Gabriel Ewharieme & Ors. V. The State (1985)

LawGlobal-Hub Lead Judgment Report

B. O. KAZEEM, J.S.C.

In this appeal, the Appellants were all tried and convicted for Armed Robbery by Adio J under Sec.1(2)(a) of the Robbery and Firemarms (Special Provisions) Act No.47 of 1970 as amended by Act. No. 8 of 1974. They were all sentenced to death, and their appeal to the Court of Appeal in Ibadan was equally dismissed. They have now further appealed to this Court.

The facts which led to the conviction are straightforward. The Appellants were in a gang of robbers who, armed with guns, invaded the premises of Faseru Motors, Ilesa in the early hours of 23rd November, 1981 in order to steal therein. One of them shot one Moses Adaramoye a night-watchman (P.W.1), with a gun ofter he failed to give them the keys to the office and the gate in the premises. He was shot in the stomach, his chest and side but he was immediately able to recognise one of the robbers as having a deformed leg. That person turned out to be the 2nd Appellant. Later at an identification parade held on 2nd February, 1982, the witness identified all the four Appellants as among the robbers. The robbers also attacked another night guard one Joseph Orubuleye (P.W.2), and shot him near his eye and the bullet came out of his cheek and went through his shoulder.

He was left unconscious in his pool of blood. He was not able to recognise any of the robbers. In their escapade the robbers also attacked and shot with a gun a gardner one Balubi Jubrila (P.W.4), who slept in the premises that night. Eventually, the robbers succeeded in breaking into the office of the Spare-parts Manager, Mr. Ayeni Olaniyi (P.W.6) from where they stole a sum of N109 which was the proceeds of sale for Saturday the 21st November, 1981. The theft was later discovered by P.W.6 when he got to his office the following Monday, the 23rd November, 1981.

However, the matter was then reported to the police who commenced investigation. The four Appellants were later arrested on 1st December, 1981 at a meeting held in a hotel while they were planning another robbery operation for Adamog Construction Company Ilesa. Inside the Peugeot Car No. BD 9296 BA belonging to the 2nd Appellant, which was brought by the Appellants to the meeting, the Police found several types of guns with live ammunitions, a sharpened matchet, some serviceable touch lights, a big hammer, some charms, two bags containing dark clothes and masks.

At the trial, the Appellants denied the charges, and put up several defences namely:

(a) that the identification parade carried out on the 2nd February, 1982 at which P.W.1 identified all the Appellants, was improperly conducted. The reasons ascribed for this was that it was held in suspicious circumstances because a Daily Times Newspaper published on 15th December, 1981 Exhibit about the Press Conference held by the commissioner of Police, Ibadan on the armed robbery operations in Oyo State contained the pictures of the Appellants who were shown to the public as being among those armed robbers; and that there was a possibility that P.W.1 who identified the Appellants had previously seen those pictures in the newspaper that has been in circulation in the State.

(b) that there was contradiction between the testimony of P.W.1 and P.W. 9 because P.W.1 said that ofter he was shot by the Appellants he later went to report the incident at the Police Station whereas P.W.9 said that he saw him among the victims of the robbery when he visited the scene ofter the report. And that there was a discrepancy between the evidence of P.W.2 at the trial and his statement to the Police – Exh.A in that P.W.2 said at the trial that he could not recognise the Appellants because his sight was blurred by the blood from his wounds when he was shot, whereas in Exh.A, he said it was because the Appellants were masked.

(c) that the 2nd Appellant particularly, put up an Alibi which was supported by his brother D.W.3 that at the material time when the robber was committed at Ilesa in the early hours of 23/11/81. He was visiting his brother at Osogbo where he stayed throughout the night of 22nd November, 1981 till the morning of 23rd November, 1981.

In his well-considered judgment, the learned trial judge meticulously dealt with all those defences. On the issue of identification of the Appellants he considered it in relation to each Appellant; and on the whole, he found not only that the identification parade was properly conducted, but also that P.W.1 clearly identified all the Appellants as those who took part in the armed robbery. On the issue of contradiction, the learned trial Judge first observed that:

“It is not every discrepancy between what one witness says, or between what a witness says at one time and what he says at another that is sufficient to destroy the credibility of a witness altogether. See Ndebili v. The State (1965) N.M.L.R. 253 at p.257.”

and ofter reviewing the evidence on the issue, he then concluded that:

“In any case, I do not consider the alleged contradiction, if any, as of any substonce. For an objection to succeed on the ground of contradiction in the evidence of a witness for the prosecution, the contradiction must be shown to amount to substontial disparagement of the witness or witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely an the evidence of the witness or witnesses, see Enahoro v. The Queen (1965) N.M.L.R. 265.”

Moreover, on the issue of Alibi, the learned trial Judge found that the defence was an after thought because at the first opportunity after the incidence when the 2nd Appellant made his statements to the Police – Exh. BB and CC, he did not state herein that he was staying with his brother at Osogbo at the time of the armed robbery in Ilesa. He then observed that: