Morufu Bolanle V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This is an Appeal against the judgment of the Court of Appeal Ibadan delivered on 19th April, 2004 affirming the conviction and sentence of death on the Appellant by the Oyo State High Court sitting at Ibadan of the offence of armed robbery.

The Appellant and another co-accused person were arraigned and tried by the trial High Court on one count information for armed robbery. In the course of the trial, the prosecution called five witnesses in support of the charge while the Appellant testified in support of his own defence. In his judgment which was delivered on 23rd January, 2002, after appraising the evidence adduced by the prosecution and the defence put up by the Appellant and his co-accused, the learned trial Judge found the Appellant guilty of the offence of armed robbery and convicted him. He was sentenced to death in accordance with the law while the co-accused of the Appellant was discharged and acquitted. The Appellant who was aggrieved by his conviction and sentence, appealed to the Court of Appeal Ibadan Division on five grounds of appeal. After hearing the parties on their respective briefs of argument, the Court of Appeal in its judgment handed down on 19th April, 2004 the appellant’s appeal was dismissed and his conviction and sentence of death were affirmed. Still not satisfied with this decision the Appellant is now on a further and final appeal to this Court. The facts of this case as revealed in the evidence led by the prosecution was that round 2.30 am on the night of October, 22 1996, a group of armed robbers stormed the residences of victims along Olorunsogo Street, Oke-Itunu Area of Ibadan. The robbers forced opened the residence of the victims and the Appellant in particular assaulted everybody with iron rod and a broken bottle. His attempt to rape PW2, Ruth Fatundimu did not materialize because the Appellant found she was in her menstrual period. However, the Appellant raped the 4th prosecution witness, Bolatito Ayilara while her mother Bosede Ayilara died of the wounds sustained by being hit with a broken bottle by the Appellant.

The evidence shows that the robbers took away money and valuables belonging to the witnesses. The Appellant was on a tip-off arrested. As the victim of the robbery had claimed that they could identify the robbers due to the electricity light that was on that night and the fact that the robbers had spent sometime with them, an identification parade was carried out by the Police nine days after the robbery. The Appellant and the co-accused were identified by some of the witnesses but the photographs of the identification parade was not tendered by the prosecution in the course of the trial. During the trial however, PW1, PW2 and PW3 had identified the Appellant as one of the armed robbers. The defence of the Appellant was that he did not take part in the robbery and that he was mistakenly identified by the victims.

At the end of the trial, the learned trial Judge in his judgment found the Appellant guilty as charged, convicted and sentenced him to death accordingly.

Part of this judgment at page 105 reads-

“From the cross-examination, the defence failed to expose any error in the observation, recognition and identification of the accused by the prosecution witness.”

However, at page 107 of the same record, the learned trial Judge observed on the co-accused and the Appellant as follows –

“Looking at this case as it relates to the 2nd accused, I have a doubt in my mind that he has anything to do with this case. While the eye-witnesses gave detailed activities of the 1st accused as regards the robbery operation, no evidence was led on any role of the 2nd accused respecting the robbery.

Having resolved the doubt I have in this case in favour of the 2nd accused, I hold that the prosecution have not proved any case against the 2nd accused. Accordingly, the 2nd accused is discharged and acquitted in the case.

The prosecution have established their case against the 1st accused.Consequently, he is found guilty and convicted of the offence of armed-robbery, committed against Emmanuel Fatundimu on the 22nd of October, 1996 at Olorunsogo (otherwise called Kalejaiye) Street,Oke-Itunu, Ibadan contrary to and punishable under Section 1(2)(a) of the Robbery and Fireams (Special Provisions) Act 1990 as amended. He is accordingly sentenced to death.”

These findings of the learned trial Judge were affirmed on appeal by the Court of Appeal. In the Appellant’s appeal to this Court against the decision of that Court, two issues for determination were identified by his learned Counsel in the Appellants brief. They are –

“(i.) Whether the conviction of the Appellant can stand notwithstanding the discharge and acquittal of his co-accused.

(ii.) Whether on the accepted evidence, the prosecution can be said to have proved its case beyond reasonable doubt.”