Ogunye V State (1999)

LAWGLOBAL HUB Lead Judgment Report

A. I. IGUH, J.S.C

The appellants, Pele Ogunye, Ayinde Liwo, Fabian Muoka , Kamsela Kilado and Mohammed Hassan along with two others were on the 1st day of March, 1984 jointly arraigned before the High Court of Lagos State, holden at Ikeja, charged in count one with the offence of conspiracy to commit armed robbery contrary to section 403 of the Criminal Code Law. Cap. 31. Laws of Lagos State, 1973 and in count two with armed robbery contrary to section 402 of the said Law.

The particulars of the offences charged are as follows:

1st Count

Particulars of offence

“(1). Pele Ogunye (m) (2), Ayinde Liwo (m) (3). Fibian Muoka (m) (4). Kamsela Kilado (m) (5). Mohammed Hassan (m) (6). Yerima Ibrahim (m) (7). Rashidi Asimi (m) on or about the 9th day of September, 1982 at Matori, Mushin, in the Ikeja Judicial Division, conspired together and with other persons unknown to commit armed robbery..”

2nd count

Particulars of offence

“(1). Pele Ogunye (m)(2), Ayinde Liwo (m) (3). Fibian Muoka (m) (4). Kamsela Kilado (m) (5). Mohammed Hassan (m) (6) Yerima Ibrahim (m) (7). Rashidi Asani (m) on or about the 9th day of September, 1982 at Matori, Mushin, in the Ikeja Judicial Division, being armed with offensive weapons to wit: matchets, iron rods e.t.c robbed Rabiu Jimoh of twenty bales of stockfish valued at N8,800.00 property of Church gate Nigeria Limited.”

Each of the accused persons pleaded not guilty to the charge and the prosecution called a total of 15 witnesses at the trial. The 6th accused person, Yerima Ibrahim , in the course of the trial, was reported dead on the 28th May, 1985. The case against him was thereupon terminated but the rest of the accused persons gave evidence in their own defence but called no witnesses.

The substance of the case as presented by the prosecution is clear and straight forward. This is that in the night of the 8th September, 1982, the accused persons, along with others now at large and armed with dangerous weapons which included matchets and cutlasses invaded and violently broke into the walled premises of the complainant. Churchgate Nigeria Limited at Matori, Mushin, Lagos. According to P.W.2, Rabiu Jimoh, one of the security men on duty in the premises of the complainant, he heard the sound of iron being cut or sawn. This was at night in the early hours of the 9th September, 1985. He came out from the office where he was and observed that the front iron gate of their premises had been cut and forced open. He saw a group of men rushing into their premises. He suspected that they were robbers and, consequently, he raised an alarm. He was shouting “ole. ole”, meaning “thief, thief” and calling for help. These men then attacked and stabbed him with a knife at his upper left arm. Members of the gang were armed with daggers, matchets, cutlasses, iron cutters and diggers. His colleague, Mumuni, who at all material times was on night guard, and himself were over-powered, their hands were tied behind their backs with ropes and they were savagely beaten up by the robbers. These men next drove the two Bedford lorries they came with into the complainant’s premises and stationed a third vehicle outside the gate of the compound. Thereafter, the robbers commenced to load the complainant’s bales of stockfish which were stored inside the warehouse into their vehicle.

As this operation went on, the police arrived at the scene and ordered the gang to surrender themselves or be shot dead. Apparently, one of the security men called Yakubu had on sighting the robber escaped and ran to report the robbery to a team of policemen on duty at the nearby Ladipo police checkpoint. Some of the robbers managed to escape by jumping over the wall fence of the premises. The police were however able to arrest 5 members of the gang on the spot inside the premises. P.W.2 and Mumuni were subsequently rescued and untied by the police. They were taken to the hospital by the police for medical treatment. The 1st, 2nd. 3rd and 4th accused persons were among the five members of the gang that were arrested by the police in the warehouse of Church gate Nigeria Limited in the night of the incident. The 5th, 6th and 7th accused persons were subsequently arrested by the police on information received. All seven suspects were arraigned before the court.

The case for the defence was a total denial of the charge. Statements, some of which were confessional in nature, were taken from them and received in evidence at their trial. Each of the accused persons denied being participes criminis in the commission of the offences or either of them. They variously denied making the confessional statements credited to them and maintained that they were neither at the scene of crime nor were they arrested in the premises of Church gate Nigeria Limited as testified to by the prosecution.

The learned trial Judge, Ubadina, J., after a careful and exhaustive review of the evidence on the 19th day of December, 1985 found the 7th accused person not guilty of the offences charged and accordingly acquitted and discharged him. The 1st, 2nd, 3rd, 4th and 5th accused persons were, however, convicted on both counts of the information and were accordingly sentenced to death by hanging as prescribed by law. In his finding, the learned trial Judge accepted the evidence of the prosecution witnesses against the convicted accused persons. He was satisfied that they were not only present at the scene but that they were participes criminis in the commission of the crime of which they were charged. He rejected their plea of alibi and dismissed their claims of non-participation in the commission of the offences in issue.