Adebowale Ajao V. The State (1984) LLJR-SC

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.

(3) That the accused ran into the nearby bush and hid himself and was brought out and handed over to a team of police Highway Patrolmen, headed by 5th P.W.

(4) The Court believed the evidence of 1st and 2nd p.ws. as to the circumstance of how they were robbed of the Toyota Crown car OD.4347 D. The gang drove in Toyota Corolla car bearing registration No. OD.—K.

(5) That the wrecked Toyota Crown car No. OD. 4347 D belonging to 1st P.w. was seen some distance on the same road in which the ‘Molue’ bus was involved in the accident.

(6) The two inconsistent accounts of how or why appellant escaped into the bush immediately after the accident.

(7) The evidence of the 4th and 5th PWs.

Mr. Agbaje has not been able to persuade me that the trial judge erred in his appraisal of the evidence as to justify the Court of Appeal interfering with the decision. I have not in this Court been persuaded that any of the alleged inconsistencies or contradictions really exist, or if at all they in fact exist, are of any material importance. I am satisfied that the evidence of the 4th P.w. was direct on the point that the appellant was at the rear of a gang of six persons pursued soon after the robbery of 1st ‘P.w.’s car along the Lagos/Abeokuta road following another robbery attempt on the same road by the same gang of robbers operating in a Toyota Corolla car OD.—K. It is inconceivable how the appellant could have been fished out from the bush if he was not seen running into the bush by the 4th P.w. or any or the persons who caught him. I agree with the trial judge there was sufficient evidence to link him with the robbery by the gang in the Toyota car.

All the arguments advanced in this appeal, are those relating to facts which the trial judge found. In my view, his decision was reasonable and amply supported by the evidence before him. Therefore, I see no reason to disturb his decision and that of the Court of Appeal which affirmed it and dismissed the appeal against it. It was for the above reasons that I dismissed the appeal and affirmed the conviction and sentence.

BELLO, J.S.C.: The appeal was canvassed on concurrent findings of facts only which have been fully considered in the reasons for judgment delivered by the learned brother, Coker J.S.C. I adopt his reasons for dismissing the appeal.

NNAMANI, J.S.C.: I have had the advantage of reading in draft the reasons for judgment just read by my learned brother Coker, J.S.C. I agree with his reasoning and conclusions. It was for these same reasons that I too dismissed the appellant’s appeal on 20th September, 1984.

I entertain no doubt that the appellant was in the company of those who robbed prosecution witness 1 of his Toyota Corolla car on that fateful day, 15th November, 1979 nor do I entertain any doubt that he was one of the armed-robbers seen running away from the scene of the accident between the Toyota car previously snatched and a Danfo bus. The appellant having failed to escape with his confederates, ran into the bush where he was apprehended by prosecution witness and duly handed over to the police. His defence which consisted of a plea that he was a victim of armed robbery was no more than a tissue of lies.

KAZEEM, J.S.C.: This appeal was dismissed by me on 20th September, 1984 when I said that I will give my reasons for doing so later. But I have had the privilege of reading the draft of the reasons for judgment just delivered by my learned brother, Coker, J.S.C. It has fully considered and dealt with all the issues involved in the appeal which were canvassed before us. I entirely agree with the conclusions reached therein and have nothing to add.

KARIBI-WHYTE, J.S.C.: This appeal was argued on the 20th September, 1984. Mr. Y. A. Agbaje appeared for the appellant, and Mr. Bello, Principal State counsel, Ogun State for the respondent. Counsel for the appellants and respondent respectively relying on their briefs of argument in their elaboration of argument in the briefs in oral arguments before us urged us to allow the appeal and quash the conviction, and dismiss the appeal and affirm the conviction. I dismissed the appeal and said that I shall give my reasons for doing so today. I now give the reasons.

On the 12th January 1981, appellant who claimed to be an electrical engineer of No. 47 Carter Street, Ebute Metta was charged with the offence of armed robbery punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, 1970. The prosecution called six witnesses. The appellant gave sworn evidence and did not call any witness.

On the 21/4/81, the learned trial judge convicted appellant as charged. Appellant’s appeal to the Court of Appeal, Division at Ibadan, was dismissed by a unanimous court on the 24th May, 1983. He has now come to this Court. The facts of the case are clearly brought out in the judgment of the learned trial judge. Summarily stated, on the 15th November, 1979, there were reported at least two cases of robbery with arms, and using saloon cars in the process on the Lagos Abeokuta Road near Wasimi. The incident in which the appellant was convicted was that which linked PW1 and PW2 as eye-witnesses.

The evidence before the trial judge was that on the 15th November, 1979, PW1 and PW2, were travelling towards the direction of Abeokuta from Lagos in their Toyota Crown saloon car No.OD.4347 D. Whilst in motion and on the highway another Toyota Corolla car with an unidentified ‘OD K’ registration number overtook their car, brushed it by the side, passed it and stopped in front of their car, forcing their car to a halt. Some men 15 (about 6) alighted from this other car with cutlasses in hand and forced PW2 to surrender the key of the car and he and PW1 to surrender whatever valuables they had on them. PW1 escaped into the nearby bush and was chased by some of the assailants. PW2 suffered some matchet cuts but managed to escape from the assailants.

After an unsuccessful chase, all the assailants returned, some into the car of PW1 and PW2 and others in their own car and drove towards Lagos. PW1 and PW2 later came out from the bush and were offered transportation by a passing car on the highway. Whilst they were going towards the direction of Lagos, PW1 and PW2 observed that the Toyota Corolla car which stopped them and from which the robbers came out to attack them had turned again towards the direction of Abeokuta. Their car now gave chase to this car. Soon after, the car snatched from PW1 and PW2 was involved in an accident with a passenger bus. The evidence of PW4 which links appellant with the commission of the offence is as follows:-

“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 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 35 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 matchet as he ran)”.

The defence of the appellant was a total denial – an alibi. His case was that he too was a victim of an armed robbery attack. He said that he ran into the bush for safety and with the assistance of a good Samaritan in the bush, he came into the highway, where he was picked up by PW5. Mr. Agbaje for the appellant filed seven grounds of appeal. He relied on his brief.

The grounds of appeal filed relate to:

(a) Contradictions and inconsistencies in the evidence of the prosecution witnesses, in grounds 1, 2, 3.

(b) The question of the identification of the appellant.

(c) The burden of proof on the prosecution, in grounds, 4, 5, 6 and 7. I do not consider it necessary to reproduce the grounds of appeal.

I shall now consider each group in the manner the argument was presented. Mr. Agbaje referred to the evidence in court of the PW4 and his unsworn statement to the police, and submitted that there were material contradictions because the latter did not contain some of the material evidence given in court. It was his contention that where evidence at the trial is at variance with the proof of evidence served on the accused, the court should be slow to accept the version of the evidence in court, and in fact it should not be given any weight. He cited Agwu & Ors. v. The State (1965) NMLR. 18, 20. Joshua v. The State (1964) 1 All NLR. 1 at p. 3. It was submitted that the evidence of PW4 so heavily relied upon should have been treated as unreliable. Counsel listed a catalogue of eleven inconsistencies which the learned trial judge ought to have considered.

On a careful reading of the evidence of PW4 in court, and his alleged statement to the police, it is clear that there are no material contradictions or conflicts to cast any doubt on the credibility of the evidence in court. As was pointed out by Mr. Bello for the respondent in his brief, and explained by PW4 in his evidence on cross-examination, the evidence in court was merely a more detailed version of his statement to the police. The explanation required in Agwu v. The State (supra) was made. Besides, the issue is one of credibility in respect of which the trial court is the best and undisputed judge – See Nasamu v. The State (1979) 6 – 9. S.C. 153 30 at pp. 161. The learned trial judge accepted the evidence, believed PW4 and acted on it. The same reasons stand for the acceptance of the evidence of PW5. I see no irregularity in the learned trial judge believing these witnesses.

It is undoubtedly correct that PW4 did not say in his statement to the police that he saw about six men running in a bid to escape. He stated that he saw the accused running, and people pointing at him and shouting ‘thief’, ‘thief’ and that he eventually ran across the rail line into the bush where he was caught and handed over to PW5. Appellant corroborating PW4, admitted he ran into the bush across the railway line from where he was apprehended and handed over to PW5 who identified PW4 as one of those who caught appellant and handed him to PW5. The fact that PW4 arrested appellant and handed him to PW5, the denial of this fact by appellant, his false story of injury to his head, and unsubstantiated story of his journey to Abeokuta to meet his brother Folorunsho who was recovering from illness were cogent justification for the learned trial judge believing and accepting the evidence of PW4 and PW5, as to the identification of appellant as the person arrested as one of the armed robbers.

With respect to the alleged contradiction regarding the matchet which appellant was holding at the time of his apprehension, PW5’s explanation was that he did not see or recover any cutlass from the appellant. His evidence was that the cutlass was handed over to him by those who apprehended the appellant from the bush, and that both appellant and cutlass were handed over to him at the same time. This explanation was in the circumstance accepted as satisfactory by the learned trial judge. There is no doubt that on the facts before him, he was right in doing so.

This leads to the consideration of grounds 4, Sand 6, which relate to the burden of proof on the prosecution. Mr. Agbaje’s contention is that since the conviction of appellant rests entirely on the evidence of PW4 and PW5, which cannot be relied upon because of the inconsistencies therein and that it is unsatisfactory, there is no other evidence to link appellant with the commission of the offence. This is misreading of the judgment and the net effect of clear findings of fact by the learned judge.

It is admitted that to sustain a conviction under s.1(2) (a) of the Act, the prosecution must prove that there was a robbery, and appellant was the robber or one of them. It must also be proved that the robbery was with arms. All these must be proved beyond reasonable doubt. There is here evidence that there was robbery of PW1 and PW2 of their Toyota Crown car with arms. Appellant was identified as one of those trying to escape after the accident with the Molue bus. There was evidence also that those who robbed PW1 and PW2 drove away in the stolen Toyota Crown car and were seen to be running away after the accident with the Molue bus. There is therefore an unmistakeable nexus between the stolen Toyota car and the accident with the Molue bus, and with those running away after the accident. Appellant was one of those seen running away and was caught after a hot pursuit. The evidence led did not leave the learned trial judge in any doubt, as he said, at p.86 lines 3 – 6

“But he was identified as one of those running away to escape after the robbery and he was running away into bush with machet in his hands …”

The acceptance of this evidence strongly negates the possibility of any alibi in favour of the appellant. Appellant was sufficiently identified, and indeed was apprehended before he could disappear completely from view. He was caught in flagrante delicto. Section 1(2) (a) of the Decree puts beyond doubt the liability of the appellant. This section renders liable any person whether he is armed with any offensive weapon or is in company with any other person so armed. Appellant was found to be such a person. At the least, he was found to be in company of a person who committed armed robbery. Finally, and this is the seventh ground of appeal which complains that the learned trial judge did not evaluate the evidence with the careful scrutiny it deserves. This ground of appeal lacks merit. If anything, the learned trial judge inundated the judgment with avoidable details. It is obvious that the trial judge after carefully examining the evidence in its entirety came to the conclusion that “Appellant was one of the member (sic) of six persons 35 who robbed the 1st PW of the Toyota.” In arriving at this conclusion he considered inter alia, the following facts:-

(a) Appellant was on the Lagos/Abeokuta Road on the 15/11/79 and at the time of the robbery.

(b) The prosecution evidence that a gang of robbers armed with cutlasses was operating on the road on the day in question.

(c) Appellant was identified running away from the scene of the accident between the Molue bus and Toyota Corolla car.

(d) Appellant was seen running into the bush and was followed by PW4 and 45 others who caught him in the bush.

(e) The court believed the evidence of PW4 who handed appellant to PW5 on his arrest, and that appellant and the cutlass he was carrying when arrested was given to PW5.

(f) PW1 and PW2 gave evidence of how they were robbed of their Toyota 50 Crown car No. OD.4347 D.

(g) The wrecked Toyota Crown No.OD.4347 D owned by and robbed from PW1 and PW2 was seen some distance from the Molue bus.

(h) The court examined the evidence of appellant, his story of why he escaped into the bush and his reasons for going to Abeokuta that day.

Consideration of all these factors assisted the learned trial judge to come to the conclusion which he did. There is conclusive evidence before the learned trial judge to link the appellant with the offence charged. All the findings of fact are reasonable and sufficiently supported by the evidence. The findings of fact have been accepted by the Court of Appeal, which has affirmed and dismissed the appeal against the findings of the learned trial judge. It is for the same reasons that I have dismissed the appeal and affirmed the conviction and sentence.

Appeal dismissed.

SC.75/1983