Kayode Babarinde & Ors V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellants were charged before the High Court of Kwara State, Ilorin Division on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 97 of the Penal Code and Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap. R 11 Laws of the Federation of Nigeria (LFN) 2004 respectively. They were alleged to have robbed one Mrs. Ruth Alabi of the sum of N50,000 while armed with a locally made pistol on 18/8/2007 at Baba Oloya Street, Jebba, within the jurisdiction of the court. Each of the accused persons pleaded not guilty to each count of the charge. The prosecution called three witnesses and tendered exhibits while the appellants each testified on their own behalf and called no other witness. At the conclusion of the trial, the High Court on 26/9/09 found each of the accused persons guilty as charged on each of the counts. They were sentenced to two years imprisonment on the count of conspiracy and death by hanging on the count of armed robbery.

Being dissatisfied with their conviction and sentence they appealed to the Court of Appeal, Ilorin Division by their notice of appeal dated 12/5/2010. The Court of Appeal dismissed the appeal on 23/2/2012 and upheld the conviction and sentence passed on them by the trial court. They appealed to this court vide their original notice of appeal dated 23/3/2012. Subsequently they sought and obtained leave to file their Amended Notice of Appeal dated 26/7/2012, which was deemed filed on 4/7/2013.

The 1st appellant’s brief was settled by M. J. ONIGBANJO, ESQ. It was filed on 27/7/2012.The following two issues were formulated for the determination of this appeal:

1. Whether the bias demonstrated by the trial court against the 1st Appellant and his co-accused persons ought to have vitiated the entire trial (Grounds 1 & 2)
2. Whether the offences of criminal conspiracy and armed robbery were proved beyond reasonable doubt before the trial court (Grounds 3, 4 and 5)

The 2nd and 3rd appellants’ brief of argument was settled by OLUMUYIWA AKINBORO ESQ. In the said brief filed on 30/10/2012 four issues were formulated thus:

1. Whether the statement of the learned trial Judge during the entire proceedings against the 2nd and 3rd appellants did not conclusively present the state of mind of the learned trial Judge towards the accused and thereby exhibiting bias against them and amounting to denial of fair hearing, which ought to have persuaded the learned Justices of the Court of Appeal as vitiating the entire trial. (Grounds 1 & 2)
2. Whether the learned Justices of the Court of Appeal having found that Exhibits 4, 5 and 6 the confessional statements were wrongly admitted and that it was wrong for the trial court to have convicted the accused persons based on them ought not to have discharged and acquitted the 2nd and 3rd appellants. (Ground 3)
3. Whether the evidence of PW3 was not hearsay evidence on the issue of Exhibit 2. (Ground 5)
4. Whether the offences of criminal conspiracy and armed robbery against the 2nd and 3rd appellants were proved beyond reasonable doubt before the trial court. (Ground 6)

The respondent’s brief filed on 21/11/13 but deemed filed on 4/7/2013 was settled by KAMALDEEN AJIBADE ESQ., the Attorney General of Kwara state. He formulated two issues for determination to wit:

1. Whether the inadmissibility of Exhibits 4, 5 and 6 (Confessional statements of the appellants) was enough to vitiate the whole trial. (Grounds 1, 2 and 3)
2. Whether the Court of Appeal was right to have held that the prosecution proved the offences of Criminal Conspiracy and Armed Robbery against the appellants beyond reasonable doubt. (Grounds 4, 5 and 6)

At the hearing of the appeal on 3/10/2013 learned counsel for the parties adopted and relied on their respective briefs of argument. Learned counsel for the appellants urged the court to resolve the appeal in their clients’ favour, while learned counsel for the respondent urged the court to dismiss it.

Having carefully examined all the issues formulated by the parties I am of the view that the following three issues are the issues that call for resolution in this appeal:

1. Whether the alleged bias against the appellants by the learned trial Judge in the course of the trial within trial ought to have vitiated the entire trial (1st appellant’s and 2nd & 3rd appellants’ Issue 1).
2. Whether the appellants ought to have been discharged and acquitted upon the finding of the Court of Appeal that Exhibits 4, 5 and 6 were wrongly admitted in evidence. (2nd & 3rd appellants’ issue 2 and respondent’s issue 1).
3. Whether the offences of conspiracy and armed robbery were proved against the appellants beyond reasonable doubt (1st appellant’s issue 2, 2nd & 3rd appellants’ issues 3 & 4 and Respondent’s issue 2).

The appeal shall be determined on these three issues.

Issue 1

Whether the alleged bias against the appellants by the learned trial Judge in the course of the trial within trial ought to have vitiated the entire trial

In support of this issue, learned counsel for the 1st appellant referred to page 70 of the record where in the course of ruling on the trial within trial to ascertain the voluntariness or otherwise of the alleged confessional statements of the accused persons the learned trial Judge made the following remarks:

“The accused persons in their tutured (sic) position of wandering around their adhered style of telling lies in a desultory fashion…”

“What could be observed on the 3rd accused (DW2) is an improved style of telling lies to block some loop holes created by his comrade in crime”.