Kolade Olajide Fowosere V. The State (2016)

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BOLOUKUROMO MOSES UGO, J.C.A. 

 This appeal is against the judgment of the Ekiti State High Court of 13/03/2014 in Charge No HAD/26C/2012, delivered by O.I.O.Ogunyemi J., convicting and sentencing to death the appellant and his two co-accused persons of two counts of armed robbery, specifically of robbing Mrs Ojesanmi Olusayo (P.W.2) and another of Mr Mathias Ref Kumar (PW6), a third count of conspiracy to murder one Olusegun Olufowobi, and a 4th count of murder of the said Olusegun Olufowobi, a Police Corporal and husband of PW1, Mrs Sherifat Olufowobi. The appellant was the 1st accused person in the Information before the trial High Court, in which he was convicted of all four charges along with his 2nd co-accused person Owhorisi Blessing while the 3rd accused, Ogundare Ojo Peter, was acquitted of counts one and two but convicted of counts three and four.

The record shows that all the crimes – that is, the two robberies and the conspiracy to murder and actual murder – were committed in the month of July 2011 but on different dates and places. Whereas Count One of the Information charged the appellant and his co-accused persons with robbing while armed, Mrs Ojesanmi (a.k.a. Odesanmi) Olusayo, P.W.2, of her N84, 000.00, laptop, computer bag, two wrist watches and three handsets at Omisanjana Quarters in Ado-Ekiti on 4th July 2011, Count Two alleged that they robbed PW6, Mr Mathias Ref Kumar, of the sum of N19, 000.00 and two handsets six days later on 10th July 2011 at Ido-Ekiti, while in Counts Three and Four all three accused persons were charged with conspiracy to murder and actual murder of Olusegun Olufowobi on 20th July 2011 at Moferere Quarters in Ado-Ekiti.

The sequence of the crimes as presented by the prosecution in evidence is that the three accused persons on 4th July 2011, between 10.30 and 11.00 pm, while armed with a gun, robbed PW2 (Mrs Odesanmi Olusayo) a school teacher, at her home in Ekute, Ado-Ekiti and robbed her of the items earlier mentioned which, in the company of her husband, she promptly reported at Ekute police station.

On the 10th of July 2011, the same three-man gang, armed with axe, cutlass and gun and in half mask, again struck at Ido-Ekiti and successfully robbed PW6, Mr Mathias Ref Kumar, a nurse with the Federal Medical Centre (F.M.C.), Ido-Ekiti, of N19, 000.00, handsets, and ATM cards with which they successfully used to later withdraw monies from ATM machines. PW6 in fact testified that while his neighbour went to report the incident to the police, he looked for the robbers throughout the night and, on his way to work at about 5.25 a.m., saw one of the robbers, whom he later identified in evidence as the appellant (1st accused), wave his car down and asked for a lift to Ado but he told him (appellant) he was not going to Ado. That person, appellant, he said, wore the same clothes he was wearing during the robbery and was also holding a bag. He added that the robbers left behind in his house a polythene bag containing a T-Shirt.

Again, the same robbers, according to the prosecution, armed as usual with axe, cutlass and gun and masked, struck again in the night of 20th July 2011 at the home of the PW1 and her now deceased Police Corporal husband, Olusegun Olufowobi and fired gun shots at the deceased from which he later died that same night. Pw1 who was the first person they accosted in the robbery testified that her deceased husband also shot back at one of the robbers – later revealed as the second accused person, Mr Blessing Owhorisi – on his chest with his service rifle. Pw1 also testified that policemen later arrived at the scene and took her husband to the State hospital in Ado-Ekiti but it was on strike and could not even admit let alone treat him. She added that the gateman of the hospital nevertheless revealed to them that some men had earlier brought a man with a gunshot injury on his chest who they claimed was shot by a policeman and he referred them to the Federal Medical Centre, Ido. His description of the men, she claimed, matched the robbers that attacked her house that night and she openly said so. She added that, following the death of her husband later that same night, she made a formal report of the incident at Ologede Police station.

It was also the case of the prosecution that, following a response by the Osun State Police Command to alerts earlier placed by the Ekiti State Command of the Police concerning the killing of the Police Cpl Olufowobi by the three-man armed-robbery gang, with one carrying a gunshot chest wound, police officers at Ekiti State Command in the next morning traced the robbers (the appellant and his co-accused persons) to Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile-Ife, where the wounded robber Blessing Owhorisi was taking treatment for his injuries, and arrested all three of them.

The case was said to be first investigated at Ologede Divisional Police Station in Ekiti State by PW3, Police Corporal John Ebegbuma, before it was transferred to State Criminal Investigation Department (C.I.D.) of the Ekiti State Police command Headquarters, where it was again investigated and statements, including Exhibit E from the appellant, which all turned out to be confessional, were obtained from all three accused persons before they were charged to court. The confessional statement of the appellant, Exhibit E (wrongly described as Exhibit Q in the first line of page 68 of the records even as it is correctly marked as Exhibit E and so referred to in all other parts of the same record), was tendered along with those of his co-accused persons, Exhibits G & I.

In his said confessional statement, Exhibit E, the appellant is recorded to have said thus:

I am a native of Ayetoro Ekiti born to the family of Fowosere. My father Mr. Fowosere Folorunso now late was a (sic) educationist. He was the principal of Ekiti Parapo College Ido Ekiti (sic) after a brief illness. My mother Mrs. Fowosere Florence Oluwaseun is a teacher. She is now at A. U. D. Primary School, Ayetoro Ekiti. I started my primary School at Okeosahintolu Model High School where I spent only 4 years and because of my brilliance I was given opportunity I sat for WASC and NECO in 2002. In 2004 I gained admission into University of Ife or Obafemi Awolowo University to study medicine and Surgery. In 2009, I was in 200L due to strikes and problems in the school and I applied for transcript to MADONNA UNIVERSITY, Okija/Elele in Rivers to study the same course. Presently I am a student of Madonna University. I am studying Clinical Surgery in 2nd semester of 300L. I have left school since last month May 2011. I came home to collect money from my mother and after she has given me, I went to meet a friend Blessing. He is my childhood friend. We both attended the same Secondary school and departed in JSS III. In 2009, I came across Blessing at Osi, when I met Blessings mother and (drove) collected his number and later I called Blessing on his phone to meet me, at Osi. Then I was with a friend one Benson an herberlist (sic). I was with the herbalist for money ritual. The herbalist collected a lot of money about N2000,000 from me. I was taken into the bush for 2 day but money did not come. It was after then that I called Blessing and he came to Osi in the house of the herbalist. I narrated my ordeal to Blessing and he discouraged me about rituals. He then opine that if we get gone (sic), we will get money. I and Blessing decided to get a gun and we went to one of Blessings friend called Akin that he should borrow his gun to go and rob but Akin agreed and release to (sic) gun to Blessing (sic) but the gun was too long and we later returned it to Akin. I and Blessing were with Benson the herbalist in his house for three weeks. It is blessing that has belong to Kenneth group. He goes out in the night and comes back in the early houses about 4 am. He comes home with money and material things such as clippers, handsets and clothes. Blessing use to pack those loots to his girlfriend at Ondo. Even when we gang up and robbed Blessing do steal sets and give to his girlfriend one Falaye Sunkanmi. She is a student of Adeyemi College of Edu. I remember that I and blessing robbed one Deeper life Pastor at Usi, a doctor and a nurse at Ido Ekiti, one woman at Falegan Ekiti and the two of us raped the woman, we also robbed at Iworoko with one Afobaje who conveyed us to the scene of crime. I could also recollect the robbery of Moferere. On the 20th of July 2011 after we have failed our target at Moferere at about 8pm. Here in Ado Ekiti I, Blessing and Afobaje decided to go and strike in another house at Moferere. I was holding an axe, Blessing was carrying the gun and Afobaye was carrying only bag. We were passing by a house and found the kitchen door opened I moved closer and held the woman hostage with my axe. She saw us on time and had alerted the husband who was inside the parlour by shouting Ole! Ole!! Twice. She will know because the three of us were masked. At her side I stopped her and Blessing quickly rushed to the parlour while Afobaje was also with me at the entrance of the kitchen. We were at the kitchen when suddenly we heard a gunshot. I and Afobaje quickly left the woman and rushed out for our lives. We took cover inside the bush thinking that Blessing has been killed. Later we ran out of the bush and later heard Blessings voice shouting in agony for help. I and Afobaje rushed to him and found lying helplessly on the ground. He has bullet wound on the left side of his chest. Afobaje quickly went and called an Okada man who conveyed Blessing and I was holding him to Asumpta hospital who referred us to State Hospital. At State hospital they were on strike and adviced (sic) us to go Federal Medical Centre at Ido Ekiti. We met the police on patrol at Nova junction after the motorcycle has refuse (sic) to convey us to Ido FMC. I deceived the policemen by telling them that armed robbers shot Blessing at Moferere and they helped us in getting a commercial vehicle, whose passangers (sic) were thrown away and was persuaded to convey us to Ido FMC. The vehicle conveyed I, Blessing and Afobaje to FMC Ido that night and we were referred to Ile-Ife UTH. The vehicle agreed to to (sic) convey us and he did. The vehicle collected N8,000. It was blessing that requested that I call his wife i.e. Sunkanmi and I did call her. I told Sunkanmi that Blessing armed robbers shot him on okada (sic) but I told Sunkanmi on phone that Blessing went to rob and was shot. I dont know if Sunkanmi knows Blessing robs (sic) but Blessing hardly spent 3 days at Ado Ekiti. He lives with Sunkanmi at Ondo. (Emphasis mine)

It is noteworthy that even though counsel to the appellant raised objection to the admission of Exhibit E at the time it was tendered, it was not in any way related to the voluntariness of its making neither was it even remotely suggested that appellant made it under duress or some other such influence from the police, so Exhibit E was admitted without a trial within trial.

All three complainants testified for the prosecution in addition to two police officers – Police Corporals John Ebegbuma (P.W.3) of Ologede Police Station and Adetoro Adeniyi (P.W.4) of the State C.I.D. – that investigated the case. Other witnesses for the prosecution were the medical doctor, Dr Oluwafemi Joshua Taiwo (PW5) that conducted the post mortem examination on the corpse of the deceased policeman, and one Chukwudi Eze, alias Chisco, who was also initially arrested but later released. The appellant and his co-accused persons were all represented by counsel who cross-examined the prosecution witnesses.

In their defence, the appellant and his co-accused persons individually denied complicity in any of the crimes attributed to them. The appellant in particular claimed he did not kill the deceased Mr Olufowobi; he said the day Mr Olufowobi was shot he (appellant) was watching television with his sister, whose name he did not disclose. He admitted he was arrested by the police at Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile-Ife along with his co-accused in the course of investigation of these cases but claimed his co-accused were just his church members and he was just preparing to return to his school, Madonna University, when somebody who claimed he saw his number saved as My Doctor in 2nd accuseds (Mr Blessing Owhorisis) handset called him to inform him that Blessing was a victim of gunshot injury, whereupon he immediately rushed to a Mathew Junction, Ado-Ekiti where he met him lying pathetically. With the aid of sympathizers, he further claimed, he rushed Blessing to Ologede Police station where the Divisional Police Officer (D.P.O.) whose name he gave as Idowu Salami immediately mobilized his junior colleague to take him and the stricken Blessing to Federal Medical Centre (F.M.C.), Ido-Ekiti, from where, upon being informed that there was no cardiologist to attend to them, D.P.O. Salami again directed them to proceed to Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile Ife, where Blessing was admitted. It was on the 4th day after Blessings admission at Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile Ife, while he, appellant, was on his way back to school and decided to visit him, he claimed, that he was arrested by the police on the allegation that he was involved in these series of crimes. He claimed to have denied complicity in the offences, adding that he was upon his arrest first taken to Ologede police station where he made a voluntary statement and there was nothing like confessional statement. He stated that if the prosecution had called the Ologede D.P.O., Supol. Idowu Salami, he would have elucidated the case.™

As mentioned above, appellants co-accused persons, Blessing Owhorisi and Ogundare Peter Ojo, both of whom had mentioned the appellant as one of their gang that committed all the crimes in issue, also retracted their statements at the trial and, like appellant, claimed complete innocence.