Fatai Busari Vs The State (2015)

LAWGLOBAL HUB Lead Judgment Report

M.S. MUNTAKA-COOMASSIE, J.S.C.

The accused person, now Appellant, was arraigned before the High Court of Justice, Ibadan with 5 others for the offences of conspiracy to commit felony to wit, Armed Robbery and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions)Act. Cap R.11, Vol. 14 Laws of the Federation, 2014.

The Appellant and others stood charged as follows:

1. On or about 18th day of November, 1994 at Mobil Petrol Station, Challenge, Ibadan, Oyo State of Nigeria conspired together to commit a felony to wit, Armed Robbery and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Laws of the Federation of Nigeria,1990.
2. On or about 18th of November, 1994 at Mobil Petrol Station, Challenge, Ibadan while armed with offensive weapons to wit: Pistol and Riffle robbed Alhaji Nurudeen Kolawole of the sum of one Hundred and Fifty Thousand Naira (N150,000.00) and in the process of the robbery operation, killing him and hereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 398 volume XXII, Laws of the Federation of Nigeria, 1990 as amended.

The Appellant and those co-accused persons pleaded not guilty to the charges read by the court. The prosecution called a total of nine (9) prosecution witnesses who testified for the prosecution. It is to be noted that four accused persons Mumini Adisa, the Appellant herein, inclusive, each and every one made what the prosecution considered as confessional statement.

The defence made a no case submission on behalf of Fatai Busari. Mumini Adisa (the Appellant and Wahabi Alao). The trial court however accepted the no case submission in favour of Sunday, Okafor the 4th Accused only and accordingly discharged and acquitted him under Section 286 of the Criminal Procedure Law, (CPL). It, the trial court, in addition, called upon the other accused persons to defend themselves.

The three (3) accused persons, namely:

1. Fatai Busari – Appellant herein;
2. Mumini Adisa; and
3. Wahab Alao defended themselves. Not called any witness.

Appellant testified as Dw1 and called no witness. Mumini Adisa testified in his defence and called no witness. The 3rd accused person, Wahab Alao testified in his defence and called no witness.

The trial court allowed the defence counsel to address it. The defence counsel relied heavily on the confessional statements said to be made by the accused persons. The defence, in a nutshell, stated that the confessional statements of the accused persons retracted their statements. In addition they highlighted the fact that the “identification parade” conducted by the prosecution was a sham and baseless. It was submitted that the 3rd accused person, Wahab Alao was never identified during the identification parade. This submission goes further to say that the 3rd accused person was not even identified by anybody even in court. The learned counsel for the 3rd accused person, Mr. N. Dike, further submitted that none of the prosecution witness has testified to the effect that the accused persons, all of them, particularly the 3rd accused person was in Ibadan on the day of the incident i.e. 18/11/1994. He was therefore pleading Alibi. He then urged the trial court to hold that there is no evidence against the 3rd accused person, and that Exhibit P cannot be a confessional statement. All in all, the defence, through their respective counsel urged the trial court to discharge and acquit all the accused persons.

The trial court in its considered judgment at pages 88-108, delivered its judgment in which FATAI BUSARI, MUMINI ADISA and WAHAB ALAO were found guilty of the offences charged and convicted. However, before sentence, Osuolale Tijani the 2nd accused person charged was reported dead and his name was accordingly struck out.

On page 108, the trial court, Adeniran J, finally sentenced the three accused persons to death. He has this to say:-

“I have earlier held that the accused persons made confessional statements admitting the commission of the offence. I am convinced beyond any iota of doubt in the light of what I have said above that the three accused persons are guilty of the two counts as charged and they are accordingly convicted. In accordance with Section 1(3) of the Robbery and Firearms (special provisions) Act Cap.398 the sentence of this court upon you, FATAI BUSARI, MUMINI ADISA and WAHAB ALAO is that each of you will be hanged by the neck or executed by firing squard until you be dead. May the Lord have mercy on your soul”

The three (3) convicted persons were not satisfied with the judgment and sentences of the trial court, Adeniran J, appealed to the Court of Appeal, Ibadan Division, and filed a Notice of Appeal containing two (2) grounds of appeal, after the Notice of Appeal was granted in a motion. The grounds are hereby without their particulars, reproduced hereunder as follows:

“1. The learned trial judge erred in law when he convicted the 1st and 4th accused persons/appellants for the offences of conspiracy and armed robbery when the prosecution has failed to prove its case beyond reasonable doubt.

2. The learned trial judge erred in law in failing to properly convict the 1st, 3rd and 4th accused persons (Appellants) as charged.
3. The learned trial judge erred in law and in fact in convicting the accused persons as charged in view of the inherent materials (Sic) contradiction in the evidence of the prosecution witnesses.
4. The learned trial judge erred in law in failing to hold that the failure of the prosecution to produce the case file of the investigation of the incident of 30/1/95 of Crown Chemist by the Challenge Police Station occasioned a miscarriage of justice.
5. The judgment is un-reasonable, unwarranted having regard to the weight of evidence.
6. The learned trial judge erred in law when he admitted the statement of the accused persons made at the Police Station as Exhibit.”

The whole purpose of the appeal by the Appellants is to set aside the conviction and death sentence and to enter an acquittal for the 1st, 2nd and 3rd Appellants.