Kayode Babarinde & Ors. V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal sprang from the judgment of the Kwara state High Court, corm, Hon. Justice I. R. Garba, delivered on 29/09/2009 in which the appellants were convicted of criminal conspiracy and armed robbery.

Flowing from the processes filed, the facts of that case, leading to this appeal, are not complex. The respondent alleged that the three appellants, while armed with a locally made pistol, 18/08/2007, attacked and robbed one Mrs. Ruth Alabi, the complainant, of the sum of N50,000 at Baba Oloya Area, Jebba in Moro local Government Area of Kwara State. After the robbery attack, the victim, Mrs. Ruth Alabi, raised alarm which attracted her husband and her grown-up son who pursued them. The first appellant was arrested on the same day and his arrest led, to the arrest of the second and third appellants the following day. The police, who arrested them, took them to Jebba Police station whence they were later transferred to the Special Anti- Robbery squad (SARS), at the police Headquarters, Ilorin, Kwara State. The police, via the special Anti-Robbery Squad (SARS) team, later arraigned the appellants in the High Court of Kwara State on a two-count charge of criminal conspiracy and armed robbery contrary to section 97 of the Penal Code and section 1(2) of the Robbery and Fire Arms (Special Provisions) Act, Cap. R 11 Laws of the Federation of Nigeria, 2004 respectively. The appellants took their plea on 06/03/2008 and each of them pleaded not guilty to the two counts of the charge. Sequel to that not guilty plea, the case went into a full-scale trial in which the prosecution fielded three witnesses, PW1 – PW3, and tendered eight (8) exhibits, exhibits 1-7A. On the appellants’ part, each of them gave evidence in his defence without calling any other witness. Each of them denied committing the alleged offences.

In the course of the PW1 giving evidence, in examination-in-chief, the respondent sought to tender the extra judicial statements made by the appellants to the police in evidence. The appellants raised objection to their voluntariness which led the lower court to conduct trial within trial over their voluntariness or otherwise called two witnesses, PW1 and PW2, while each of the appellants gave evidence in rebuttal without calling any other witnesses.

After the addresses of counsel for the prosecution and the defence in that proceeding, the lower court, in considered rulings delivered, on 30/07/2008 and 29/01/2009, on pages 64-72 and 86-92 respectively, overruled, the objections. It, consequently, admitted the confessional statements of the second, third, and, first appellants as exhibits 4, 5 and 6 respectively.

Thereafter, the lower court concluded the evidence of prosecution and defence witnesses and took the written addresses of their learned counsel. On 29/09/2009, it delivered its 17 – page judgment, contained on pages 108 – 125 of the printed record, wherein it found the appellants guilty of the two offences, convicted them of same and sentenced them thus: “For the charge of criminal conspiracy, each of the convicts is sentenced to 2 years imprisonment.

On the charge of armed robbery, each of the convicts is sentenced to death by hanging until pronounced dead. There is right of appeal available to the convicts as allowed by law”.

In consonance with the law, the appellants lodged three separate notices of appeal on 05/11/2009, located on pages 126-181 of the printed record of appeal. Subsequently, precisely on 23/11/2011, this court, on the behest of the appellants, granted them leave to amend their different notices of appeal, each of which hosted six grounds of appeal and deemed them as properly filed and served on the respondent on that date, 23/11/2010.

As required by law, parties, via their learned counsel, filed and exchanged their briefs of argument in this appeal. The appeal was heard on 05/12/2011. On that day 05/12/2011, the learned appellants’ Counsel, Ikenna Okoli, Esq., adopted the appellants’ brief of argument filed on 14/01/2011, but deemed filed on 13/04/2011, as representing his arguments in support of the appeal. He urged the court to allow the appeal. Similarly, on that date, 05/12/2011, the learned respondent’s counsel, J.A. Mumini, Esq., adopted the respondent’s brief of argument filed on 24/06/2011, but deemed filed on 26/10/2011, as representing his submissions against the appeal which he prayed the court to dismiss.

In their brief of argument, the appellants crafted three issues for determination of the appeal as follows:

(i) Whether the trial court was right in admitting in evidence Exhibits 4, 5 and 6 (alleged) confessional statements of the appellants) and/or attaching any or much weight to the said Exhibits 4, 5 and 6 and convicting the appellants based on the said Exhibit 4, 5 and 6?

(ii) Whether the trial court had not presumed the appellants guilty before trial thereby occasioning a miscarriage of justice?

(iii) Whether the prosecution proved the offences of criminal conspiracy and armed robbery against the appellants beyond reasonable doubt?

Exultantly, the respondent adopted those three issues for determination of the appeal as formulated by the appellants.