Oloruntosin Bello V. The State (2006)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This is an appeal against the conviction and sentence of death passed on the appellant by the High Court, Abeokuta, Ogun State, wherein he was arraigned on a three-count charge of conspiracy and armed robbery. He was alleged to have conspired with two others at large to rob Regina Idididi and Satus Igho of large sums of money at Itoku Market, Abeokuta while armed with cutlass. The case against the appellant to which he pleaded not guilty, is that he and two other men came into the shop where Regina (PW1) and Satus (PW2) sold rice and beans and demanded money from PW 1. She handed over the uncounted takings of the day and another N250,000.00 to the appellant who passed it on to his accomplices outside. As they left the shop, PW1 & PW2 raised an alarm and pursued the appellant who fell down after he was hit with a rechargeable lantern thrown by Blessing Akatu (PW3). He was then apprehended and taken back to the shop, where he was later arrested and taken to the police Station. The appellant gave evidence in his defence and did not call any other witness. He denied being at the scene of the robbery, and testified that he was on a motorbike when someone cut the strap of his bag and the knife also sliced him in the abdomen, that bleeding from the tummy, he fell to the ground where he was accosted by PW1 & PW2 who accused him of robbing them earlier, then he was later arrested by the police.

At the close of trial, learned counsel addressed the court and in his Judgment delivered on the 29th of March 2004, the learned trial Judge, Hon. Justice Ayobude Lokulo-Sodipe, found the appellant guilty as charged on all three counts, and sentenced him to death by hanging. Aggrieved by the decision of the lower Court, the appellant has appealed to this court with an amended notice of appeal containing two grounds of appeal. Briefs of arguments were duly filed and served and in the appellant’s brief prepared by Messrs. Dipo Okpeseyi & Co, two issues for determination were formulated as follows:-

1. Whether the appellant was sufficiently linked with the crime to justify the finding of the learned trial Judge that the prosecution has proved its case beyond reasonable doubt?
2. Whether the learned trial Judge was right in his consideration of the defence available to the appellant before conviction?

In the respondent’s brief prepared by A.O. Asenuga (Mrs.), the following two issues were formulated as arising for determination in this appeal:-

1. Whether from the totality of the evidence adduced at the trial, the prosecution had proved the charge as preferred against the appellant beyond reasonable doubt in accordance with section 138 of the Evidence Act (Cap 14) Laws of the Federation of Nigeria, 2004.
2. Whether the trial Judge duly and properly considered the defence raised by the appellant.

To me, the issues formulated by the appellant and the respondent raise the same questions – whether the prosecution proved its case beyond reasonable doubt? And whether the lower court considered the appellant’s defence? However, looking at the complaints in the appellant’s grounds of appeal, and the arguments canvassed in the briefs, I am of the view that the crux of the issue in this appeal can be narrowed down to whether the lower court did a proper evaluation of the evidence before it before convicting the appellant.

To this end, the appellant submitted that by section 138 of the Evidence Act, the burden of proof required in a criminal trial is that proof beyond reasonable doubt; that this burden, which does not shift is on the prosecution; and that section 36(5) of the 1999 Constitution presumes an accused person innocent until he is proved guilty, citing Idemudia v. The State (1999) 7 NWLR (Pt.610) 202 at 215 & Esangbedo v. State (1989) 4 NWLR (Pt.113) 57. The appellant further submitted that the lower court failed to follow the principle of law laid down in Bozin v. The State (1985) 2 NWLR (Pt.8) 465, that where the identity of the accused person is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial court is to give the accused the benefit of doubt, and pointed out that the lower court based its finding that he was guilty on the evidence of PW1, PW2 and PW3, and went on to say at page 52 of the record:-

“… as his bare denial has not created any reasonable doubt in the case of the prosecution.”

It was further argued, citing Bozin v. State (supra); Idemudia v. State (supra) & Esangbedo v. State (supra), that this approach by the lower court is a clear misdirection that has occasioned a miscarriage of justice, since the appellant was called upon to prove his innocence contrary to section 36(5) of the 1999 Constitution and section 138 of the Evidence Act. Furthermore, that the lower court did not resolve material contradictions in the evidence before it, and where he did, he did so without proper evaluation or stating the reason for accepting one and not the other. The court was referred to the evidence adduced by the prosecution, itemized as follows:-

1. The appellant fled the scene of the crime and was pursued.
2. The appellant was armed with a machete.
3. The scene of the crime was a market wherein the victim had a shop.
4. That the day, 10/3/2000, was the day of the egungun (masquerade) festival in the town.
5. The appellant while fleeing was hit by a rechargeable lamp and fell down before he was arrested.
6. PW1, PW2 and PW3 inflicted injury on the tummy of the appellant.
7. Because of the state of the appellant, bleeding, battered, bruised and injured, the police rejected him until the victims took him to the hospital for treatment.
8. The appellant was arrested at about 8.30pm and was only reported to the police at about 10.00pm.
9. The machete was recovered.
10. All monies collected by the appellant were handed over to his alleged accomplices waiting outside the shop.

It was further argued that the above summary of the prosecution’s evidence raised other unanswered or unexplained questions which were also itemized:-

1. Since both parties agreed the shop was inside Itoku market, was the shop of the PW1, PW2 and PW3 the only one open?
2. Was the victim’s shop the only shop attacked in the whole market?
3. At about 8.00 – 8.30pm was the whole market properly lit and the adjoining street with streetlight?
4. The appellant was allegedly arrested at a refuse dump at Odo-Oyo outside the Itoku market. What is the distance between the Itoku market and the refuse-dump at Odo-Oyo? What is the location of the shop within Itoku market vis-a’-vis the exit point used by the appellant when fleeing the crime scene?
5. Is the court not to presume that the market had people buying and selling and the fact that a festival was being celebrated make the street at least to have more people than usual?
6. Is the court not entitled to see the re-chargeable lamp thrown at the appellant that caused him to fall down in the face of denial?
7. Who recovered the machete (exhibit B) allegedly held by the appellant? Where was it recovered? Was the injury on the appellant’s tummy consistent with that caused by a machete or penknife? Was there bloodstain on the machete? What about the doctor’s report for treating and stitching the appellant’s wound?
8. Was it for the purpose of torture that the PW5 refused to invite the police immediately and waited at least two hours?
9. Was there nobody in the market that could testify about the robbery, or the alarm raised or the chase and arrest of the appellant?
10. Is it that PW1, PW2, and PW3 who lived and or trade in the area where they were robbed, raised the alarm, chased the robbers, arrested one, tortured him and sent him to the police station knew nobody who assisted them? Or was it that the street was too busy with strangers?
11. In the whole market was there no other trader to give evidence as to whether there was power failure or not or to confirm the robbery?

It was further submitted that the lower court gave no reason for not accepting the appellant’s story or for believing the prosecution witnesses, and since it had not directed itself properly or evaluated the evidence before it, the judgment is perverse and should be set aside, citing Daniels v. State (1991) 8 NWLR (Pt.212) 715; Bozin v. State (supra); & Abudu v. State (1985) 1 NWLR (Pt.1) 55. Furthermore, that the witnesses could have conspired to steal the money, because it is the Prosecution’s evidence that:-

1. PW1, PW2 and PW3 were all present at the time of the robbery.
2. It was only PW1, PW2 and PW3 that raised alarm in a market.
3. They were the only ones who ran after and arrested the appellant in a crowded street.
4. PW1, PW2 and PW3 alone tortured the appellant and wounded him to a point that the police rejected the appellant when he was brought to the police station.
5. The monies stolen belong to someone else – the owner of the shop.
6. All the prosecution witnesses were dependants of the said owner.
7. All three prosecution witnesses had knowledge and knew where the N250,000.00 was kept in the shop by the owner.
8. Apart from them no other person could testify in a robbery case that took place in the market and on a festival day?
9. That they all had the opportunity to steal the money is a possibility more so when they alone saw, pursued and arrested the appellant.

It was further submitted that the lower court was searching for evidence from the appellant to show that he was not the one who committed the robbery, instead of searching for evidence led by the prosecution to dispel or disprove his defence of mistaken identity, and that it is trite law that no matter how worthless an accused person’s defence may be, the trial court still has a duty to consider the defences dispassionately before dismissing same, citing Ogunye v. State (1999) 5 NWLR (Pt.604) 548; Bozin v. State (supra); & Onuolza v. State (1988) 3 NWLR (Pt.83) 460. Furthermore, that if the lower court had directed itself properly and dispassionately evaluated the evidence before it, it would have found that the prosecution was unable to provide answers or explanation as to whether or not the appellant:-

(a) Is a barber;

(b) Came in from Akure that same day;

(c) That he had a wife, mother and father-in-law in Abeokuta