Clement Patrick V. The State (2009)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

In the High Court of Ogun State, Abeokuta Judicial Division, the Appellant was charged with conspiracy to commit armed robbery and two counts of armed robbery contrary to Sections (1) and 1(2)(a) of the Robbery and Firearms (special provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990. The Appellant pleaded not guilty to the charges. The two counts of armed robbery alleged that the Appellant and others at large on or about the 15th day of October, 2001 at Oyeyemi Cottage near Greenland Hostel, Onikolobo in the Abeokuta Judicial Division while armed with firearms, to with a gun, robbed Mrs. Mojisola Olutoyin Akiode of the sum of N8,000.00 and Mr. Olu Akiode of the sum of N7,500.00 and a household toaster valued N2,500.00. The charge dated 21st June, 2002 is at pages 2 and 3 of the records.

Out of the six witnesses listed for the prosecution, three (3) testified, that is Mr. Olu Akiode, Mrs. Mojisola Oluwatoyin Akiode and Sergeant Titus Ogbonna who testified as PW1, PW2 and PW3 respectively.

The Appellant called two witnesses, DW1 and DW2 and testified as DW3.

The PW1 and PW2 in their evidence testified that they identified the Appellant by his voice and dress, as one of the three robbers that came to their house the night of the incident.

DW1 and DW2 gave evidence in favour of the alibi set up by the Appellant that he was at his beat as a Security guard at the head office of Casagrande Nigeria Limited when the alleged robbery took place. DW2 was a Security guard who claimed to be on the same beat with the Appellant on the night of 14th/15th October, 2001, while DW1 is the Appellant’s employer.

At the end of the trial the learned judge Ayobode Lokulo-Sodipe, J. (as he then was) in a considered judgment on 11th May, 2004 convicted the Appellant on the three counts and sentenced him to death by hanging. The Appellant was dissatisfied with the learned trial judge’s conclusion upon evaluation of the facts before the court, originally filed a Notice of Appeal with a sole ground complaining that the judgment is against the weight of evidence, the Notice of Appeal was filed on 28th May, 2004 and by the order of court on application, amended the Notice

filed on 30th October, 2007, on 27th February, 2008, containing two grounds of Appeal. From the two grounds of Appeal in the amended Notice of Appeal, two issues were formulated for determination as follows:

“1. Considering the totality of the evidence before the learned trial Judge, can it be said that the prosecution proved the charges against the Appellant beyond reasonable doubt?

2. Is the judgment of the learned trial Judge against the weight of evidence?”

When the appeal was argued, the learned counsel to the Appellant J. A. Badejo Esq., adopted and relied on his Brief of Argument filed on 30th October, 2007, regularised on 27th February, 2008 and reply brief dated and filed on 15th September, 2008.

In arguing the appeal, the learned counsel submitted that his first issue involves a consideration of the principles governing a court faced with conflicting evidence of prosecution witnesses as to the identity of the accused now appellant on one hand and alibi set up by the accused on the other. While the second issue over laps the first issue in every aspect, as a result, learned counsel argued the two issues together.

It was submitted that the learned trial judge considered the prosecution’s case and the defence of alibi separately and that no attempt was made to consider the totality of the evidence holistically by relating them to each other and then determine whether there are reasonable doubts in the circumstances of this case.

Further, that the learned trial judge did not consider at all, certain weaknesses in the prosecution’s case and ought to have weighed the evidence of the prosecution with the evidence of alibi adduced and consider the entire evidence together in other to arrive at a balanced decision or whether reasonable doubt had been created in favour of the Appellant.

It was submitted that the learned trial judge did not consider the sequence of events and the process of identification of the Appellant as given by PW1, Olu Akiode and PW2,(Mrs. Akiode) at pages 11 and 12 of the printed records and pages 14 to 16 respectively. It was submitted that the PW2 relayed a sequence different from PW1, for instance that the three men ordered PW2 to shut up when they entered their room and did not relay any conversation with the robbers before he was identified by one of them and tied. It was after he, PW1 was tied up that he reported a conversation he had with the short fair complexioned robber who was said to have had a rifle, the account given by the PW1 and PW2 differed. While PW1 stated that it was the accused/appellant that searched the wardrobe, the PW2 did not categorically say so, but stated that the men commenced their search and stole money and toaster, page 15 of the printed records. It was submitted that while PW2 claimed that after stealing the items, two of the robbers left the room while the third man with a gun remained at the door, page 15 of the records, the PW1 said it was after the two had withdrawn from the room that the toaster was stolen by the 3rd robber with a gun. Further that the PW1 stated that the Appellant and one other robber went into other rooms but did not say if they encountered the children there or removed anything and that one Remilekun Olayinka Akiode listed as witness NO.3 was never called as a witness.