CaseLaw
Osetola vs. State (2012) CLR 6(k) (SC)
Judgement delivered on June 15th 2012
Brief
Facts
This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on 17th May, 2010, whereby it affirmed the conviction of the appellants for conspiracy to commit armed robbery and attempted armed robbery, by S.A. Oduntan, J, in his judgment delivered on 21st May, 2004 at the Ogun State High Court.
Sometime on the 14th March, 2000 by the complaint of the Attorney General of Ogun State of Nigeria, the appellants and one other had been charged before the State High Court, Holden at Abeokuta, on the following counts:
Count 1
"Lukman Osetola (m), Fatai Tijani (m), Niyi Babatunde (m) and others now at large, on or about the 29th day of December 1996 at Omida, Abeokuta, Ogun State, conspired together to commit the offence of armed robbery contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, Laws of the Federation, 1990."
Count 2
"Lukman Osetola (m), Fatai Tijani (m), and others now at large, on or about the 29th day of December, 1996, at Omida, Abeokuta, Ogun State, while armed with Firearms to wit: gun attempted to rob one Alhaji Sikiru Alao of his money and thereby committed an offence punishable under Section 2(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 - Laws of the Federation of Nigeria, 1990."
The case proceeded to trial. The prosecution called four witnesses and tendered twelve Exhibits including the statements of the appellants. The appellants also testified in their respective defence but did not call any other witness.
The prosecution's case goes thus: that on the 29th December, 1996 at about 8pm, one Abdu Alao (PW2) was in his father's beer shop when three young men on a white Vespa Motorcycle came to the shop. The rider of the motorcycle remained on it, while the other two entered the shop in pretence of being customers who wanted to purchase carton of stout. One of the two men suddenly produced a gun from a plastic bag which he pointed at PW2 to order him to produce all the money that had been made from the day's sales. PW2 told him he did not have the keys to the safe with him, where the money was kept. The men asked for his father and he told them that his father was not around.
The men then spotted PW2’s father who was sitting somewhere outside the shop and then called him into the shop. They introduced themselves as men of the Crime Investigation Department (C.I.D.) Eleweran, Abeokuta. The gun was pointed at him with a demand for the money he had made from the day's sales. PW2's father, Alhaji Sikiru Alao requested his son (PW2), to get the money out from the safe for the men. As PW2 was going to the safe to get the money, his father - Alhaji Sikiru Alao was shot and killed. The men then fled and ran out of the shop to reunite with their partner on the Vespa motorcycle. PW2 ran after them toward the Motorcycle. One of them fell down from their get-away motorcycle while the other two escaped. PW2 struggled with the other man to get him down but he (PW2) was over powered by the man who eventually escaped too into the night. PW2 reported the incident to the Ibara Police Station. One Sergeant Fidelis Bimi was the police officer on duty who obtained PW.2's statement and followed him to the scene of the crime. The lifeless body of PW2's father was later moved to the mortuary that same night for necessary post- mortem examination. Dr. E. A. Sobowale, a Medical Officer (PW.1) carried out the autopsy and reported that PW2's father had a gunshot wound in the chest and died of haemorrhagic shock. The medical report was tendered and admitted as Exhibit A while the statement of PW2 made to the Police officer, PW3 was admitted as Exhibit B. An expired Cartridge found at the scene of the crime was admitted as Exhibit C.
Further investigation continued with PW4 - Corporal Temitayo Adepelumi who on a search of the house of one Mrs. Modinatu Adekoya recovered among other items, the gun said to have been used at the crime in question. The said gun was tendered. PW4 later, between the 6th and 7th January, 1997 arrested the three accused persons including the appellants. He obtained their statements which was said to be confessional. Appellants' counsel objected to the admissibility of the statement. The objection led to the trial court conducting a trial within trial and when the counsel's objections were found to be baseless, the statements were admitted and marked Exhibits I, J and K respectively. Photographs of an identification parade by the police where PW2 identified 1st Accused as the one who shot and killed his father, Alhaji Sikim Alao were admitted as Exhibits G and G1 while the getaway Vespa motorcycle allegedly used by the fleeing armed trio on the night of the incident was admitted as Exhibit P1. PW4 had been led by the 2nd accused/appellant to the house where the Vespa motorcycle was recovered.
At the close of the prosecution's case, the defence opened and each of the appellants testified in defence, but did not call any other witness. While the 1st accused/appellant did not deny being at the scene of the crime on the night of the incident, his evidence was that of an innocent person who had found himself in the wrong place at the wrong time. He stated that he was at work at the Date Joint Restaurant when a man, called Saheed came in to have a drink. He tried to hurry up Saheed and another man by telling them that he needed to go to Ibara, Omida Area of Abeokuta, hence he wanted to close early. Saheed however asked him not to be in a hurry as he was also going to the same area and would give him a ride. He (1st accused/appellant) and Saheed then came out of the Restaurant and boarded a commercial motorcycle popularly referred to as "Okada" and when they got to the shop of Alhaji Sikiru Alao (PW2's father) around 8p.m. on the day of the incident, he disembarked and Saheed asked him to find out the price of a carton of Stout from PW2's father's shop while he (Saheed) would go to the shop of his radio .repairer near PW2's shop. Saheed then came into PW2's shop. And surprisingly he produced a gun from a nylon bag he was carrying and pointed 'the gun at both PW2 and himself (1st accused). Saheed then asked PW2 to bring out money they made on the day's sales but as PW2 began to scream, the attention of a man outside the shop was attracted and the man came into the shop, Saheed ordered him to bring out the money from the day's sales. As the man stood still where he was, Saheed shot him.
1st accused/appellant stated that he did not know Saheed or where he came from as he had only met him twice in the past, the first time being the 24th December, 1996 and on the 29th December, 1996, the day of the incident and that if he saw him he would not be able to recognize him. He denied knowing anyone connected with the incident. 2nd accused also denied the charge and stated that he knew nothing about the offence. While admitting that he was a commercial motorcyclist who owned a Vespa motorcycle but which colour he gave as red, he denied carrying any passenger to Ibara Omida on the 29th December, 1996, the day of the incident. He admitted making a confessional statement but stated he did so under torture.
At the close of the hearing in its considered judgment delivered on the 20th May, 2004 the trial court found both appellants guilty as charged, convicted and sentenced each of them on Count 1 to death and on Count 2 to life imprisonment.
Dissatisfied with the judgment of the trial court, the two convicts appealed to the court below, both against the ruling on the trial within trial delivered on the 21st February, 2003 and the final judgment delivered on 21st May, 2004.
The court below allowed the appeal in part. Though the trial court was found to have rightly found the two appellants guilty of the two counts charge, the death sentence passed on the appellants was quashed by the court below in respect of count 1 and substituted for life imprisonment. The sentences were to take effect from the 24th May, 2004 when the trial court delivered final judgment.
Further dissatisfied with the decision of the court below, in affirming the conviction, each of the appellants appealed to this court.