Popoola Adebayo Rasaki V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA MOH’D TSAMMANI, J.C.A. (Delivering the Leading Judgment)

The Appellant and one Adebayo Idowu were charged before the High Court of Ekiti State on three (3) counts of conspiracy to commit a felony, to wit: armed robbery, armed robbery and murder, which are offences punishable under Sections 5(b), 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.39B; Laws of the Federation of Nigeria, 1990 (as amended), and Section 319 of the Criminal Code (Cap. 30), Laws of Ondo State, 1978, as applicable to Ekiti State.

The case of the prosecution against the Appellant is that, on the 15/8/2003, at about 11:55 p.m., robbers broke into the house of the 1st and 2nd prosecution witnesses while armed with guns and made away with the sum of Two Hundred and Twenty-one Thousand, one Hundred and sixty-Five Naira only (N221,165.00) belonging to the P.W.2 (Mustapha Sunmonu). It is also the prosecution’s case that, in the process of the robbery, the P.W.2 suffered a fracture on his leg as a result of gun shots inflicted on him by the robbers and that one Bisiriyu Sunmonu was also shot and later died in the hospital. In an effort to prove their case against the Appellant and the other accused person, the prosecution called eight (8) witnesses and tendered exhibits A, B, C, D and E – E6 respectively. The P.W.1 and P.W.2 testified at the trial that they were able to recognize their assailants, one of whom was the Appellant. The Appellant and his co-accused denied participating in the robbery and contended that, they had spent the night with the Appellant, Sister (D.W.3) at Emure-Ekiti in the night of the 15/8/2003, which is the night of the robbery. The Appellant therefore specifically raised the defence of alibi. It is also pertinent to point out that the 3rd count of murder was dropped before the Appellant was arraigned.

At the close of evidence, the learned trial judge disbelieved the alibi raised by the Appellant and consequently found him and the co-accused guilty of conspiracy to, and the commission of armed robbery, and sentenced both of them to death. The Appellant is aggrieved by the judgment of the lower court and has now appealed to this Court vide his original Notice of Appeal which is undated but contained at pages 105 – 110 of the Record compiled by comrade Femi Jolaoso and filed the 14/05/2009. The Appellant subsequently filed a Motion on Notice dated the 12/01/2009 and filed the 13/01/2009 wherein he sought leave of this court to file supplementary Record of Appeal. By the same motion he sought the leave of this court to Amend his Notice and Grounds of Appeal, and for extension of time to file the Appellant’s Brief of Argument.

The said motion was granted on the 14/10/2009. Accordingly, the supplementary Record of Appeal and the Amended Notice of Appeal were deemed filed on the 14/10/2009. It would appear however that the Appellant did not file his Brief of Argument within the extended time allowed him, so he filed another: motion seeking for extension of time to file the said brief. The said Motion on Notice is dated and filed the 31/12/2009 and was granted the 08/06/2010. The Appellant’s, Brief of Argument is therefore deemed filed the 08/06/2010. The Appellants Reply Brief dated the 16/9/2010 and filed the 17/9/2010 is deemed filed the 21/10/2010 vide Motion on Notice dated the 16/9/2010 and filed the 17/9/2010. The Respondent’s Brief of Argument dated 04/06/2010 was filed on the 07/6/2010 within time.

The parties having filed and exchanged briefs of argument, this appeal was heard on the 07/02/2011. The Appellant’s Brief is settled by Dr. Femi Jolaoso, while the Respondent’s Brief is settled by Gboyega Oyewole Esq, Attorney-General for Ekiti State. At the hearing of the appeal on the 07/02/2011, both parties adopted their respective Briefs of Argument, while the Appellant urged us to allow the appeal, set aside the judgment of the lower court and discharge and acquit the Appellant. Learned counsel for the Respondent urged us to dismiss the appeal.

I had earlier on pointed out that the Appellant had the leave of this Court to Amend the Notice and Grounds of Appeal vide motion on Notice dated 12/10/2009 and filed the 13/10/2009. The Amended Notice of Appeal is deemed filed the 14/10/2009. The Grounds of Appeal as contained in the Amended Notice of Appeal, without their particulars are as follows:

1. The Learned Trial Judge erred in law in holding that from the available evidence; the victims of the Robbery Operation were able to identify the Accused persons, that is the 1st Accused/Appellant, along with the 2nd Accused, as the Robbers during and after the Robbery.
2. The Learned Trial Judge erred in holding that the Defense of alibi raised by the 1st Accused/Appellant along with the 2nd Accused had been demolished by the case of the prosecution, and as such the defence of alibi and other defence that might be available to the Appellant and the 2nd Accused even if not raised by them could not avail the accused persons.
3. The trial court erred in law in holding that the charge against the Appellant and the 2nd Accused is not actuated by malice when there exists on record evidence of persistent malice between the family of the Deceased and PW1, and the Appellant since 1994, and prior to the alleged robbery.
4. The trial judge erred law in relying on the evidence of prosecution witnesses whose testimonies are apart from being inconsistent and conflicting, many of the witnesses can best be described as “Tainted witnesses” whose evidence must not only be watched with tooth-comb, but is wholly unreliable.
5. The trial court erred in law in holding that the prosecution has been able to prove by evidence beyond reasonable doubt the ingredients of the offences of conspiracy to commit Armed Robbery and Armed Robbery as alleged or charged.
6. The findings and judgment of the Trial court are altogether unwarranted, unreasonable and unsupported by the available evidence before the Court; viz:-

From these Grounds of Appeal, the Appellant distilled the following issues for the determination of this court; viz:-

1. Whether it was proper for the Trial Court to have held that by the evidence of identification before the Court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on evidence of alibi promptly set up by the Accused persons.

(GROUND 1)

2. Whether the prosecution had fully discharged its burden and, or duty to properly and fully investigate the defense of alibi promptly and fully set up by the Appellant, coupled with the detail particulars laid, or established. (GROUND 2)
3. Whether from the totality of the evidence before the Trial Court as adduced by the prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the alleged victims of the Armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged Offence herein. (GROUNDS 3 and 4)
4. Whether from the totality of the evidence before the Trial Court, the prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery, and principal offences of Armed Robbery as alleged, of charged (GROUNDS 5 and 6)

As pointed out earlier, the Respondent also filed a Respondents Brief of Argument on the 7/6/2010. Therein the Respondent also formulated four (4) issues for the determination of this Court. These are:-

1. Whether from the available evidence on record, identification parade is still necessary to ascertain the visual identification of the Appellants by the witnesses, especially P.W.1 and 2.
2. Whether the prosecution had fully discharged its burden on the defense of alibi as set up by the appellants.
3. Whether the evidence of the witnesses especially P.W.1 and 2 is based on alleged malice between the victims and the 1st Appellant.
4. Whether the prosecution had proved the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable, doubt to ground conviction of the Appellant.

A careful and sober consideration of the issues as formulated by the parties show clearly that the issues so formulated are similar in substance. That being so, I shall adopt the issues as formulated by learned counsel for the Appellant in the determination of this Appeal.

Before I proceed to a consideration of the submissions of counsel on the issues formulated, and resolution of those issues, I find it pertinent to point out that this Appeal No: CA/AE/44/C/2010 is identical in content and substance with Appeal No:CA/AE/43/C/2010; in ADEBAYO IDOWU VS. THE STATE (Unreported), delivered today the 24th day of March, 2011. The appeals in both instances arose from the same proceeding in CHARGE NO: HAD/3C/2004 decided on the 29/6/2007 by Honourable justice C. I. Akintayo of the High Court of justice, Ado-Ekiti. The two Appellants in the two Appeals, to wit:

No:CA/AE/43/C/2010 and CA/AE/44/C/2010 were jointly charged in the said High Court for the offences of conspiracy to commit armed robbery and armed robbery. The evidence led against them at the trial Court are identical, The trial Court found both of them guilty of the offences alleged against them and also sentenced both of them to death. As required by law, both Appellants filed separate Notices of Appeal through the same counsel; Dr. Femi Jolaoso. A perusal of the Notices of Appeal show clearly that the grounds of appeal are identical. Similarly, identical issues were formulated in their respective briefs of argument and the arguments therein are on all fours with each other. The only major difference I find in the two cases are in the nature of the defenses available to each of the Appellants, While the Appellant in Appeal No: CA/AE/44/C/2010 made a statement to the police which was recorded in the English Language wherein he raised the defense of alibi, the case of the Appellant in Appeal No.: CA/AE/44/C/2010 is different. This is because as found in my judgment in respect thereof, the statement of the Appellant therein, though tendered and admitted in evidence, was recorded in the Yoruba language, and same was not translated into the lingua franca of this Court, which is English. I found it to be of no evidential value in the determination of whether the defense of alibi or any other defense has been raised therein. Consequently, for the detailed reasons, contained in the said judgment, I did not consider the defense of alibi as applicable to the Appellant in the said Appeal No: CA/AE/44/C/2010. Apart from this exception, all other issues of fact and law in the two appeals are identical. Indeed counsel in the two appeals are the same and their arguments in the two appeals are identical.

Having pointed out that the two Appeals, viz: Appeal No: CA/AE/43/C/2010 and CA/AE/44/C/2010 are identical; I shall now proceed to consider the issues that arose for determination in this appeal as formulated by learned counsel for the Appellant. However, I shall abridge the submissions of counsel herein as same had, been adequately summed up in my judgment in Appeal No: CA/AE/43/C/2010. Similarly, I shall begin the resolution of the issues by first considering issue No. 2. The issue is: