mercedez Benz. No. LA 6788K. They had been arrested by a Police Constable because the name of the owner of the vehicle given by the accused, on being queried by him, was different from the name on the vehicle’s particulars.

All the accused denied the charges against them. They were only victims of circumstances who had left their respective abodes to come to Ajara Village Badagry, where a policeman arrested them. While the 1st appellant testified that he left Okoya Ajegunle that morning to buy some planks, nails and other tools at Ajara village, and that it was at the place of purchase that he was arrested. The second appellant said that he left his Alaba residence, and traveled through Orile-Iganmu to Ajara Village, Badagry, to buy palm wine. He had bought the wine and was waiting for transport to convey him home when he was arrested. The third accused said he had a shed at the village and had gone looking for one Mr. Onyemoto P.W. 3 volunteered to take him to where he was if he waited for him. It was while he was waiting that he was arrested along with the other accused and about 5 others.

In his judgment, the trial High Court Judge considered the alibi relied on by the accused persons and held they had not been established. He believed the prosecution’s story about the snatching and recovery of the Mercedez Benz car. He held that since the accused had been found in recent possession of a stolen good, section 148(a) of the Evidence Act applied to raise the presumption that they were guilty of the theft of the car. He also relied on statements of the accused made after their arrests which he held were confessional, and duly corroborated by the evidence of P.W.1 and P.W.6. In his view, armed robbery as charged had not been proved because the weapon used had not been produced and tendered in court. Applying section 179(2) of the Criminal Procedure Law, he convicted the accused of robbery simpliciter. He also convicted them of the charge of conspiracy which he held could be inferred from the confessional statements and evidence led by the prosecution.

At the Court of Appeal, the procedure in conducting the trial within trial by the trial Judge was attacked. It was submitted that it was incurably bad, and therefore since the burden on the prosecution of proving that the statements made by the appellants to the police had not been discharged, the whole trial is a nullity. The Court of Appeal held that the conduct of a trial within a trial is not part of Nigerian Law and whether it was properly conducted or not made no difference to the trial. If however it is material, the wrong procedure used had not occasioned any injustice to the accused. Exhibit J, the 2nd appellant’s statement to the police, it held is not a confession, and has been wrongly so admitted by the trial Judge. There was really therefore no need to conduct a trial within trial. It therefore upheld the trial and conviction of the present appellants; but proceeded to set aside their conviction for robbery simpliter and substituting therefore, a conviction for armed robbery. It arrived at this decision because the reason for the trial Judge’s decision is obviously wrong and there is strong evidence in favour of a conviction for armed robbery.

In this Court, issues for determination were set out by the appellants in their briefs as follows:-

“(i) Whether there was sufficient evidence before the court to support the conviction and sentence for armed robbery in the absence of any direct identification of the appellants as two of the armed men who robbed P.W.1.

(ii) Whether the irregularity of the trial within trial resulting in the shifting of the onus of proof from the prosecution to the defence nullified the whole trial.

(iii) Whether Exhibit ‘J’ should be expunged from the records having been found not to be a confessional statement.