Kehinde Gbadamosi V. The State (2003)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This is an appeal against the decision of the Ogun State High Court delivered on 4/8/2010 by S. A. Olugbemi, J. sentencing the appellant to death by hanging after convicting him of a five (5) count charge of Conspiracy to commit Armed Robbery and Armed Robbery pursuant to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R.11 Laws of the Federation and punishable under Section 6(b) of the same Act.

The back ground facts on the part of the prosecution is that the Appellant and others at large at about 8.30 p.m. on the 19th day of February, 2009 at Glory Land hostel, Odo Epo, Ijebu Ode, while armed with guns robbed one Adeojo Tolulope of her Motorola 16 handset, a wrist watch and jewellery. One Sanya Oluwatoyin was also said to have been robbed of her Nokia Mobile Phone. The victims were said to have been locked up in a room while the appellant and others escaped. One of the occupants of the house was said to have escaped to the house of the Baale (Community head) who alerted people in the neighbouring village, who used stones and other wedges to block the road. The armed robbers were said to have ran into the road with the obstructions which affected the engine of their car which they abandoned and ran into the bush. The villagers alerted the police who went to the spot, searched the car and recovered a locally made pistol and cartridge.

The appellant was said to have gone to the police to report that his vehicle had been robbed from him claiming that a hunter rescued him, and that he spent the night with him. The appellant was later taken to the scene where his demeanor there made the police return him to the police station where a search was conducted on him and a mobile phone belonging to one of the victims was found. Consequently, the appellant was charged to court.

The appellant during the trial denied the charges. At the close of the trial, the trial court held that the prosecution had proved beyond reasonable doubt, the offences charged. The appellant was convicted and sentenced to death. The Appellant dissatisfied with the judgment of the trial court appealed to this court.

The Appellant’s original Notice of Appeal at page 73 of the records of Appeal was amended with the leave of this court. The Amended Notice of Appeal containing six (6) grounds which was filed on 5/12/2011 was deemed as properly filed on 21/1/2013. The Appellant contended that the complainant did not satisfy the gravamen of establishing his case by proving the guilt of the accused beyond reasonable doubt. It was also contended that the trial court guided himself wrongly in law by invoking the inconsistency Rule whereby the trial court expunged the defence of the Appellant in course of trial. It was alleged that the judgment of the trial court was a misapplication of the law which has occasioned a miscarriage of justice.

Two issues were distilled for determination by this court, they are:
1. “Whether by the facts and circumstances of this case, the evidence of the complainant was sufficient to convict the Appellant of the offence convicted of.
2. Whether the trial judge rightly involved and applied the inconsistency Rule whereby he expunged the defence available to the Appellant and sentenced him to death or whether the trial judge was right when he failed to conduct a Trial – within – Trial in the circumstance of involuntary statements the Appellant was coerced to make by the police.”

The respondent distilled three (3) issues for the determination of this appeal. They are:
(i) “Whether the prosecution has established, against the Appellant the offences of conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt.
(ii) Whether trial within trial is necessary in admitting EXHIBITS P2, P9, P9A, P10 and P10A, the confessional statements of the Appellant.
(iii) Whether the trial court was right in ignoring the oral testimony of the appellant and his extra judicial statement EXHIBT P for being contradictory.”

When the appeal was argued, the learned counsel to the Appellant E.R. Emukpoeruo Esq. adopted his brief of argument dated 20/3/13, filed the same day but deemed properly filed on 9/10/13, in urging us to allow the appeal.

In his issue one, it was submitted that the respondent at the lower court failed to link the appellant to the Armed Robbery offence committed and that conspiracy was not proved beyond reasonable doubt. It was Contended that the offence was not investigated before the appellant was charged to court. Further, that from the evidence of PW1 and PW3 the, three armed robbers were not masked, the PW3 also testified that she could identify one of the armed robbers who was a student of the Tai Solarin University of Education.

Further, that the respondent took undue advantage of the appellant who was also a victim of a robbery incident where his car was stolen and got detained after he reported the robbery incident. It was submitted that there was no identification evidence to show that the appellant is the same person that committed the offence, see UKPABI VS. STATE (2004) 11 NWLR (Pt.884) 439 SC and ARCHIBONG VS. STATE (2004) 1 NWLR (Pt.855) 488 CA. It was argued that the evidence of the PW2 that he searched the DW1 and found on him a Nokia 1110 is unfounded because the PW3 claimed to have recognized one of the armed robbers but did not identify the appellant as one of the armed robbers and no other witness did. It was argued that there was no evidence linking the Appellant to the offence committed.

The learned counsel to the appellant adopted the definition of conspiracy as defined in the case of USAMAN KAZA VS. THE STATE (2008) 3 NCC 374 at 475 also utilized by the trial court. It was the contention of the learned counsel that conspiracy cannot be proved against one person in the commission of an offence, see also SULE VS. THE STATE (2009) 17 NWLR (Pt.1169) P.93, PARAS. E – F.

On the appellant’s issue two, it was the contention of the learned counsel that the trial court wrongly invoked and applied the inconsistency Rule to the circumstance of this case by outrightly expunging both the oral testimony and the voluntary statement of the Appellant, Exhibit ‘P1’, for the reason that the Appellant’s oral testimony contradicted his voluntary extra judicial statement admitted in evidence as Exhibit ‘P1’.

It is the argument of learned counsel that the appellant ought not to have been convicted simply because the court regarded him as a liar, as the court has the duty to examine the totality of the evidence to see if his guilt has been proved beyond reasonable doubt, see: AGUNBIADE VS. STATE (1999) 4 NWLR (Pt.599) 391; UWAGBUE vs. STATE (2008) 12 NWLR (Pt.1102) 647 PARAS. A – C and AYO GABRIEL VS. THE STATE (1989) 5 NWLR (Pt.122) 457 at 468.