Femi Afolabi V. The State (2016)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A.

 This is an appeal against the judgment of Hon. Justice I. O. Adeleke of the High Court of Justice, Osun State sitting at Ikirun delivered on 27th June, 2013.The Appellant was one of the five (5) accused persons arraigned before the High Court of Osun State at Ikirun for the offences of conspiracy, to commit Armed Robbery and Armed Robbery contrary to Section 6 (B) and 1 (2) (a) and (b) respectively of the Robbery and Firearms Act, Cap R-11 Laws of the Federation of Nigeria 2004. The charges were read over and explained to the Appellant and the other accused persons. They pleaded not guilty to each count of the charge.

The prosecution called six (6) witnesses including the Investigating Police Officer and tendered the statements of the Appellant and the other accused persons. The Appellant and the other accused persons gave evidence in defence but called no witnesses.

The case of the prosecution is that on 13th March, 2006, a gang of Armed Robbers armed with dangerous weapon including guns and cutlasses invaded and robbed a new site at Obagun via Ikirun, the robbers fired shots at and wounded some

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vigilante men who pursued them. The Appellant was arrested and he named the other members of the gang which led to their arrest.

None of the prosecution witnesses was able to identify the Appellant or any of the other accused persons as a perpetrator of the crime on the day of the incident. The learned trial Judge however, based essentially on the purported confessional statements convicted the Appellant and the other accused persons as charged.

Dissatisfied with the judgment, the Appellant, at first filed a Notice Appeal containing four grounds of appeal on 11/7/2013. And later filed Amended Notice of Appeal on 1/4/2015.

The Appellant’s grounds of appeal together with their particulars contained in the Amended Notice of Appeal are as follows:-
GROUNDS OF APPEAL:
GROUND ONE: ERROR OF LAW
1. The Learned trial Judge erred in law when he relied on the evidence of prosecution witnesses to convict the 5th Accused/Appellant.
PARTICULARS
(i) All the purported eye witnesses called by the prosecution i.e. PW1, PW2, PW3, PW4 and PW5 both in their statements to the Police as contained in the proof of evidence, their evidence in chief and under cross-examination said they could

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not identify any of those who participated in the alleged armed robbery if seen.
(ii) The prosecution witness infact maintained in the witness box that they could not identify any of the accused persons including the 5th Accused/Appellant herein as part of the robbery gang.
(iii) The learned trial Judge however in his judgment while reviewing both the evidence in chief and under cross examination of PW1 said:
“He stated further that he did not know any of the accused persons in the dock but that the robbers did not cover their faces. Under cross-examination by Learned Counsel for the 1st, 3rd and 5th Accused, he said that he did not know any of the accused in the dock and identify them as being responsible for robbery attack at his house, He maintained that the said Armed Robbers did not cover their faces”. (underlining ours for emphasis).
(iv) The underline portion of the above quoted trial Judge’s judgment did not form paft of the evidence given by PW1.
(v) The Judgment was therefore perverse as the trial Judge deliberately imported what is not on record into his judgment so as to convict the 5th Accused/Appellant at all cost.
GROUND TWO: ERROR OF LAW
2. The Learned

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trial Judge erred in Law when, despite the Counsel’s and Accused’s Objection to the admissibility of Exhibit E, (i.e. 5th Accused/Appellant’s Statement) on the ground that the said statement was obtained under duress, he failed to conduct trial within trial before admitting the said statement in evidence as required by Law.
PARTICULARS
(i) When the Prosecuting State Counsel sought to tender the statement of the 5th Accused/Appellant in evidence, the trial Judge hurriedly admitted it without allowing the 1st Accused/Appellant (the alleged Maker of the Statement) or his Counsel to see the statement.
(ii) Even, when the Counsel raised objection, the trial Judge deliberately and perversely failed or refused to record the objection during trial.
(iii) However, since the truth and facts of the objection raised by Counsel was in the mind and sub-conscience (sic) of the learned trial Judge, he himself admitted in his judgment that the defence Counsel raised objection to the admissibility of the statement on ground that it was obtained by duress when he held as follows:
“The defence also objected to the tendering of the confessional statements made by the accused persons

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