Ore-ofe Adesina (A.k.a Alhaji) & Anor. V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C.A. (Delivering the Leading Judgment)

This is an appeal against the conviction and death sentence passed on the appellants for conspiracy to commit armed robbery and armed robbery by the High Court of Ogun State sitting at Ijebu-Ode in its judgment delivered on 6th July, 2004.

The appellants were charged before the High Court of Ogun State sitting at Ijebu-Ode on the following two-count charge:

Count 1

“That you Ore-Ofe Adesina (Alias Alhaji), Rasheed Olawale (Alias Emeka) and others now at large on or about 28th day of February, 2002, at Gateway Bank Plc, Ijebu-Ode Branch in the Ijebu-Ode Judicial Division did conspire to commit a felony to wit: Armed robbery and thereby committed an offence contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Etc. Act 1999.

Count 2

That you Ore-Ofe Adesina (Alias Alhaji), Rasheed Olawale (Alias Emeka) and others now at large on or about 28th day of February, 2002, at Gateway Bank Plc, Ijebu-Ode Branch in the Ijebu-Ode Judicial Division did rob the Gateway Bank Plc, Ijebu-Ode Branch of the sum of N14 Million, and during the said robbery were armed with firearms to wit: gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments) Etc. Act 1999.”

They pleaded “not guilty” to each count.

The prosecution’s case before the lower court was that on 28/2/2002 between 7.00-8.00 pm a gang of armed robbers forcefully broke into the Gateway Bank, Ijebu-Ode branch, Ogun State. They shot into the air and demanded the keys to the strong room and stole the sum of N14 Million in different denominations. After the operation the matter was reported to the Police. On the same day at about 11.00 pm a patrol team (which included PW3) saw an Opel Omega car involved in an accident behind Federal Government College, Odogbolu. It was unoccupied at the time. Upon conducting a search of the vehicle 356 bullet cartridges and a pistol were found. The vehicle was repaired and taken to the Police Station. According to PW3, a policeman and a guard attached to a nearby filling station informed the team that the car had three occupants who were carrying “Ghana Must Go” bags. The following morning the same patrol team saw three men, two of whom were carrying “Ghana Must Go” bags. Two of them (the appellants) were arrested while the third escaped into the bush.

It was the prosecution’s case that upon searching the bags they were found to contain money in different denominations wrapped in Gateway Bank currency wrappers amounting to N3, 777, 900:00. The appellants claimed it belonged to them. They were arrested and taken to the Police Station for further investigation. They were alleged to have volunteered confessional statements. At the conclusion of the investigation, they were charged to court on the aforementioned two-count charge.

In their defence the appellants denied involvement in the robbery and said they were arrested at a restaurant beside a petrol station at Odogbolu. They also denied making the confessional statements. At the conclusion of the trial the lower Court on 6th July, 2004 found that the Prosecution had proved both counts of the charge against the appellants beyond reasonable doubt. The appellants were convicted accordingly and sentenced to death.

The appellants were dissatisfied with the decision and filed separate notices of appeal dated 14th July, 2006 containing the omnibus ground of appeal, to wit: that the decision is unreasonable and cannot be supported having regard to the evidence. Pursuant to a motion on notice dated and filed on 23/5/07 the appellants jointly sought leave to argue four additional grounds of appeal. The application was granted on 24/11/07. The additional grounds of appeal are as follows:

1. The learned trial Judge erred in law and thereby came to a wrong decision when he held that an identification parade was not necessary notwithstanding the materiality of the identity of the appellants to the case of the prosecution.
2. The learned trial Judge erred in law in relying and convicting the appellants on the basis of circumstantial evidence when the circumstantial evidence were weak and lacked any probative value.
3. The learned trial Judge erred in law by convicting the appellants on the basis of the purported confessional statements in the absence of other outside corroborative or supportive evidence.
4. The learned trial Judge erred in law when he convicted the appellants for the offence of conspiracy in the absence of any evidence whatsoever.

The parties duly filed and exchanged briefs of argument.

At the hearing of the appeal on 15th February, 2010, Dr. Joseph Nwobike leading Miss B.T. Ogundipe for the appellants adopted and relied on the appellants’ brief dated and filed on 4/10/07. In adumbration of the first issue argued therein he submitted that the failure to call material witnesses who saw the alleged robbers and who could have identified them was fatal to the prosecution’s case. He urged the court to allow the appeal. J.K. Omotosho, Assistant Director of Public Prosecutions, Ministry of Justice, Ogun State leading Miss E.K. Oji, State Counsel and Miss E.O. Omemu, State Counsel adopted and relied on the respondent’s brief dated 12/6/08 and filed on 13/1/09 but deemed filed on 7/4/09. He urged the court to hold that in the circumstances of this case identification of the appellants was not necessary. He urged us to dismiss the appeal.