THIS IS A FATAL ERROR
Morufu Bolanle sentenced to death still awaiting execution in Nigeria prison.
Prov 31:8-9. Open your mouth for the speechless, in the cause of all who are appointed to die. 9 Open your mouth, judge righteously, and plead the cause of the poor and needy. In line with this Biblical injunction another case of wrongful conviction has been identified and established by CJMR on Morufu Bolanle an Ibadan Indigene, father of 3 children, an inmate on death row, Ibara prison Abeokuta with suit no.1/23c/99 who was arrested on 23/10/1996 and convicted to death on 23/1/2002.
What do you do where there is no DNA to prove the innocence of a crime? We collect the facts and re examines the court proceedings.
An error not detected during trial can lead to fatal error in judgment. Issues that can not be identified and properly argued before the court of appeal will lead to the same error in Judgment in the court of appeal, taken to the Supreme Court it will lead to the same fatal error.
The whole summary of this case was that 3people committed a crime against 4persons; during the identification parade 3people were variously identified; 2 people were brought to court for trial; after the identification parade it was revealed that Prosecution Witnesses 1, 2,3 and 4 misidentified 3 different people when the p.w4 whose evidence was consider vital and overwhelming misidentified 3people and out of the 3people she identified, only first accused in this trial was arraigned. Out of two accused arraigned, Identified and alleged in this case only one was discharged and acquitted while the other was sentenced to death. The evidence that convicted the accused in this trial was based solely on Identification parade. How then could the first accused be fund guilty under the same umbrella that set other people free? (Those that were set free by police and one that was set free by court) The reasoning of the court to convict the accused person was that: - There was a robbery or series of robberies. That there was Identification parade and the accused was identified with details of his activities.
Based on this reasoning, the defense counsel appeal against the judgment of the High court before the Court of appeal but the Court of appeal up held the reasoning of the trial judge of the High Court. Another defense counsel took up this matter before the Supreme Court in 2008 the Justice of Supreme Court also up held the same reasoning of the High Court and the Appeal Court and hereby re affirmed the death sentence. As the Justice of Supreme Court said “It is not the duty of the Supreme Court to re appraise the Judgment of the court and come to a different conclusion” If this is the position of law who shall be saved? It will be calamitous to abandon Monrufu Bolanle to the final death penalty of the Supreme Court if there is nobody to re-examine this judgment and argue this case from the right perspective.
This is not a fault finding exercise but an attempt to search for true Justice through a thorough inquiry and deep thought on why and what evidence convicted Monrufu Bolanle an inmate on death row in Ibara old prison Abeokuta, Ogun State, Nigeria. This is a detailed account of concise appraisal of judgment that convicted Morufu Bolanle to death 11years ago after 6years of awaiting trial. There are five prosecution witnesses in this case: four victims of the crime and one Investigating Police Officer.
The need for serious attention in this judgment lies on the evidence of the five prosecution witnesses in this trial which must be put to serious thoughtful probe /test because of the gravity of the offence. From the lay man point of view we must be convinced that true testimonies have been rendered in this trial beyond reasonable doubt and that the accused in this trial are the perpetrators of the crime.
AN APPRAISAL OF THE JUDGMENT AND THE SCENARIO IS AS FOLLOWS:
P.W.1 identified three people as the armed robbers that came to rob him. After the parade, one was adjudge by the police to be misidentified, as a result police could not charge him. During the trial, the court faulted the credibility of the evidence against one and convicted the other.
P.W.2 identified two armed robbers that came to rob her. After the parade, one was adjudge by the police to be misidentified, as a result police could not charge him. During the trial, the court admitted the evidence of P.W 2 in favor of second accused and convicted the first accused but Court was silent on where about of the other identified person.
P.W.3 identified three people as the armed robbers that came to rob her. After the parade, one was adjudge by the police to be misidentified, as a result police could not charge him.. During the trial, the court faulted the credibility of the evidence against one and convicted the other but Court was silent on where about of the other identified person.
As the P.W.3 conveyed her evidence in a compulsive and convincing manner that she identified three armed robbers “and if the photograph shows me pointing to any other person other than those identified, then I would be telling lies”. She said further “I saw the two accused in the dock together with the third robber who is not in the court”. If after the parade one was adjudge by the police to be misidentified, as a result police could not charge him and during the trial it was revealed that the two people she identified did not know each other and as a result court freed the other and convicted the other but court was silent on where about of the other third accused, what is the implication of police and court action in those set free? It means she is telling lies.
P.W.4 identified three armed robbers on parade. After the parade police mysteriously left out two from being docked, and the court convicted the other person but the court was silent on where about of the other identified two people.
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The million dollar question that calls for an answer is this, if the court could believe in the evidence of P.W.2, 3, and 4 on the convicted accused, should court not have believed in the evidence of these witnesses on those identified but failed to be arraigned by the police? If police could establish a doubt and misidentification against all the witnesses in this trial after the parade and if court could find fault in the evidence of two witnesses against the second accused during the trial, the whole evidence against the first accused call for a lots of question begging for answers and is therefore resolved as doubtful.
If P.W.4 could render such compulsive and pitiable evidence on the first accused, tell me if the lives of the other two people who were left out of trial would not have been in jeopardy. Or tell me if P.W.2 could render her evidence against the first accused with certainty as the robber that attempted to rape her, what do you expect her to say on the second accused she identified to police that was not in court? We are not disputing the testimonies of P.W.2 and 4 that they were not robbed, raped, or attempted to be raped. They were actually robbed but they have rendered their testimonies in anger and poured their wrath on the wrong person.
We are going to view this case from four angles to enable us see if Justice has been truly meted to the accused in this case. From this court proceedings it is possible to recall the scenario of the trial back to life again for re examining.
FIRST VIEW
- · Out of four witnesses in this trial, it is evident that four of them identified the 1st accused while only two of them P.W.1 & P.W.3 identified 2nd accused as one of the perpetrators of the crime.
SECOND VIEW
- 1. During the trial, it was revealed that the two accused persons arraigned in the dock alleged as the perpetrators did not know each other. As a result, it is impossible to establish a case of conspiracy against the two accused.
- 2. The way of arrest of the second accused was clearly stated in this trial but the court was silent on the way of arrest of the 1st accused.
- 3. Second accused lived on the same street of the incidence. The first accused lived far away to the place of the incidence.
- 4. At the end of the trial, though a serious allegation was made against the both accused persons as among the perpetrators of the crime, but there is no way the prosecution could successfully link the second accused to the crime committed on his street. As a result of this, the second accused was discharged and acquitted.
THIRD VIEW
- 1. How would you describe all the evidence against the 2nd accused person during the trial if actually there was a case of misidentification on the second accused? What would have been the fate of those who were not arraigned if they had been arraigned in the trial? This means they would have been accused in the same way and if possible be convicted.
- 2. The evidence of identification that held 1st accused was the evidence that held 2nd accused. At a level, the 2nd accused was discharged and acquitted based on the opinion of the judge.
Since the judge is in doubt in all the evidence against the 2nd accused, the judge should have extended his doubt in all the evidence against the 1st accused.
FOURTH VIEW
- 1. The 1st accused raised defense that he was on chain during the identification parade. This aspect was argued by the counsel to the 1st accused, which was disregarded by the court. Anybody that is on chain shows that he is a criminal. The accused said police men were among the people identified in parade. P.W.3 Claimed that policemen were among people on parade.
- 2. The counsel to the accused `Prince Adediran Adeyemo in his argument requested that the photograph of the identification parade be tendered in court but the police could not produce the photograph.
- 3. P.W.3 was anxious to see the picture in other to prove to court that she identified all the three armed robbers that came to rob her on the night of the incidence.
- 4. The judge over ruled that the photograph was not necessary because the accused admitted that there was parade and he was identified.(This was a grave error)
OUR ARGUMENT
- 1. The judge should have mandated the policeman to tender the picture, as this would have been possible to know how the identification parade was conducted.
- 2. The picture would have indicated or disapproved the claim of the first accused that he was on leg chain. The picture would have shown us who and who were identified.
- 3. The counsel would have demanded for explanation from the police on the reason why those identified were not charged to court, if the police could convince the court that those people were misidentified, this would have help the court to reason a doubt on the two accused.
- 4. Since the judge based his conviction solely on the evidence of the identification parade to sentence the 1st accused to death, the questions to ask every intelligent observer are these:
- 5. How and where was the first accused arrested? Court was silent about it.
- 6. If police is acting on tip off information, who was the informant or what was the means of information that led police from Iyaganku to ijokodo to effect the arrest of the first accused and linked him to a crime committed in less than 24 hours earlier?
- 7. Is there anything incriminating or part of the property robbed found in the possession of the 1staccused to substantiate the tip off information and thereby corroborate the identification parade to convince the court that he was the culprit?
Permit me to quote from the judgment “The witnesses in company of other policemen, in the course of their investigation visited the scene of crime and the houses of the accused persons, with the accused persons, but that nothing incriminating was found in their houses” Page 8 parag 2.
THE REASONING OF THE COURT FOR CONVICTION
“In my view, considering a fact that light was on during the robbery, the close contact the eye-witnesses had with the robbers, the length of time the eye-witnesses had to observe the robbers, the distance at which the observations were made, the fact that there was no obstruction to impede the observation, the length of time between the first observation and the subsequent identifications at the identification parade and the unsubstantiated allegations of the defense, I am satisfied that the prosecution witnesses whom I saw and heard testify, had the opportunity to observe and identify the robbers, particularly the first accused at the scene of crime. I also believe the prosecution witnesses that the identification parade at Iyaganku was conducted properly and satisfactorily and that the accused persons were properly identified by the witnesses. In this case the victims of the crime not only gave evidence that they saw the accused persons during the robbery operation, but also went ahead to identify them at the identification parade”.
SHALL WE PUT THE IDENTIFICATION PARADE ON ACID TEST OF JUSTICE?.
If the P.W.1 identified 3people on the parade ground and he found 2people in the dock and he claimed that they were part of those that came to rob him, where is the third person? Who was the third person? If the policeman after the identification parade admitted that the P.W. 1 has misidentified a person, perhaps the third person is a police man or civilian and they could not charge him along with the accused , how are we sure that the two accused in the dock are not misidentified? If a case of misidentification can be established against the P.W1 over the unarraigned identified person by the police and in the process of trial court discovered that the two accused did not know each other do we admit the evidence of P.W.1 as valid enough to convict the first accused?
If P.W.2 identified 3people on the parade ground and she saw two people on the dock and identified only one person as among the robbers that robbed her, where was the third person? Who was the third person? If the policeman after the identification parade admitted that the P.W. 2 has misidentified the wrong person, perhaps the third person is a police man or a civilian and they could not charge him along with the accused, how are we sure that the accused in the dock is the right person? P.W 1 the father of P.W 2 Identified 2nd accused as one of the robbers P.W.2 contradicted her father’s evidence. She identified second accused as one of their neighbors of which the second accused during his defense also stated that he was a neighbor and classmate to the son of the P.W.1 in the same school and more over P.W1 has seen him at the station before Identification parade. The question goes again. If during the trial, the court admitted the testimony of P.W.2 on identification on the second accused, would court not have believe the evidence of P.W.2 on the unarraigned third person identified? Do we admit the evidence of P.W.2 as valid enough to convict the first accused?
If P.w.3 identified 3people on parade ground and identified two people in the dock, where is the third person? Who was he? If police admitted after the parade that the P.W. 3 has misidentified one person, perhaps the third person was a police man or civilian and they could not charge him along with the accused, how are we sure that the two accused in the dock were not misidentified? If a case of misidentification can be established against the P.W3 over the unarraigned identified person by the police and in the process of trial court discovered that the two alleged accused did not know each other do we admit the evidence of P.W.3 as valid enough to convict the first accused?
If P.W.4 identified three people on the parade ground and identified only one person out of two people standing in the dock who are the two people identified? Where are they? If the policeman after the identification parade admitted that the P.W. 4 has misidentified two persons, perhaps the two persons were police men or civilian and they could not charge them along with the accused, how are we sure that the accused person pointed at in the dock was not misidentified? If during the trial the court realized that P.W.4 had identified three people on parade as she claimed, the court should have mandated the policeman to produce or give explanation on the other two people identified. If police could convince the court that the P.W.4 had wrongly identified two people how are we sure that the accused in the dock was not misidentified?
If the court could convict the first accused in this case based on the testimony of the P.W.4 on identification which means the court would have believed the testimony of P.W.4 on those two people if they had been arraigned? How are we sure that the people released by police are not the real criminals?
THE FATAL ERROR
Under section 516 of criminal law “Court may proceed with the trial when a criminal is been arraigned and others are at large”. But what is the position of law when the victims of a crime have identified three suspects and only one or two of them were in court? Should the court proceed with the trial without mandating the police to produce the other people identified or ask of their where about?
If police could resolved doubt on the other person identified by the P.W.2 and on the two people identified by the P.W.4 and they could not be charged or brought to court for further explanation the court should have resolved the same doubt on the first accused and render the testimonies of P.W.2,3 & 4 void and baseless. Please read the case submission of the defense counsel on page 12-14.
An error not detected during trial can lead to fatal error in judgment. Issues that can not be identified and properly argued before the court of appeal will lead to the same error in Judgment in the court of appeal, taken to the Supreme Court it will lead to the same fatal error.
Since the Judge based his conviction of the first accused solely on the Identification parade, we shall use this microscopic eye to detect more error in this Judgment. Compare the evidence of the P.W.1 &2 to the evidence of P.W.3 and P.W.4.
THE TRIAL: AN EXCERPT OF THE EVIDENCE AS RECORDED BY THE COURT.
P.W1 (Abodunrin Fatundimu) “He was also invited by the police to identify some robbers who had been arrested. According to the evidence, the suspects were placed among the three suspects identified, being the robbers that came to his rooms”. That was all he said. Please read page 1&2 of the judgment. He did not specify the role of either of the accused during the operation.
P.W2 (Miss Ruth Fatundimu) After they had entered into her father’s room, they came into her mother’s room, where she was then sleeping with her mother. They gained entrance into her mother’s room door with cutlass. On entering the room, the robbers demanded from her mother money and jewelry and cloths, they removed from her mother the sum of N1,000.00 and in addition assaulted her mother. The 1st accused later took her (witness) out to have sex with her. She was released when she showed him the evidence that she was menstruating at the time. She identified the 1st accused as one of the robbers who came to her mother’s room and attempted to have sexual intercourse with her, while the second robber was not in court. On the 2nd accused; she admitted that before the robbery incident, the 2nd accused was known to her as he was living in Oke-Itunu area, but she maintained with certainty that the 1st accused was one of the robbers. (Where is her mother in this trial?)
P.W 3 (Mrs. Florence Samuel) A tenant with her husband to P.W1. One of the robbers ordered that the door of her room be opened; but when this was not done, the door was broken by the use of big stone thrown at it. The robbers beat her up and unwrapped her wrappers, search all over her body and assaulted her. In all, the three robbers were involved with her and she could identify them because the light was on. She identified in the court room the two accused persons among the robbers. She further claimed “She was invited by the police to identification parade, among who were the two accused persons. As each of them (robbers) was being identified by her, photographs of the identification exercise were taken. It was also stated that each of the witness identified the accused independently and that the third of the robbers she identified had not been charged to court. Page 4 pgph2.
The P.W.3 also said further in her own word as faithfully recorded by the judge “There were about 5 or 6 policemen on the parade ground. When I was identifying the robbers, the police took my photograph; and if (they can tender the photograph) and if the photograph shows me pointing to any other person other than those identified, then I would be telling lies. It is not an after-thought that the two accused were seen in my room. I saw the two accused together with a third robber who is not in court now.” Please see page 28 pgph1. (Where is the third person identified? who was he?)
P.W4 (Miss Bolatito Ayilara) The daughter of the tenant who was living in the premises where the robbery took place has this to say “The door of her mother’s room was broken by the robbers who threw a stone against the door. Three robbers in all first entered her mother’s room, two of them left later, living behind one of them who confronted her mother and took her money and her wrist watch. They beat up her mother and knocked her head with a bottle. She fell down bleeding. She was later taken out of her mother’s room by the 1st accused to the back yard of the house where the 1st accused required her showing him the house of the richest man in the neighborhood. She could not help the 1st accused, she ran away from him. He pursued her and later assaulted and injured her and she was later taken to the room of a neighbors’ tenant where she was raped by the 1st accused person.
Cut in: (Where is the neighbor’s tenant in this trial? Was there a doctor’s report for confirmation that she was actually raped? It is the duty of police to make a proper investigation in this area. An error not detected in this trial can lead to fatal error in Judgment.)
After she was raped by the 1st accused person, she had virginal tears and bled from the injury. (Contrary to her statement to the police, she claimed that three people raped her and she mentioned their names as the three people identified on Identification parade;) on 30th of October, 1996, the police invited her to an identification parade at the police station, Iyaganku. The identification was made up of about 30people including the three accused persons who came to her mother’s room. According to her evidence, the 1st accused whom she identified and pointed to in the dock was the only one among them that was charged to court. (Who are the two people identified? Where are they?)
OVERWHELMING EVIDENCE THAT CONVICTED MONRUFU BOLANLE
Justice is not one way traffic as it favors the victim so also it should favor the accused. At this juncture we must purse to sympathies with the witness 4 for loosing her mother as a result of the attack from the armed robbers, at the same time we must take caution from being raped emotionally by such unsubstantiated testimony as this. Let us replay the court record of the evidence on P.W.4 “The identification was made up of about 30people including the three accused persons who came to her mother’s room. According to her evidence, the 1st accused whom she identified and pointed to in the dock was the only one among them that was charged to court”.
A SECOND LOOK AT THE “OVERWHELMING EVIDENCE”
This is a grave issue that demands a deeper scrutiny. Before we can conclude and convince that the criminal has been apprehended and that the evidence rendered in this trial is faithful and just, we must put the evidence of P.W 4 into serious probe and weigh them in the balance of Truth and Justice.
P.W.4 clearly identified three people that came to her mother’s room to police on parade and these three people were those that fatally wounded her mother to death only to get to court and meet only one of them and claimed that he was the one who raped her. The court was silent on this aspect, the defense counsel was silent on this aspect, that 3 criminals were arrested by police and identified to police and police allowed two of them to go after they had been properly identified and police arraigned only one for trial. Think over this aspect.
The court should have mandated the policeman to produce or give an explanation on the other two people identified at the parade and why they were not arraigned. If police could convince the court that the P.W.4 had wrongly identified two people how are we sure that the accused in the dock was not misidentified? Would P.W 4 not have rendered her detailed testimony on the unarranged two people in the same way if they had being arraigned?
If P.W.4 could render such compulsive and pitiable evidence on the first accused, tell me if the lives of the other two people who were left out of trial would not have been in jeopardy. Or tell me if P.W.2 could render her evidence against the first accused with certainty as the robber that attempted to rape her, what do you expect her to say on the second accused she identified to police that was not in court? We are not disputing the testimonies of P.W.2 and 4 that they were not robbed, raped, or attempted to be raped. They were actually robbed but they have rendered their testimonies in anger and poured their wrath on the wrong person.
As the Court rightly observed “From the cross examination the defense failed to expose any error in the observation, recognition and identification of the accused by the prosecution witnesses either during the robbery operation or at the identification parade” Page 34 of the judgment and Supreme Court monthly (2009)12 (Pt.2) Pg 5 pgr C
It is evident that these people have identified wrong people during the parade and as we may rather belief the testimony of the accused that the police were among the people misidentified, of course that was the main reason why the police could not tender the pictures of the parade.
THE STATE OF LAW IN THIS REGARD BETWEEN DEFENCE COUNSEL AND JUTICE OF SUPREME COURT
The defense counsel submitted that “Where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial judge in favor of one of the accused persons, the same doubt should also be resolved in favor of the other. Consequently if one is discharged and acquitted, the other should also be discharge and acquitted.”
The state of law is quite correct as stated by the learned counsel to the Appellant that “Where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial judge in favor of one of the accused persons, the same doubt should also be resolved in favor of the other. Consequently if one is discharged and acquitted, the other should also be discharge and acquitted.” – Per Mohammed, JSC (Pg 6 paras G-H) (2009)12 (Pt.2) Pg 2 Supreme Court monthly under the sub heading “Principles Considered and held” Item 1.
But the Supreme Court judge in response says “It is not the duty of the Supreme Court to re-appraise evidence and come to a different conclusion”. Instead the Supreme Court upheld the view of the High Court, Court of appeal and re affirmed the death sentence.
A Critical Look at the Court Proceedings; during the cross examination of the witnesses, the counsel to the accused persons raised questions on how the witnesses (P.W.3. & P.W.4.) get to know the names of the accused written on their statements. They denied ever mentioning any name in their statements.
During cross examination with the P.W.5. (The Investigation Police Officer) by the counsel to the accused, the I.P.O clearly told the court that the witnesses P.W.3. & P.W.4 wrote their statement by themselves and put the names of the accused and I quote “Under the cross-examination of the P.W.5, he admitted that the P.W.4 (Bolatito Ayilara) wrote her statement herself and stated therein that robbers (not one) raped her and gave their names. He also admitted that P.W.3. (Mrs. Florence Samuel) was a teacher, wrote her own statement (EXIBIT “C2”) identified Tunde Zegar and Abdu Fatai at the identification parade (but both were not arraigned before the court as they were misidentified). Read Page8 parag3.
From the evidence in this proceeding it is clearly understood that the witnesses were acting out a script where and all the evidences were after-thought and a well calculated attempt to nail the two accused most importantly the first accused to the cross at all cost.
Finally, the P.W.5 (Investigating Police Officer) submitted that in company of other policemen, in the course of their investigation visited the scene of crime and the houses of the accused persons, with the accused persons, but that nothing incriminating was found in their houses.
At this juncture, the police should have raised a question on the whereabouts of the first accused at the night of the incidence. The neighbor and his wife would have established if the accused was at home on that night of the incidence or not. The policeman has proved to the court that he went to the house of the two accused persons for a search. He shouldn’t have stopped there; he would have helped the court to find out the whereabouts of the accused on the night of the incident. In fact the second accused person who was an army officer knew the implication of this that was why his father came to testify during the trial that his son was home on the night of the incidence, while the court was silent on the way of arrest of the first accused and his alibi.
WHY THE 1st ACCUSED WAS CONVICTED?
All the evidences and Identification parade was after they have learned more about the first accused before the parade and before they enter court to give evidence. All the witnesses said they were invited by the policeman to come for identification parade; it is possible for the policemen to have misled the victims that armed robbers have been arrested and as a result of that impression created by the policemen they were speaking in convincing manner in other to make sure that they were convicted.
It is evident that these people have identified wrong people during the parade and as we may rather belief the testimony of the accused that the police were among the people misidentified, of course that was the main reason why the police could not tender the pictures of the parade.
When all legal avenues for redress has failed in this matter, we realized that there is hope somewhere; there is a platform to present our view before his Excellency Senator Abiola Ajimobi who will give us his listening ears and exercise the power of prerogative of mercy to set Monrufu Bolanle free. As a saying goes “It is better for hundreds of guilty people to be set free than for an innocent man to go to jail”
Prov 31:8-9. Open your mouth for the speechless, in the cause of all who are appointed to die. 9 Open your mouth, judge righteously, and plead the cause of the poor and needy.
Lend your voice, lend your time, lend your influence, lend your conscience and money to free the oppressed in Nigeria prisons. Log on to our web site blog www.cjmr-ng.org and face book for your comments and suggestion. Tell your friends about this and encourage them to give their supports.
Hezekiah Deboboye Olujobi
Coordinator for CJMR