Isikilu Olanipekun V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This is an appeal against the decision of the Court of Appeal, Ibadan Judicial Division which affirmed the decision of the High Court of Justice, Ogun State wherein the appellant was sentenced to death by hanging for alleged conspiracy and armed robbery contrary to Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap.38 Vol. XXII Laws of the Federation 1990.

The appellant was the 4th accused person who was arraigned with 3 others for the offence of conspiracy and armed robbery at the High Court of Justice, Ogun State. The robbery incidence took place at Ewi’s compound, Oke-Efon area of Abeokuta in Ogun State on 18th August, 2002 but the appellant was arrested on 3rd September 2002. The prosecution’s case was that on 18th August, 2002 at about 3.30 am, the appellant in company of three others armed with guns and cutlasses broke into the apartment of Evangelist Oluseye Ogunremi who testified as PW2 and demanded for money. In the course of the robbery operation, the appellant hit PW2 with an iron on the head and subsequently ordered him to lie with his face down on the

floor. After the robbery operation, PW2 discovered that the sum of N800.00 and a Nokia and Sagem handsets were missing. On 19th August, 2002 the 1st accused went to PW1 and tried to dispose of the handsets to him. PW1’s suspicion was aroused when the 1st accused could not produce the purchase receipts for the handsets and he arranged for the arrest of the 1st accused when he received information of the robbery that took place on 18/8/2002. The 1st accused on being arrested made some statements to the Police and this led to the arrest of the other three accused persons and the recovery of two locally made single barrel shot guns in an uncompleted building. According to Inspector Titus Ogbonna who gave evidence as PW4, he cautioned the 4th accused on 15/9/2002 in pidgin English before recording his statement in Pidgin English. He read it over to him and he thumb printed. He said the statement was confessional and so he took the 4th accused to a superior Police Officer where he (4th accused) confirmed the statement. The statement was tendered in evidence without any objection and was admitted as Exhibit

“D”. Altogether, nine witnesses testified for the prosecution and were cross-examined. Several exhibits were admitted in evidence. Each of the accused gave evidence in his defence before learned counsel for the parties addressed the Court. Judgment was delivered on 21st June, 2005. The learned trial Judge held that the prosecution proved its case against the accused persons beyond reasonable doubt and therefore sentenced each of them to death by hanging for the offence of armed robbery but stayed the sentence on the 1st count which is for conspiracy.

The appellant appealed to the Court of Appeal, Ibadan but the appeal was dismissed on 29/11/2010. This is a further appeal to the Supreme Court. The Notice of Appeal containing two grounds was filed on 24/12/2010. An amended Notice containing four grounds of appeal was filed on 2/11/2012. Learned counsel filed Amended Briefs of argument. The appellant’s amended Brief was filed on 29/1/2015 while that of the Respondent was filed on 9/3/2015. Both amended briefs were deemed filed on 3/3/2016, the same date the appeal was argued. The appellant formulated two issues from Grounds 1 and 2 of the Amended Notice of

Appeal. The Respondent equally raised two issues for determination. Since no issues were distilled from Grounds 3 and the Amended Notice, they are deemed abandoned and are accordingly struck out. See: Modupe v. State (1988) 4 NWLR (pt.87) 130; Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139: Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641: Olaiya v. State (2010) 3 NLWR (Pt. 1181) 423.

The issues formulated by the appellant from Grounds 1 and 2 respectively of the Amended Notice of Appeal are:-

1. Whether the Court of Appeal was right to have affirmed the decision of the trial Court which was based on extraneous evidence in finding Exhibit “D” was true in total disregard of the Supreme Court’s decisions in plethora of authorities etc OKOH v. STATE (2014) LPELR 22589 (SC), (2014) 8 NWLR (Pt.1410) 502; DEMO OSENI v. STATE (2012) 5 NWLR (Pt.1293) 351
2. Whether there was any reliable evidence in proof of the identity of the Appellant to support the Court’s decision that the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt

The same issues were raised in the respondent’s brief.

In his brief of argument, learned counsel

for the appellant referred to the judgement of the learned trial Judge where he relied on the alleged confessional statements of the accused and the fact that it was the accused persons who took the Police to where the guns were recovered to find that despite the denial by the accused of the authenticity of the said confessional statements, they were true and thus found them guilty of the robbery charge. At the Court of Appeal, the search light was centred on the veracity of Exhibit “D” in finding the appellant guilty. Learned counsel for the appellant referred to the evidence in chief as well as the cross-examination of PW4 and submitted that having established that Exhibit “D” was made in pidgin English and recorded in pidgin English, the prosecution ought to have tendered the said statement and not Exhibit “D” which authorship is shrouded in great doubt as there is no evidence before the Court that Exhibit “D” was translated from pidgin English to proper English. He concluded that the failure of the respondent to make available to the Court the appellant’s statement denied the appellant of his constitutional right to fair hearing.

Learned counsel for the

respondent submitted that both the trial Court and the Court below appraised and properly evaluated all the evidence adduced before arriving at a conclusion and urged this Court not to disturb the concurrent findings of facts of the two lower Courts since there is no miscarriage of justice which has been occasioned.

The veracity of Exhibits ‘D” was never raised in the trial Court. In the Court of Appeal, the issue of the statement being recorded in pidgin English was considered as a fabrication and the statement recorded from the appellant was never tendered in Court. Apart from PW4 who stated that he recorded Exhibit “D” pidgin English and read same over to the appellant, there is nothing to show that it was translated into another language. English the official language of the Court and it does not matter that the statement was said to have been recorded pidgin English.