Lukmon Osetola & Anor V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

The Appellants as 1st and 2nd accused persons & anor were at the High Court Ibadan in Charge No. RFT/3/98 arraigned, tried, convicted and sentenced to death on a two count charge of (1) Conspiracy to commit armed robbery contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990. (2) Attempted armed robbery contrary to and punishable under section 2(2)(a) of the Robbery and Fire-arms (Special Provisions) Act Cap 398 of the Laws of the Federation of Nigeria 1990.

The case for the prosecution was that on the 29th December, 1996 at about 8 p.m., PW2 by name Abudu Alao was in his father’s beer shop when three young men on a white vespa motorcycle came to the shop. While the rider of the vespa motorcycle remained on the motorcycle outside, the two others entered the shop in pretence of being customers who wanted to purchase stout. One of the men suddenly produced a gun from a plastic bag which he pointed at PW2 ordering him to produce all the money that had been made from the day’s sales. PW2 told him that he (PW2) hadn’t the keys to the safe where money so realized was kept.

The men asked for his father and PW2’s reply to them was that his father was not around. The men then spotted PW2’s father who was sitting somewhere outside the shop and called him into the shop where they introduced themselves as men of the C.I.D. Eleweran Abeokuta. They pointed a gun at him and asked him to bring out all the money he had made from the day’s sales and PW2’s father by name Alhaji Sikiru Alao requested his son PW2 Abudu Alao to bring out the money from the safe. As PW2 was going to the safe to bring out the money his father Alhaji Sikiru Alao was shot and killed. The men then fled from the shop and reunited with their partner in crime on the vespa motorcycle in an attempt to flee from the scene whereupon PW2 gave chase. One of the men fell down from their getaway motorcycle while the other two escaped. A struggle then ensued between PW2 and the man, who had been left behind by his partners but the man overpowered PW2 and fled into the night. PW2 later that night reported the incident at the Ibara Police Station to the police officer on duty PW3 by name Sergeant Fidelis Bimi, who obtained his statement and followed him to the scene of crime where he found the lifeless body of PW2’s father- Alhaji Sikiru Alao which he deposited that night in the mortuary for post-mortem examination which was performed by PW1 Dr. E. A. Sobowale a medical officer, whose report was that Alhaji Sikiru Alao had a gunshot wound in the chest and died of hemorrhagic shock. This medical report was tendered as Exhibit ‘A’ while PW2’s statement to PW3 was tendered as Exhibit “B”. An expired cartridge found at the scene of crime was tendered as Exhibit ‘C’. PW4 one Corporal, Temitayo Adepelumi took up further investigation of this case and a search of the house of one Mrs. Modinatu Adekoya resulted in the recovery of among other items, the gun used in the attempted robbery that took place at Ibara Omida in the night of the 29th December, 1996.

The gun was tendered in the course of proceedings. PW4 also arrested the three accused persons between the 6th & 7th January, 1997 and obtained confessional statements from them which were objected to by their respective counsel as not having been made voluntarily but after a trial within trial, the Court found the objections to be baseless and admitted them as Exhibits I, J and K respectively. Photographs of an identification parade by the police where PW2 identified 1st accused as being the one who shot and killed his father Alhaji sikiru Alao were tendered by the prosecution also as Exhibits G and G1 while the getaway vespa motorcycle allegedly used by the fleeing armed trio on the night of the incident was admitted by the prosecution as Exhibit “H”. PW4 had told the court how the 2nd accused had led him into a house where the vespa motorcycle was recovered. In proving its case, the prosecution called four witnesses and tendered eleven Exhibits.

At the end of the case for the prosecution, each of the accused persons gave evidence in his own behalf but called no witness. While the 1st accused did not deny being at the scene of crime on the day of the incident, his evidence was that of an innocent person who had found himself in the wrong place at the wrong time. He said, he was at work at the Date Joint Restaurant when a man by name Saheed came in to have a drink. He tried to hurry Saheed and another man up contending that he wanted to close early as he intended going to Ibara, Omida area of Abeokuta. Saheed told him not to be too hasty as he himself intended going to that same area of Abeokuta, and that he would give him a ride. He (1st accused) and Saheed, then came out of the restaurant and boarded a commercial motorcycle popularly referred to as ‘Okada’ and when they got to the shop of Alhaji Sikiru Alao (PW2’s father) around 8p.m. on the day of the incident, he disembarked and Saheed asked him to find out the price of a carton of stout from PW2’s father’s shop, while he (Saheed) would go to the shop of his radio repairer near PW2’s father’s shop. Saheed then came into PW2’s father’s shop and surprisingly produced a gun from a nylon bag he was carrying and pointed the gun at both PW2 and himself (1st accused). Saheed then asked PW2 to bring out money from the day’s sales and as PW2 began to scream, the attention of a man outside the shop was attracted and as the man came into the shop, Saheed ordered him to bring out all the money from the day’s sales and as the man stood where he was, Saheed shot him. 1st accused said, he did not know Saheed or where he had come from as he had only met him twice in the past, the first time being the 24th December,1996 and on the 29th December, 1996 the day of the incident and that even if he saw him he would not be able to recognise him.

He denied knowing anyone connected with the incident. 2nd accused also denied the charge and said he knew nothing about the offence. While admitting that he was a commercial motorcyclist, who owned a vespa motorcycle and which colour he gave as red, he denied carrying any passenger to Ibara Omida on the 29th December, 1996 the day of the incident. He admitted making a confessional statement, but said he did so under torture. The accused called no other evidence.

At the close of the case for the prosecution and the defence, Counsel on both sides addressed court and in its considered judgment delivered on the 21st May, 2004, the learned trial Judge S. A. Oduntan J. found the 1st & 2nd accused persons guilty and convicted each of them on Count 1 to death and on Count 2 to imprisonment for life.

Dissatisfied the 1st & 2nd accused persons have appealed as 1st & 2nd Appellants not only against the final judgment delivered on the 21st May, 2004 but against the ruling on the trial within trial delivered also by Oduntan J. on the 21st February, 2003. The Appellants filed Notices of Appeal contained at pages 127-135 and 136-143 of the Record of Appeal. The grounds of appeal are identical and are reproduced below devoid of particulars:

1. ERROR-IN-LAW

The Learned trial Judge erred-in-law in shifting the onus of proof of the voluntariness, or otherwise of a confessional statement on the 2nd Accused/Appellant when in law it is squarely the duty of Prosecution to prove beyond reasonable doubt the voluntariness of confessional or extra-judicial statement.

2. ERROR-IN-LAW

The trial Judge erred-in-law in holding that the Prosecution has proved the making of the confessional statement free and voluntary and, or admitting the purported confessional statement of the 2nd Accused/Appellant as having been voluntarily made.

3. ERROR-IN-LAW

The trial Judge erred-in-law in relying on the evidence of PW2 and PW4, as being evidence which corroborated the purported confessional statement of the 2nd Accused/Appellant.

4. ERROR-IN-LAW

The trial court erred-in-law in convicting the 2nd Accused/Appellant of the offence of conspiracy.

5. ERROR-IN-LAW

The trial Court erred-in-law in convicting the 2nd Accused/Appellant on his retracted confessional statement without corroborative reliable evidence before the court.