Wale Banjo V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The High court of Justice of Ogun State holden at Ijebu-Ode, in the Ijebu-Ode Judicial Division, convicted and sentenced the appellant to death by hanging for the offences of conspiracy and armed robbery contrary to sections 5(b) and 1(2) (a) respectively of the Robbery and Firearms (Special Provisions) Act 1990, as amended; upon which the appellant felt aggrieved and appealed to this Court.

The case in the court below disclosed series of armed robberies were committed on 31.1.2000 and 15.2.2000 at the neighbourhood of Ayegbami Quarters, Ago-Iwoye, in Ijebu-Igbo of Ogun State. The first armed robbery incident of 31.1.2000 was about 12.55am. It directly hit the P.W.1, one Gilbert Deinde Iferajimi. He lost three cars and some assorted items to the robb6rs. Towards the end of February, 2000, the police invited him to the Ogun State Police Headquarters, Eleweran, where he identified his travelling bag, video player, one complete native dress, one video rewind and rewinder/cleaner among the goods recovered from the arrested persons.

In respect of the P.W.2 and the P.W.3, students of the Ogun State University, now Olabisi Onabanjo University, Aiyegbami, Ago-Iwoye, the armed robbers ‘struck at their various residences about 3.00 a.m and 2.30am respectively on 15.2.2000. They robbed the P.W.2 of N200, a rechargeable lamp with an audio cassette and a chair at gun-point and cutlass-point respectively. They also robbed the P.W.3 of his table alarm clock, brown pair of trousers of English wool, a black pair of jeans trousers/cash of about N500 kept inside a Redeemed Christian Church of God envelope, a black HAC travelling bag containing his driver’s license, two polo shirts, food items and five pairs of iro and buba apparel.

The P.W.2 reported the robbery attack to the police at about 4.30a.m of the same day. A search for the robbers ensued in the morning of the same day. In the course of the search, information reached them of the arrest of some robbers by the police. P.W.2 proceeded to the scene at Iperin junction. He arrived there at about 7.00 a.m. He met the police searching the robbers. In the process of the search, the audio cassette of P.W.2 was found in the back pocket of the appellant. Two rechargeable lamps and a locally made pistol were also recovered from the appellant and his companion.

The P.W.3 also learnt of the arrest of some of the robbers. He went to the police station where the robbers were taken, He arrived there between 8.30a.m – 9.00a.m of the same day. There he spotted the appellant with the native dress, salami noodles and sardine robbed of him in the early morning hours of 15.2.2000.

Appellant’s statement to the police, Exhibit B, was tendered by the respondent in support of its case in the court below. Appellant denied on oath that he made Exhibit B. His denial extended to his complicity or culpabability in the offences charged. The court below resolved in its judgment that appellant was guilty as charged. It convicted and sentenced him accordingly.

The original notice of appeal with one ground of appeal signed by appellant was filed on 15.4.2003. Eight grounds of appeal were, by the leave of Court, added to the notice of appeal. Appellant’s learned counsel, Mr. Olusola O. Idowu, extracted three issues for determination from the grounds of appeal in appellant’s brief of argument deemed filed on 27.10.2010, as follows:

“1. whether the learned trial Judge was right to have invoked the provisions of section 149(a) of the Evidence Act and applied the doctrine of recent possession in convicting the 1st appellant of armed robbery.

2. Whether generally there is any legally admissible evidence upon which the learned trial Judge could have convicted the 1st Appellant.
3. Whether the prosecution proves its case against 1st Appellant beyond reasonable doubt.”

Issue (1) (supra) was predicated on ground 5 of the notice of appeal. It was argued first to this inclination: The appellant denied possession of the stolen goods shifting the burden of proof to respondent to establish by credible evidence the discovery of the stolen goods in appellant’s possession; the P.W.4, the police investigator of the case, testified to the collection of the items from the Divisional Police Officer (D.P.O.) at Ago-Iwoye, not on the discovery of the stolen items with the appellant in respect of case reported to the police by the P.W.1, one Gilbert Iferajimi, whose testimony did not implicate appellant with the stolen goods; the respondent did not establish the person that arrested the appellant or recovered the stolen goods from him, and persons through whom the stolen goods passed before they were brought to court, which left the said links or gaps to speculation contrary to the decisions in Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552 at 561 and A. C. B. PLC v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501 at 517; the failure of respondent to call the material witnesses to fill the said gap cast doubt on the guilt of appellant vide Ogunsi vs. The State (1994) 1 NWLR (Pt. 322) 582 at 1592; therefore section 149(d) of the Evidence Act should be invoked against the respondent.

It was submitted further on issue (1) that Salami vs. The State (1988) 3 NWLR (Pt. 85) 670 applied by the court below is distinguishable as in that case appellant was caught driving the stolen vehicle and the person that arrested him with the stolen vehicle gave evidence to that effect which was not the case here; and as the evidence of P.W.2, P.W.3, P.W.4 and P.W.5 was hearsay, it was “perverse” for the court below to hold that appellant did not rebut the presumption in section 149(a) of the Evidence Act which occasioned a miscarriage of justice vide The State v. Ajie (2000) 11 NWLR (Pt. 678) 434 at 449, Nwamuo v. Okoro (2005) 11 NWLR (Pt. 990) 40, and Oju Local Government v. INEC (2007) 14 NWLR (Pt. 1054) 242 at 273.

Issues (2) and (3) (supra) hinged on grounds 2, 3, 4, 6, 7, 8 and 9 of the appeal were argued together in appellant’s brief to this effect: There was no credible and legally admissible evidence from respondent’s witnesses in proof of the offences of conspiracy and armed robbery against appellant, In the case of P.W.1, there was no shred of evidence from him against appellant while P.W.2 admitted the alleged incident happened in the dark with one of the robbers pointing a lit torchlight at his face indicating he could not have identified the robbers let alone state with precision appellant’s identity as one of the robbers; moreso P.W.2 did not disclose the physical features of appellant, save the vague reference to him as the “short one” in his evidence which conveyed little or nothing of substance; the P.W.2 having not complained of the robbery of an audio cassette but of a rechargeable lamp with audio cassette, the alleged discovery of an audio cassette with appellant could not have assisted respondent’s case and reliance upon it by the court below to convict the appellant should be held perverse by the Court vide State v. Ajie (supra). Nwamuo v. Okoro (supra) and Oju Local Government v. INEC (supra). The same analysis should be extended to P.W.3’s evidence also, ‘as he was not in a position to identify the robbers but conceded suspecting appellant as one of the robbers and suspicion no matter how strong should not take the place of legal proof vide Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31 at 47, 55 and Iko vs. The State (2001) 14 NWLR (Pt. 732) 221- at 253.

Still on issues (2) and (3) (supra), appellant’s brief argued that his evidence in the trial-within-trial on the alleged coerced confessional statement in Exhibit B was unshaken under cross-examination which the respondent failed to rebut by omitting to call the vital police witness in the Statement Room where appellant’s statement in Exhibit B was obtained by torture for him to testify at the trial-within-trial, therefore Exhibit B should be expunged from the case vide Usufu v. The State (supra) and Omogodo v. The State (supra): and the conviction and sentence of appellant should be quashed vide Okoro v. The State (1998) 14 NWLR (Pt. 584) 181 at 216, and Waziri v. The State (1997) 3 NWLR (Pt. 495) 689 at 721.

Respondent’s brief of argument dated and filed on 7.12.2010, but deemed properly filed on 17.2.2011, was settled by Mrs. Oduniyi, learned Director of Public Prosecutions (D.P.P.), of Ogun State.