The appellant herein was one of the defendants arraigned before the High Court of Justice, Holden at Ado-Ekiti, Ekiti State (trial court) on a 4 count charge of conspiracy to commit murder, murder (in two instances) and Armed Robbery alleged to have been committed on different dates, contrary to Sections 324, 316 respectively, of the Criminal Code Act, Cap C38 Vol. 14, Laws of the Federal Republic of Nigeria, 2004 and Section 1(2)(a) of the Robbery and Firearms (special provisions) Act, Cap R11 Vol. 14, Laws of the Federal Republic of Nigeria, 2004. Each of the defendants pleaded not guilty to any of the charges. Full trial was conducted and at the end, the learned trial judge discharged and acquitted the appellant in respect of the offences of armed robbery in counts 1 and 2. He found each of the two other accused/defendants charged along with the appellant, guilty as charged. He sentenced them to death by hanging. The learned trial judge also found the appellant and each of the other two defendants guilty as charged on counts 3 and 4. He sentenced each of them to death by hanging. The appellant appealed to the court below against his Conviction and sentence. After reviewing the proceedings of the trial court, the court below affirmed the decision of the trial court.
Dissatisfied further, the appellant filed his appeal to this court on seven (7) grounds of Appeal.
My noble lordships, it is my belief that it is always better to have a comprehensive understanding of the facts giving rise to a dispute at the initial stage of the case thus, I affording one, a clear picture of what really took place in its relationship with the law and evidence applied or to be applied. At the initial stage and on the information sheet, names of four (4) accused persons were presented to the trial court: (i) Kolade O‘lajide Fowosere (ii) Owhoorise Blessing (iii) Ogundare Oji Peter and (iv) Sunkanmi Falaye. On the first day of arraignment, 1st -3rd accused persons were present in court. The 4th accused, Sunkanmi Falaye, was absent. Learned counsel for the prosecution Mr. Oluwaseun Fasote (a legal officer for the state) informed the trial court that the 4th accused was granted bail in the Magistrate court.
The 1st -3rd accused were reproduced from the prison custody. Learned counsel for the accused person Mr. Omokhafe then applied for adjournment to enable him to cross-check at the Magistrate court to know what had become of the 4th accused. The case was adjourned to 10/07/2012 for hearing. On the 10/07/2012, 1st -3rd accused were in court. The 4th accused was again absent. The learned prosecuting counsel, Mr. Fasote, applied to withdraw the charge against the 4th accused person so as to allow prosecution to proceed against the 3 accused persons. Application was granted by the trial court and the name of 4th accused person Sunkanmi Falaye was struck out from the information sheet.
Trial commenced on the 11th day of February, 2013 with PW1 giving her evidence. She gave an eye witness account of what happened on the 20th day of July, 2011. A cursory glimpse at the facts narrated by PW1, is enough to lay the factual foundation of the case. Olufowobe Segun (Mr. Segun for short) was the husband to PW1 Sherifat Oluwofobe. They were living at Moferere, Ado-Ekiti. Mr. Segun was a policeman attached to Okesho Police Station. On the 20th of July, 2011, she was at home cooking in the kitchen. Mr. Segun and the children were in the parlour, waiting for food to eat. PW1 continued:
“My children said they wanted tea; I went out and poured away the water I used to cook I didn’t lock the door. I just shut it. I suddenly heard banging on the door. When they entered they asked me to kneel down. I knelt down; there is a door that links our parlour to the kitchen so I opened so that I can see the kitchen.
They asked for my husband, my husband had removed his uniform and was with his children. When they asked me I was shouting in Yoruba: “Segun Kilose” “Segun Kilose” meaning ”Segun? What has he done? “Segun? What has he done?
He must have heard my voice because I heard him trying to cook his gun. When I know he must have prepared, l replied them that he was inside.
Two of them remained with me in the kitchen while one went inside and shot him. He also shot back at his assailant.
Only three people entered into the kitchen that night. The light from the sitting room extended to the kitchen so that l could clearly see.
I knelt down at the door of the kitchen when the two robbers who were with me heard my husband’s gunshot they ran away. The one my husband shot in return also staggered out.
They wore face mask that night. I could only see their eyeballs. I could not recognize them. I could only see their eyes.
There was nobody I could call. I went out and asked my son to stay with his father, I shouted for help, nobody came out but I went to a policeman living nearby, I explained to him and returned home.
I can’t recollect his name but he was a senior to my husband. The name of my first born is Olufowobi Bolanle.
A man offered to help us carry him to hospital; the police parade came and asked that he should be put in their vehicle. He was not dead then, I was with him.
When we got to the State Hospital, they were on strike. He was not breathing well l was telling the policeman in the front that “Ahmed he was not breathing well.”
As l was speaking to him he was gesticulating to me. We went, to two other different hospitals. I can’t remember their names. They refused. We then came back to State Hospital. When we got there I don’t know if the police knew then that my husband had died. They asked me to get out. I went and plead with those on duty at the hospital that they should help.
I didn’t know he had died. The gateman asked us to go to the Teaching Hospital, lfe. I kept on begging. The gateman now told us that some people just came now; they brought a man who was alleged to have been shot with a policeman and were asked to go to ldo.
I asked how the people looked like. They described that two of them are tall and one short. I then told a policeman behind me that those were the people that shot my husband.
The gateman told me that three people came. The Supol who came when they didn’t want to allow us into the hospital then asked where that other person was shot, the gateman replied that the man was shot in the chest which tallied with what I had already told him earlier on.
The police officer then called his superior. I heard instructions been given that those people should be traced to Teaching Hospital, lfe.
Before that time, the gateman told me that the people who brought the gunshot victim said they had already gone to ldo before.
After, I took my children to the house of the policeman living near our house. I can’t remember his name because my husband was always calling him “Oga‘. “
After we left the State Hospital, the police took me to Ologede Police Station. When we got there it was around 7am.
At Ologede, l made a statement the next day they went to my house and looked at everything. They ‘ saw blood on the pillow and asked me what happened. i replied that I was the one who collected the gun from my husband. They collected the gun and searched our house. They took me back to Ologede station, newsman came and Supols came from their headquarters, and again went to the scene of the crime.
At ologede, they asked me several questions, what the people looked like, whether they asked any question from my husband before they snot him. After he was shot, he bled a lot. When I wanted to carry him, he said I should leave him. When my husband shot the robber, he fell down and tried to take my husband’s gun but could not. I later grabbed the gun.
The police took the pictures of the scene of crime. The next day after my husband was buried; the police invited me to Ado having arrested two of the accused. I had heard earlier on that the one my husband shot had died, I later heard he did not die.
At the police headquarters the Accused admitted that they were the one who killed my husband.
It was the IPO who invited me. I can’t remember his name. I was there when they questioned the accused. The people I saw at the CID that day, I saw the third accused that day. “
fter the completion of trial, the learned trial judge delivered his judgment. He found the appellant guilty of the offences charged i.e. conspiracy and murder. He sentenced the appellant to fourteen years imprisonment and death by hanging, respectively. On appeal to the court below, that court affirmed the decision of the trial court.
APPELLANT’S ISSUES FOR DETERMINATION
Having filed and exchanged briefs of argument in this court, issues were set out in each party’s brief of argument. Learned counsel for the appellant formulated the following issues for determination of the appeal:
i. “Whether the learned Justices of the Court of Appeal were right to have found that the appellant and his co-accused invaded the premises of the deceased with the sole intention to kill and not to rob .
ii. if issue one is answered in the negative, whether in the light of the evidence led before the trial court, the learned justices of the Court of Appeal rightly affirmed the appellant’s conviction for the offences of murder and conspiracy to murder? [Grounds 3, 4, 5, 6 and 7. “
Appellant’s issue No.1 which corresponds with respondent‘s issue No. (a) Is on whether the court below was right to have found that the appellant and his co-accused invaded the deceased’s premises with the sole intention to kill and not to rob him.
Learned counsel for the appellant submitted that the court below was wrong in its conclusion that the sole intention of the appellant and his co-accused was to kill the deceased. This error, he argued further has serious implication on the eventual decision of the court to affirm the conviction of the appellant for murder.
Learned counsel for the appellant argued further that the court, below was wrong to hold that the appellant did not challenge finding of trial court on circumstantial evidence. The trial court, he argued, relied on circumstantial evidence in convicting the appellant. A complaint against the evidential basis for the conviction of the appellant is thus a complaint against the trial court‘s reliance on circumstantial evidence.
The learned justice of the court of appeal therefore, misdirected themselves when they held that there was no complaint against the trial judge’s reliance on circumstantial evidence in the conviction of the appellant. The circumstantial evidence relied upon by the trial court falls short of the standard of the law. He cited the case of Shehu v. The state (2010) LPELR 3041.
Learned counsel argued further that the appellant did not in Exhbit ‘l’ admit or Confess to the ingredients of murder as the appellant made no confessional statement upon which the courts rely. He cited the cases of Azabade v. State (2014) LPELR 2304; Haruna v. Attorney General of the Federation (2012) LPELR 7821; State v. Enabosi (1966) 2 All NLR 116. Learned counsel urged this court to resolve this issue in favour of the appellant.
Thus, PW1 said it all! The appellant and his co-accused certainly went to the deceased and nothing else! They did not say anything or show anything to suggest anything contrary. Although learned counsel for the appellant was suggesting, and coming up with new terminology which he called “robbery gone wrong not an assassination.” He failed to educate the court on what that jargon means. In the first place, there was no charge against the appellant on any “robbery gone wrong.” And whether a robbery has gone wrong or not, it still remains a criminal offence under the laws of this country. Robbery gone wrong, whatever it means, cannot take the place of murder known to our Penal systems. Luckily, the prosecution kept to its duty of proving the known offences of conspiracy and murder which were both established “against the appellant. Both were proved beyond reasonable doubt. The appellant must be prepared to bear the consequences of his acts.
l find no reason to tamper with the concurrent decisions of the two lower courts which I affirm. The appeal certainly lacks merit and it is hereby dismissed.
Ibrahlm Tanko Muhammad, Justice, Supreme Court.
O. O. Ogundare with him; 0. O. Owotumi; O. A. Ademipekun and B. F. Adeyeye for the appellant
K[olapo Kolade (A-G Ekiti state) with him: justice Omogbemeh, ESQ. for respondent