Kolade Olajide Fowosere V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Ekiti State High Court of 13/03/2014 in Charge No HAD/26C/2012, delivered by O.I.O.Ogunyemi J., convicting and sentencing to death the appellant and his two co-accused persons of two counts of armed robbery, specifically of robbing Mrs Ojesanmi Olusayo (P.W.2) and another of Mr Mathias Ref Kumar (PW6), a third count of conspiracy to murder one Olusegun Olufowobi, and a 4th count of murder of the said Olusegun Olufowobi, a Police Corporal and husband of PW1, Mrs Sherifat Olufowobi.

The appellant was the 1st accused person in the Information before the trial High Court, in which he was convicted of all four charges along with his 2nd co-accused person Owhorisi Blessing while the 3rd accused, Ogundare Ojo Peter, was acquitted of counts one and two but convicted of counts three and four.

The record shows that all the crimes – that is, the two robberies and the conspiracy to murder and actual murder – were committed in the month of July 2011 but on different dates and places.

Whereas Count One of the Information charged the appellant and his co-accused persons with robbing while armed, Mrs Ojesanmi (a.k.a. Odesanmi) Olusayo, P.W.2, of her N84, 000.00, laptop, computer bag, two wrist watches and three handsets at Omisanjana Quarters in Ado-Ekiti on 4th July 2011, Count Two alleged that they robbed PW6, Mr Mathias Ref Kumar, of the sum of N19, 000.00 and two handsets six days later on 10th July 2011 at Ido-Ekiti, while in Counts Three and Four all three accused persons were charged with conspiracy to murder and actual murder of Olusegun Olufowobi on 20th July 2011 at Moferere Quarters in Ado-Ekiti.

The sequence of the crimes as presented by the prosecution in evidence is that the three accused persons on 4th July 2011, between 10.30 and 11.00 pm, while armed with a gun, robbed PW2 (Mrs Odesanmi Olusayo) a school teacher, at her home in Ekute, Ado-Ekiti and robbed her of the items earlier mentioned which, in the company of her husband, she promptly reported at Ekute police station.

On the 10th of July 2011, the same three-man gang, armed with axe, cutlass and gun and in half mask, again struck at Ido-Ekiti and successfully robbed PW6, Mr Mathias Ref Kumar, a nurse with the Federal Medical Centre (F.M.C.), Ido-Ekiti, of N19, 000.00, handsets, and ATM cards with which they successfully used to later withdraw monies from ATM machines.

PW6 in fact testified that while his neighbour went to report the incident to the police, he looked for the robbers throughout the night and, on his way to work at about 5.25 a.m., saw one of the robbers, whom he later identified in evidence as the appellant (1st accused), wave his car down and asked for a lift to Ado but he told him (appellant) he was not going to Ado. That person, appellant, he said, wore the same clothes he was wearing during the robbery and was also holding a bag. He added that the robbers left behind in his house a polythene bag containing a T-Shirt.

Again, the same robbers, according to the prosecution, armed as usual with axe, cutlass and gun and masked, struck again in the night of 20th July 2011 at the home of the PW1 and her now deceased Police Corporal husband, Olusegun Olufowobi and fired gun shots at the deceased from which he later died that same night. Pw1 who was the first person they accosted in the robbery testified that her deceased husband also shot back at one of the robbers – later revealed as the second accused person, Mr Blessing Owhorisi – on his chest with his service rifle. Pw1 also testified that policemen later arrived at the scene and took her husband to the State hospital in Ado-Ekiti but it was on strike and could not even admit let alone treat him.

She added that the gateman of the hospital nevertheless revealed to them that some men had earlier brought a man with a gunshot injury on his chest who they claimed was shot by a policeman and he referred them to the Federal Medical Centre, Ido. His description of the men, she claimed, matched the robbers that attacked her house that night and she openly said so. She added that, following the death of her husband later that same night, she made a formal report of the incident at Ologede Police station.

It was also the case of the prosecution that, following a response by the Osun State Police Command to alerts earlier placed by the Ekiti State Command of the Police concerning the killing of the Police Cpl Olufowobi by the three-man armed-robbery gang, with one carrying a gunshot chest wound, police officers at Ekiti State Command in the next morning traced the robbers (the appellant and his co-accused persons) to Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile-Ife, where the wounded robber Blessing Owhorisi was taking treatment for his injuries, and arrested all three of them.

The case was said to be first investigated at Ologede Divisional Police Station in Ekiti State by PW3, Police Corporal John Ebegbuma, before it was transferred to State Criminal Investigation Department (C.I.D.) of the Ekiti State Police command Headquarters, where it was again investigated and statements, including Exhibit E from the appellant, which all turned out to be confessional, were obtained from all three accused persons before they were charged to court. The confessional statement of the appellant, Exhibit E (wrongly described as Exhibit Q in the first line of page 68 of the records even as it is correctly marked as Exhibit E and so referred to in all other parts of the same record), was tendered along with those of his co-accused persons, Exhibits G & I.

In his said confessional statement, Exhibit E, the appellant is recorded to have said thus: