Adetokunbo Ogunlana & Ors V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

The appellants, Adetokunbo Ogunlana, Segun Adebayo Onile, Kayode Bakare and Caroline M. Ogunlana along with four others were arraigned on the 12th day of January, 1987 before the High Court of Lagos State, holden at Ikeja on a two count information. They were charged in count one with conspiracy to commit felony, to wit, stealing contrary to section 516 of the Criminal Code, Cap. 31, Laws of Lagos State of Nigeria, 1973 and in count two with stealing 649,000 Champion Sparkling Plugs Model N.97, valued at N1,998,920.00 property of Alhaji Yinusa Saliu Layeni contrary to section 390(9) of the Criminal Code. Each of them pleaded not guilty to both counts and was released on bail.

The prosecution called twelve witnesses at the trial. In the course of the trial, the 5th accused person, Samuel Olaiya Awolaja jumped bail. The case against him was consequently withdrawn and he was discharged but not on the merits.

The remaining seven accused persons testified on their own behalf and called witnesses. The learned trial Judge also visited the locus in quo which was numbers 140 and 142 Ojuelegba Road Surulere.

The substance of the case as presented by the prosecution is that on the 26th March, 1986, the complainant, one Alhaji Layeni who is P.W. 1 in this case together with his storekeeper, P.W. 2 went to his warehouse at No. 142 Ojuelegba Road, Surulere where he had stored three container Roads of Champion Sparkling Plugs. On getting to the warehouse, they discovered to their amazement that a large quantity of the said Sparkling Plugs valued N1,998,920.00 property of P. W. 1, had been stolen by unknown persons.

On close inspection, they noticed that there was an opening of the ceiling which extended to the roof of the warehouse. This prompted them with some sympathisers to visit the adjacent building, known as No. 140 Ojuelegba Road. Surulere which was the residence of the 1st, 3rd, 7th and 8th accused persons.

At the latter premises, they saw a ladder Exhibit H placed on the wall there and noticed that those who gained entrance into the warehouse had done so by removing some of the roofing materials at 142 Ojuelegba road, Surulere. Exhibits J and J1, some Champion Sparkling Plugs parkings, were also found in the compound at No. 140 Ojuelegba road, Surulere. As a result of this discovery a report was made to the Police who after their investigations arrested all the accused persons and arraigned them before the court as aforesaid.

I think it ought to be noted that both P.W. 3 and P.W. 4, Theresa Onafuwa and Remi Onwufuju respectively were at all material times at one time or the other girl friends of the 1st accused person. They had cohabited severally with him as husband and wife at the said 140 Ojuelegba road, Surulere at various times material to the commission of the offences charged. P.W. 3 testified that she ended the relationship between the 1st accused and herself when she discovered that the 1st accused with the other accused persons were stealing the champion sparkling plugs of P.W.1 from the warehouse. She gave details of the roles the other accused persons played along with the 1st accused in stealing the plugs of P.W. 1. Her relationship with the 1st accused ended late in November, 1985 when she saw him stealing the plugs with the other accused persons and advised him to desist from doing so.

Following this advice, the 1st accused grew annoyed and threw her out of the house.

P.W.4 also gave evidence which in many ways incriminated the accused persons with the commission of the offences charged. All the accused persons testified in their own defence and called seven other witnesses. Theirs was a total denial of the charge.

The learned trial Judge, Oshodi, J., after an exhaustive review of the evidence on the 4th August, 1989 found each and every one of the seven accused persons guilty of the offences charged. The 1st, 2nd, 3rd, 4th and 6th accused persons were sentenced to 7 years imprisonment on each count and the 7th and 8th accused persons were sentenced to 5 years imprisonment on each count with hard labour, sentences to run concurrently. The court further made forfeiture and/or restitution orders in respect of some of the properties of the accused persons.

Dissatisfied with this judgment of the trial court, the accused persons appealed to the Court of Appeal, Lagos Division against the said convictions and sentences. On the 18th December, 1991, the Court of Appeal affirmed the convictions and sentences of the 1st, 2nd, 3rd, 4th, 6th and 7th accused persons whilst the appeal of the 8th accused person was allowed and his convictions and sentences were set aside. The court also set aside all the orders of the trial court in respect of the forfeiture of the properties. It is against this judgment of the court below that the 1st, 2nd, 6th and 7th accused persons, hereinafter referred to as the 1st, 2nd, 3rd and 4th appellants respectively, have now appealed to this court.

Both the appellants and the respondent filed and exchanged their respective written briefs of argument. In the 1st and 4th appellants’ brief, the undermentioned issues were formulated for resolution, namely-:

1. Whether on the facts of this case, the court below is not in error when it upheld the decision of the trial court that P.W. 3 and P.W. 4 were not accomplices in the offence charged or at least tainted witnesses and whether the failure of the trial Judge so to hold and to remind himself of the need for caution in regard to their evidence did not occasion a miscarriage of Justice.
2. Whether the court below was right to have upheld the conviction of the 1st and 4th appellants bearing in mind the evidence led before the trial court.

The 2nd and 3rd appellants, on the other hand, identified three issues in their written brief of argument for the determination of this court. These are as follows:-