Mufutau Aremu & Anor V. The State (1991)
LawGlobal-Hub Lead Judgment Report
P. K. NWOKEDI, J.S.C
The appellants were charged before the Ikeja High Court in Lagos State, with the offence of armed robbery, contrary to section 402(2)(a) of the Criminal Code of Lagos State. The particulars of the offence show that, “on or about the 8th day of January, 1983, at Oshodi, in Ikeja Judicial Division, being armed with offensive weapons, to wit cutlass, robbed one Olayinka Ojikutu of his 504 Peugeot car with registration number LA 30 MA”.
The prosecution called five witnesses in proof of its case. Each appellant gave evidence in his defence but called no witness. The case for the prosecution was that on 8th January, 1983, at about 8.30p.m, the PW1 (Olayinka Ojikutu), the owner of the 504 Peugeot car Number LA 30 MA, and PW2 his passenger, were attacked by a gang of four persons, all armed with cutlasses, at a point along Oshodi/Apapa Expressway. The appellants were members of this gang. They surrounded the said car and smashed its windscreen.
As the PW1 tried to get out of the car, the second appellant gave him matchet cuts on various parts of his body. The PW1 and PW2 managed to escape from this vicious attack. Two of the assailants entered the vehicle of PW1 and made away with it. The other two made their escape in a get away taxi cab which they had used to partially block the road, thus compelling the PW1 to slow down at the scene of the crime. PW1 stated that he was able to identify the two appellants at the scene of the attack because the area was properly illuminated and he had the headlights of his car on.
PW2 also identified the appellants as the two that jumped into the car of the PW1 and then drove off. PW1 was taken to hospital by PW2. Both, later the same day, reported the incident at Oshodi Police Station. The following day, at about 9.00 a.m, at the border town of Idiroko, the stolen car and another, were halted by a Customs Officer for checking and identification. The route taken by the two cars was an unauthorized route to the Benin Republic. The first appellant was driving the stolen car. He was led by a taxi cab in which the second appellant was travelling. The two were together traveling to the Republic of Benin. The Customs Officer, who testified as PW4, demanded the particulars of the two vehicles.
The second accused alighted from the taxi cab and requested the customs Officer to allow them free passage as they were driving to Ifonyin market. As PW4 insisted on the particulars of the two vehicles, the second appellant produced the particulars of the Peugeot 504 with Registration LA 30 MA, driven by the first appellant. He could not produce the particulars of the Datsun taxi cab in which he was travelling. PW4 still demanded to see the particulars of the taxi cab. At this stage, the driver of the said taxi cab took off in his vehicle and escaped into the Republic of Benin. The first appellant tried to escape but was apprehended after a chase.
The appellants were arrested by PW4 and handed over to the Idiroko Customs office together with the vehicle Peugeot 504 No. LA 30 MA. The case was later transferred by the Idiroko Police to the Ikeja Police and then to the State C.I.D. On 9/1/83, the PW4 contacted the PWI and informed him of the recovery of his car. PW1 and PW2 travelled with PW4 to Idiroko, where PW1 identified his vehicle. PW1 claimed to have identified the appellants at the Ipokia hospital in Idiroko. PW2 claimed to have seen the appellants in the Police cell at Idiroko. At the State C.I.D, each appellant made a voluntary statement which was confessional. Each was taken before a superior Police Officer and each confirmed his statement was correctly recorded.
The two statements were admitted in evidence without any objection, as Exhibits A and B for the first and second appellants respectively. The statements were recorded by PW5, a Police Sergeant attached to the State C.I.D. Each statement gave a detailed account of the preparations for the robbery and the actual robbery itself, confirming substantially the evidence as to the manner and mode of the attack as testified by PW1 and PW2, and the arrest of the appellants at Idiroko as recounted by the PW4.
In their defence at the trial, each appellant gave evidence on oath and denied the charge. The first appellant stated that he was hired by one Alhaji, whom he did not know, to drive the Peugeot 504 car to Ifonyin Market, while the Alhaji himself would drive the taxi cab. They took off from Agege. The Alhaji led the way in a taxi cab and he followed, driving the said Peugeot car. When they were accosted by the PW4, the Alhaji gave the particulars of the taxi cab to the PW4. The Alhaji took from him the particulars of the Peugeot car and handed same over to the PW4. The Alhaji then entered the taxi cab and drove away, after some discussions with PW4. He denied making Exhibit A at the State C.I.D. He claimed that he made statements at the Idiroko Police Station and to a Customs official. The second appellant also denied the charge. His evidence was that he was a passenger in an Urvan bus travelling to Ifonyin market to make purchases.
He had alighted from the vehicle to ease himself. Before he had finished, the bus had departed. As he wanted to board another bus, Customs Officials arrested him because he had refused to give them some money. He also denied making Exhibit B and like his co-appellant, stated that he made a statement to the Police at Idiroko. Each appellant denied knowing the other, before their arrest at Idiroko. As to their movements on 8/1/83, the first appellant stated, under cross-examination, that he was in his home at about 6.45 p.m. The second appellant testified also in cross-examination stating “I went to work on 8/1/83 to paint a shop at Ketu and I came home immediately I finished the work.”
The learned trial Judge carefully considered the evidence led by the prosecution and the defence. He disregarded the evidence of the PW1 and PW2 on the identification of the appellants because the circumstances of the identification were in his view irregular. The usual identification parade he held, would have been employed in the case. Except for this, as already stated, he accepted the evidence led by the prosecution and rejected that of the defence.
He relied on the confessional statements of the appellants, Exhibits A and B, which he held corroborated the evidence of the PW4. He held that the appellants being found in possession of the vehicle within 12 hours of the same having been stolen, were presumed under section 148(a) of the Evidence Act, to be the thieves that stole the vehicle. The learned Judge found each appellant guilty as charged and sentenced each to death. Naturally dissatisfied with the conviction and sentence, the appellants appealed to the Court of Appeal. The issues set down for determination in the Court of Appeal by the appellants based on their five grounds of appeal were as follows:
“1. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death whilst relying upon irreconcilable and contradictory testimonies of the prosecution witnesses and when no explanation was offered by the prosecution for such material contradiction. 2. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death without first considering in detail the defence of Alibi set up by the appellants. 3. Whether the learned trial judge was right when he held that the second appellant was within the meaning and purport of section 148(a) of the Evidence Act in “recent possession” of the alleged stolen vehicle.
4. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death whilst relying on Exhibits “A” and “B” when in fact the whole of the purported confessional statements were never tendered in evidence by the prosecution. 5. Whether the learned trial Judge was right to have convicted the appellants of the offence of armed robbery when no offensive weapon not any medical card/report was tendered in evidence by the prosecution offered for their non-production”. The Respondent also set down the following issues for determination.
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