IN THE HIGH COURT OF JUSTICE OF KWARA STATE OF NIGERIA IN THE ILORIN JUDICIAL DIVISION, HOLDEN AT ILORIN
ON WEDNESDAY THE 16TH DAY OF MARCH, 2016
BEFORE HIS LORDSHIP: HON. JUSTICE M. A FOLAYAN – JUDGE
SUIT NO. KWS/7C/2015
BETWEEN:
THE STATE ………………………………………………………… COMPLAINANT
AND
TOPE ADESOYE …………………………………………………… ACCUSED
JUDGMENT
This accused person is standing trial before this court charged with 3 offences. By the leave of this court granted on the 16/2/2016, before adoption of final written addresses the prosecution amended counts 1 and 2 of the 3 earlier charges read to the accused without calling further witness(es). The plea of the accused person was once again taken after reading the counts 1 and 2 of the charges to him, to which he pleaded not guilty.
The accused person is charged with the following 3 counts charges:-
Amended Count one
That you Tope Adesoye along with two (2) others (at large) on or about 5/9/2014 at Agamo, GRA. Omu-Aran, Kwara State within the jurisdiction of this honourable court, conspired to commit an illegal act to wit; while armed with gun, conspired to rob one Engr. John Ogundipe, Deborah Ogundipe and Olaoye Lydia and dispossessed them of their money and other valuable and thereby committed an offence contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) act Cap R11 Laws of Federation of Nigeria 2004.
Amended Count two
That you Tope Adesoye along with two others (at large) on or about 5/9/2014 at Agamo, GRA. Omu-Aran, Kwara State within the jurisdiction of this honourable court while armed with gun robbed one Engr. John Ogundipe, Deborah Ogundipe and Olaoye Lydia and dispossessed them of their money and other valuable and thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004.
Count Three
That you Tope Adesoye with two others (at large) on or about 5/9/2014, between Ilorin/Ajase-Ipo road, Kwara State, within the jurisdiction of this Honourable Court committed an illegal act to wit; was found to be in illegal possession of firearms and you thereby committed an offence contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004.
By two separate applications filed on 25/5/2015 and 21/7/2015 respectively two additional witnesses were added to the number of witnesses contained in the list of witnesses in the proof of evidence. The added names are Rasheed Azeez of Ogidi, Ansaru Area Ilorin a taxi driver, and one Dcns Ogundipe Deborah.
Hearing commenced on the 22/7/2015 and altogether the prosecution called 8 witnesses and closed their case on 14/12/2015. The accused opened his defence on 12/1/2016 by testifying as the lone witness for defence. The final written addresses were filed and adopted on 16/2/16.
The prosecution opened their case with the evidence of Exhibit keeper who tendered the following.
1. Two cut to size sort guns
2. Nine cartridges
3. Criminal charm and
4. A sum of N88,000.00
Without objection the above mentioned items were admitted and marked exhibits 1 – 4 respectively. When cross examined the exhibit keeper, one Sgt Godday Sunday said he had been an Exhibit Keeper for the past 3 years and had been transferred to SARS office since 2011. He admitted that they didn’t send the gun for ballistic examination and he is not a ballistic expert.
PW2 is a commercial taxi driver called Rasheedi Azeez. He said on 6/9/2014 as a taxi driver, he drove round Ilorin but there was no passenger, so he decided to go to Omu-Aran. At Omu-Aran he turned at a Roundabout near a petrol station and started calling for Ilorin passengers. He first got a person going to Ilorin, another two people going to Oke-Onigbin, and later a motorcycle (Okada) brought two people of which this accused was one of the two, the two of them said they were going to Ilorin. He decided to start going with the hope that he would get the remaining one passenger on the way.
After dropping the two passengers going to Oke-Onigbin, they remained 4 in the taxi cab from Oke-Onigbin coming to Ilorin. On getting to Amayo, they saw the Police Special Anti Robbery Scud (SARS) who stopped them and he parked, the time was around 8pm.
The PW3 is one Felicia Ajiboye who said 3 men arrived at their home at GRA Omu-Atan at about 7.30p.m on 5/9/2014. She had 2 female (daughters) making 3 of them in the house when the robbers came. They were told to lie faced down on the floor. The 3 boys demanded for the money brought into the house, the girls told them they were not aware if any money was brought in, they started punishing them girls, they pointed their gun at one of the girls and she started begging them and asked them to search the house. They boys searched the house, found the money and took it away. The 3rd day, the police brought some people and she identified this accused.
After dropping him, they went back to the petrol station. At about 8.30pm, one of her children and a neighbour came to the petrol station to tell her that there were robbers in their house, they told her not to go home because the robbers told them they would be waiting for her. Her husband called the Area Commander and the DPO who went straight to their house. They later called them tat the robbers had left. When she got home she saw that they have scattered everything in the house. The 3rd day, the police brought some people and she could recognise this accused (Tope) among them because he has worked for her before at the Landmark to mould blocks when she was executing a contract. This accused was the 1st to call her and asked whether she could not recognise him again, he told her they were 3 and that they had shared the money and the police had taken his own share from him. The total money she brought home that was stole was N646,000.00. It was about 5 years since she saw the accused last, she knows his face was familiar, but he was the one that reminded her that he was among the people that mould blocks for her at Landmark. She said the 3 people the robbers met at home were her mother and her two daughters, Mary and Lydia…
In view of the argument of the learned defence counsel on the evidence of PW2, it is necessary to reproduce PW2’s evidence as recorded by the court; “When we got to Amoyo the police (SARS) stopped us and I parked, it was around 8pm. They flashed their torchlight into they car and ordered al of us to come down. We were asked to put our hands up and our bodies were searched. The two boys (this accused and his friend) were sitting at the back of the car, they were searched also and they found money on them. They police asked who was the owner of the Bagco bag at the back of car and the boys (accused) said they are the owner. The police poured the content of the bag on the ground and there were two guns. The other boy (the accused friend) took to his ells and he was cashed by the police but he finally escaped, this accused was already being held”.
This is also the evidence of PW6 reproduced hereunder; “…The two passengers at the back seat didn’t want to come out. I opened the door of the back seat. I saw that the two men were reluctant to come out. This accused was holding between his tow legs a sack. When he came out I asked him who is the owner of the bag and this accused said he is the owner. I asked him to bring it out and he brought it out and I opened it. I saw one rag covering the content of the sack, I told him to pour the content on the floor. In that process, the person sitting with the accused on the back seat jumped into the bush and ran away.”
With the evidence of PW2 and PW6 reproduced above it will be wrong and misleading to say that none of the prosecution witnesses testified that the guns were found in possession of the accused. The version of the PW2’s evidence reproduced and quoted by the learned defence counsel is not correctly quoted and it is misleading. The prosecution evidence establishing that the Bagco bag or sack containing exhibits 1, 1A 2, 3 and 4 was found with the accused has proved the case of possession beyond reasonable doubt against the accused. Exhibits 1 and 1A are two guns, Exhibits 2 are 9 cartridges Exhibit 3 is a sum of 88,000.00 and Exhibit 4 is a charm.
I agree with the learned defence counsel that the nature of proof required under Section 3(1) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004, makes it necessary for an expert’s evidence to establish that the guns found in possession of the accused are indeed Firearms within the meaning or definition of the offence under the law. The prosecution did not call expert evidence to show that Exhibits 1 and 1A are lethal weapon that can shoot pellet or missile. This court by merely looking at exhibits 1 and 1A cannot determine that it is a Firearm within the meaning of Firearms Act. I therefore hold that the 3rd count charge of being in possession of Firearms has not been proved beyond reasonable doubt against the accused. One this charge he is discharged and acquitted for lack of sufficient evidence on the proof of the guns as being Firearms.
One the charge of Criminal Conspiracy and robbery contrary to Section 6 (b) and section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004, in view of my earlier evaluations of the evidence and holdens, I hereby find the two charges of Criminal Conspiracy and armed robbery proved beyond reasonable doubt against the accused person and accordingly he is hereby found guilty and convicted as charged.
HON. JUSTICE M.A FOLAYAN
JUDGE (16/3/16)
Mr. M.O Yusuf (ACSC) with Mr. A.Y. Beki (ACSC), Mr. Abdulsalam and Mr. Pogoson for State
Mr. A.O Oyeyipo (LO) (OPD) for accused.
Court – judgment is read and delivered
HON. JUSTICE M.A FOLAYAN
JUDGE (16/3/16)
