Olufemi Babatunde V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

The Appellant who was sentenced to death with one Joseph Olarewaju for armed robbery in Offa by the High Court of Kwara State, Ilorin Division on 4th October, 2013; has brought this appeal against his conviction and sentence.

The Appellant with the other were brought before the lower Court on a two count charge that read as follows.:

COUNT ONE

“That you Olufemi Babatunde and Joseph Olanrewaiu on or about 3rd day of June 2011 at Alhaja Sariyu Olorunnisola’s House Opposite Damson Hotel, Offa, Kwara State within the jurisdiction of this Honourable Court conspired together to commit an illegal act to wit; dispossessed the said Alhaja SARIYU OLORUNNISOLA of her Nissan Murano Jeep with Reg. No. Abuja BS 456 KUJ valued at N3.5m, jewelleries valued at N250,000.00, cash sum of. N273,300.00, two Nokia phones (Nokia 1202 and Nokia 2700) values at N18,000.00, POE Model No P168 Bluetooth Handset, Chaoba clipper valued at N4,500 and one Tecno handset valued at N7,500 and you thereby committed an offence punishable under Section 6(a) of the Robbery and Firearms (Special Provision) Act. LFN 2004.

COUNT TWO

That you Olufemi Babatunde and Joseph Olanrewaju on or about 3rd day of June 2011 at Alhaja Sariyu Olorunnisola’s House Opposite Damson Hotel, Offa, Kwara State within the jurisdiction of this Honourable Court while armed with gun and other dangerous weapon dispossessed the said Alhaja Sariyu Olorunnisola of her Nissan Murano Jeep with Reg. No. Abuja BS 456 KUJ valued at N3.5m, jewelleries valued at N250,000.00, cash sum of N273,300.00, two Nokia phones (Nokia 1202 and Nokia 2700) values at N18,000.00, POE Model No P168 Bluetooth Handset, Chaoba clipper valued at N4,500 and one Tecno handset valued at N7,500 and you thereby committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act. LFN 2004.”

At trial the prosecution called 5 witnesses and tendered some Exhibits while the Appellant gave evidence in his defence and called no witness. The case of the prosecution as presented before the trial Court is that the Appellant in the company of other people robbed one Alhaja Sariyu Olorunnisola of her Nissan Murano Jeep, Jewelleries, money and phones. The prosecution alleged that the Appellant was armed with gun when the offence was committed. It was the prosecution’s case that on 3rd June, 2011; a traffic warden officer brought an 18 – seater passenger bus into the Nigeria Police Divisional Headquarters, Owode, Offa for searching. In the course of the search, the Appellant and another passenger who were passengers in the bus were arrested trying to escape with a black sack containing 3 guns – 2 locally made pistols and one double barrel with 14 cartridges. The Appellant was subsequently identified as one of the people who robbed Alhaja Olorunnisola on an identification parade. The Appellant made a confessional statement which was so admitted in evidence after trial within trial.

The Appellant’s defence before the trial court is that some people who boarded that same bus had alighted along the way before the search of the bus. He gave evidence that the guns were not found on him and that it was a policeman at the station that pointed at him and told the complainant (PW2) that he was the person that robbed her.

In his judgment, the learned trial Judge found the Appellant guilty as charged. He convicted and sentenced him to death by hanging.

Dissatisfied, the Appellant has now appealed to this court via Notice of Appeal filed on 20th December, 2013 with 9 Grounds of Appeal.

The appeal was heard on 7th May, 2014. Mr. Olasope identified, adopted and relied on the Appellant’s brief filed on 18th February, 2014; and settled by him to urge the Court to allow the appeal. On its own, the Respondent by a brief settled by Kamaldeen Ajibade, the learned Attorney General of Kwara State; and filed on 17th March, 2014 urged the Court to dismiss the appeal.

Mr. Olasope distilled 5 issues for the determination of the appeal.

He argued issues 1, 3 and 5 together, while issues 2 and 4 were argued separately. The learned Attorney General adopted the issues as formulated by the Appellant and argued them the same way. The issues as agreed by parties that call for the determination of this appeal are as follows: