Wale Adisa V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

The Appellant was one of the two defendants charged with the offence of armed robbery contrary to Section 402 (2) (a) of the Criminal Code Law, Cap C.17, Vol.2, Laws of Lagos State 2003. They were arraigned before the High Court of Lagos State holding in Ikeja for robbing one Ibitoye Abiodun of his phone Nokia 2100 and N5000; and one Osotimehin Eniola while armed with guns on or about the 6th day of December 2005 at Mr. Biggs Headquarters, along Kudirat Abiola Road Oregun Ikeja in Ikeja Judicial Division.

The prosecution’s case is that on or about the 6th day of December, 2005 at about 9pm, the Appellant, the 1st Defendant and others now at large conspired to rob and did rob while armed with guns, one Osotimehin Eniola (PW1) and Ibitoye Abiodun (PW2). They got away but PW1 and PW2 reported the robbery at Alausa Police Station that night. Luck ran out on the robbers when their car was involved in an accident. The other robbers thinking that the 1st Defendant was dead abandoned him at the scene and ran away.

Pedestrians around Oworonshoki took the 1st Defendant who was then unconscious to Ogudu police Station. PW2 whose mobile phone was taken by the robbers made a call to the phone and the call was answered by a Police officer at Ogudu Police station who then invited PW2 to the Police station. The police at Alausa were contacted and IPO Adekunle Babatola (PW3) went to Ogudu police Station where he was informed that the 1st Defendant, still then unconscious was found in possession of the phone and live cartridges. 1st Defendant was later taken to Alausa Police Station where he made a confessional statement.

The case was then transferred to SCID Panti for detailed investigation. There, the 1st Defendant made another confessional statement in which he mentioned the name of the 2nd Defendant now Appellant as having taken part in the robbery. The 1st Defendant took the IPO Sgt Victor Omoregie (PW4) to the house of the 2nd Defendant (now Appellant) in a remote village at the border between Ogun and Lagos by the bank of a river where he was arrested. He also made a confessional statement to the Police.

The 2nd Defendant later retracted his confessional statement and now claimed he was in Bayelsa State with his boss (DW3) at the time of the robbery. He claimed he was arrested by the Police while on his way to buy food somewhere around Isheri. He denied making any confessional statement and claimed the statement was written by the Police who forced him to sign it.

At the trial, the prosecution called four witnesses. The confessional statements of the Defendants were admitted in evidence after a trial within a trial as well as the cartridges recovered from the 1st Defendant. The Defendants testified in their defences and the 2nd Defendant called one witness, his boss (DW3). At the end of the hearing and counsel addresses, the Defendants were found guilty of conspiracy and armed robbery and were accordingly sentenced to death.

Dissatisfied with the conviction, the 2nd Defendant filed a notice of appeal on 20/4/11 with three grounds of appeal. With the leave of this court, he filed an amended notice of appeal with five grounds of appeal out of which he formulated three issues. The issues are as follows:

I. Whether the learned trial Judge was right in upholding the Appellants retracted confessional statement and convicting him on same? (Grounds 3 and 5 of the amended Notice of Appeal)

II. Whether there was sufficient or any evidence of identification linking the Appellant to the crime? (Ground 1 of the amended Notice of Appeal)

III. Whether the learned trial Judge was right in dismissing the defence of alibi raised by the Appellant and discountenancing the testimony of DW3? (Grounds 2 and 4 of the amended Notice of Appeal)

The Respondent in his brief adopted the three issues formulated by the Appellant.

ISSUE NO 1

Whether the learned trial Judge was right in upholding the Appellants retracted confession and convicting him on same