FABIAN NWATURUOCHA v. THE STATE
In The Supreme Court of Nigeria
On Friday, the 11th day of March, 2011
SC.197/2010
RATIO
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ROBBERY
It is now firmly established that the essential ingredients of the offence of robbery as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows:-
“(a) That there was a robbery or series of robbery.
(b) That each robbery was an armed robbery.
(c.) That the accused was one of those who robbed.
For the above stated ingredients of the offence of robbery, see as well Bozin v. The State (supra) at 469, Alabi v. The State (supra) at 523 and Awosika & Anr. v. The State (supra) at page 71. PER JOHN AFOLABI FABIYI, J.S.C.
EVIDENCE: MEANING AND NATURE OF THE DEFENCE OF ALIBI
Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yonor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113, Gachi v. The State (1973) 1 NWLR 331; and Odu & Anr v. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668.
In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:-
“There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.”
I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution PER JOHN AFOLABI FABIYI, J.S.C.
APPEAL: ATTITUDE OF THE SUPREME COURT TO DISTURBING CONCURRENT FINDINGS OF TWO LOWER COURTS
The findings of the two courts below in this respect are also concurrent. This court will not disturb same since they are supported by evidence on record and not perverse. See: Nkebisi & Anr. v. The State (2010) 5 NWLR (Pt.1188) 471; Dogo & Ors. v. The State (2001) 1 SCNJ 315. PER JOHN AFOLABI FABIYI, J.S.C.
CRIMINAL LAW: NATURE OF PROOF BEYOND REASONABLE DOUBT
I shall again state it that proof beyond reasonable doubt as evolved by Lord Sankey, L. C. in Woolmington v. DPP (1935) AC 485 is not proof to the hilt’ as stated by Denning, J., as he then was, in Miller v. Minister of pensions (1947) 3 All ER 373. It is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru v’ The State (1999) 2 NWLR (Pt.589) 87 at 98. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise, it will cleave. PER JOHN AFOLABI FABIYI, J.S.C.
JUSTICES
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
Between
FABIAN NWATURUOCHA Appellant(s)
AND
THE STATE Respondent(s)
JOHN AFOLABI FABIYI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Abuja Division (hereafter referred to as ‘the court below’) delivered on 18th February, 2010 which upheld the decision of Bello, J. of the High court of Justice, Abuja Federal Capital Territory delivered on 24th January, 2008. It is apt to note it here that the trial judge convicted and sentenced the appellant to 11 years imprisonment and a fine of N250,000:00 as mandated by the applicable law for the offence of robbery punishable under section 298 of the Penal Code.
At the trial court, the appellant was arraigned for the offence of robbery. The respondent maintained that the appellant robbed one Taye Musa (P.W.1) a driver of his commercial vehicle, Toyota Starlet car with Registration No. AA 4445 ABJ at gun point around 6.30 pm on 22nd October, 2004. On 15/6/05 when the charge was read to the appellant, he pleaded not guilty. The prosecution called two witnesses to substantiate their case. Thereafter, the appellant testified in his own defence and called two other witnesses. In the judgment delivered on 24th January, 2008, the learned trial Judge convicted the appellant and sentenced him as stated above.
The appellant felt unhappy with the stance of the trial judge and appealed to the court below which heard the appeal and found same to be unmeritorious in its own judgment handed out on 18th February, 2010. It dismissed the appeal and affirmed the judgment of the trial judge.
The appellant still felt aggrieved and has decided to appeal to this court. Briefs of argument were duly filed and exchanged by the parties. On 16th of December, 2010 when this appeal was heard, each counsel adopted and relied on the brief of argument filed on behalf of his client.
Two (2) issues formulated for the due determination of the appeal on page 2 of the appellant’s brief of argument read as follows:-
“(i) Whether the prosecution proved the case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the appellant by the Court of Appeal.
(ii) Whether the learned Justices of the Court Appeal misdirected themselves on their evaluation of the evidence with which they found that the appellant did not give a detailed particularization of his whereabouts on the crucial day of the offence, which misdirection in turn, led to a miscarriage of justice to the appellant.”
The above reproduced two issues were adopted by the respondent. I am of the considered view that such a stance is commendable.
Arguing issue (i), learned counsel for the appellant stated the ingredients of the offence of robbery vide the provision of section 296 of the Penal code. He submitted that it is an immutable principle of law that the prosecution must establish the guilt of an accused person beyond reasonable doubt in a criminal case. He asserted that such a duty remains static until discharged by the prosecution. He referred to the case of Ogidi v. The State (2005) 5 M.J.S.C. 155 at 173 – 174.
Learned counsel opined that the critical question begging for an answer is whether the evidence of P.W.1 regarding the recognition of the appellant as the person who robbed him of the commercial car has the potency superimposed on it by both the trial court and the court below. He felt that an identification parade was essential and required in the prevailing circumstance. He cited the cases of Ani v. The State (2009) 6 M.J.J.S.C (Pt.11) 1 at 8; Almu v. The State (2009) 4 M.J.S.C (Pt.11) 147 at 163; Balogun v. Attorney-General Ogun State (2002) 4 M.J.S.C. 45 at 58; R v. Turnbull (1976) 3 Att ER 549 at 552; Ukpabi v. The State (2004) 9 M.J.S.C. 120.
Learned counsel urged the court to find in favour of the appellant by holding that the affirmation of the conviction and sentence of the appellant by the court below is an error of law which led to a miscarriage of justice to the appellant.
On issue (i),learned counsel for the respondent submitted that for the prosecution to secure conviction for the offence charged herein, it must prove that there was robbery; that the robbers were armed and that the appellant was the robber or among the robbers. He cited the cases of Bozin v.The State (1985) 2 NWLR (Pt. 8) 465 at 469, Alabi v. The State (1993) 7 NWLR(Pt. 307)511 at 523; Awosika & Anr.v.The State (2010) 9 NWLR (Pt.1198)49 at 71.
Learned counsel observed that it is not in dispute that there was robbery on 22nd October, 2004 along Usman Dan / Bwari Road, Abuja and that same was accompanied with a dangerous weapon – a gun as discernible from the evidence of the two prosecution witnesses. He felt that the dispute relates to whether the appellant participated in the robbery. Learned counsel maintained that the real question is whether P.W.1 properly and sufficiently recognized the appellant as the person who robbed him of his Toyota Starlet car with Registration No. AA 445 ABJ.
Learned counsel submitted that the evidence of P.W.1 which was not challenged proved the identity of the appellant as the offender and that identification parade was totally unnecessary. He cited the cases of Segun Balogun v. Attorney-General Ogun State (2002) FWLR (Pt.1000) 1287 at 1301; William v.The State (1992) 8 NWLR (Pt.261)515.
Learned counsel submitted that the concurrent findings of trial court and the court below on the identity of the appellant not perverse as they were supported by evidence on the record. He urged the court not to disturb such findings. He cited Sobakin v. The State (1981) 5 SC 75; Moses Jua v. The State (2010) 4 NWLR (Pt.1184) 217 at 260; Attorney-General Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (Pt.1011) 378.
It is now firmly established that the essential ingredients of the offence of robbery as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows:-
“(a) That there was a robbery or series of robbery.
(b) That each robbery was an armed robbery.
(c.) That the accused was one of those who robbed.
For the above stated ingredients of the offence of robbery, see as well Bozin v. The State (supra) at 469, Alabi v. The State (supra) at 523 and Awosika & Anr. v. The State (supra) at page 71.
The issue relating to identification of the appellant by P.W.1, the victim was strenuously canvassed by the learned counsel for the appellant. In most cases of robbery proper identification of the real culprit is very vital. Identification evidence is that which tends to show that the person charged is the same person seen at the locus criminis. See: Sunday Ndidi v. The State (2007) All FWLR (Pt. 381) 1617; Archibong v. The state (2006) 14 NWLR (Pt.1000) 349.
Learned counsel for the appellant seriously contended that an identification parade ought to have been conducted. Usually, there must be real doubt as to who was seen in connection with the offence to require an identification parade. See: Ogoala v. The State (1991) 2 NWLR (Pt.175) 509.
P.W.1 of the offence charged was the only eye witness in this matter. The trial judge believed his testimony and considered him as ‘a witness of truth in words and demeanour’. The witness stated how he bargained and agreed to carry the appellant and the appellant sat in front of the car with him. The appellant asked him to stop in the bush and an argument ensued. When P.W.1 refused to stop, the appellant brought out a gun and pointed it at him. He stopped and the appellant pushed him out; asked him to run into the bush and drove his vehicle away. P.W.1 said he saw he face of the appellant. As the time was around 6.00 pm, he could recognize him very well. P.W.1’s evidence established clearly that appellant committed robbery through extortion.
With the above scenario, it is clear that the findings of the trial court and the court below on the identity of the appellant as the culprit cannot be faulted. P.W.1 recognized him as such. There was no need for the staging of a farcical identification parade in the prevailing circumstance. The concurrent findings of the two courts below are rooted in credible evidence on record and they are not perverse. This court does not make a habit of disturbing such findings. See: Sobakin v. The State (supra); Moses Jua v. The State (supra) at page 260.
I have no hesitation in resolving issue (i) against the appellant and in favour of the respondent. Issue (ii) is whether the learned justices of the Court of Appeal misdirected themselves in their evaluation of the evidence with which they found that the appellant did not give a detailed particularization of his whereabouts on the crucial day of the offence, which misdirection in turn, led to a miscarriage of justice to the appellant.
The issue relates to the plea of alibi put up by appellant. Learned counsel for the appellant felt that client gave sufficient particularization of his whereabouts on the crucial date of the offence charged in establishing his alibi. Learned counsel cited the case of Udoebre v. The State (2001) 5 M.J.S.C. 146 at 156. He urged that the affirmation of the conviction of the appellant by the court below, being erroneous on point of law, should be set aside.
Learned counsel for the respondent on this issue submitted that where an alibi has been raised and there is a visual and positive identification of the accused which is believed by the trial court, the appellate court should not disturb such a finding. He felt that where there is more credible evidence fixing the accused person with the commission of the crime, the defencc of alibi will not avail him. Learned counsel cited the cases of Okon Udo Akpan v. The State (1991) 5 SCNJ 1; Samnel Attah v. The State (2010) 10 NWLR (Pt.1201) 190 at 217; Patrick Njovens & Ors. v The State (1973) All NLR 371 at 401 – 402.
Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yonor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113, Gachi v. The State (1973) 1 NWLR 331; and Odu & Anr v. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668.
In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:-
“There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.”
I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution But in a case like this one where the appellant was identified by P.W.1 without any equivocation, a straight issue of credibility arose. I am unable to say that the learned trial judge’s findings of fact which were backed by the court below were unreasonable or not supported by the evidence on record. If the alibi had been true, it would have been open to and incumbent on the appellant to call his brother, Kingsley to support his plea of alibi. This is more so since P.W.2 stated in her evidence to the hearing of the appellant that “I discovered that the accused went to the house of Kingsley at 8.00p.m and the alleged crime took place around 6.30p.m”. The appellant had the duty to call evidence in proof of where he was around 6.30p.m – the material time on the fateful day.
In short, the trial court and the court below rightly found that the evidence of P.W.1 and P.W.2 was credible and fixed the appellant with the commission of the offence charged. The findings of the two courts below in this respect are also concurrent. This court will not disturb same since they are supported by evidence on record and not perverse. See: Nkebisi & Anr. v. The State (2010) 5 NWLR (Pt.1188) 471; Dogo & Ors. v. The State (2001) 1 SCNJ 315.
The appellant felt that the case against him was not proved beyond reasonable doubt. I shall again state it that proof beyond reasonable doubt as evolved by Lord Sankey, L. C. in Woolmington v. DPP (1935) AC 485 is not proof to the hilt’ as stated by Denning, J., as he then was, in Miller v. Minister of pensions (1947) 3 All ER 373. It is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru v’ The State (1999) 2 NWLR (Pt.589) 87 at 98. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise, it will cleave.
In short, issue (ii) is also resolved against the appellant and in favour of the respondent.
In conclusion, I find that this appeal lacks merit. It is hereby dismissed. The judgment of the court below delivered on 18th February, 2010 which affirmed the conviction and sentence handed down by the trial court on 24th January, 2008 is hereby confirmed.
C. M. CHUKWUMA-ENEH, J.S.C.: I have had the advantage of reading before now the lead judgment prepared and delivered by my learned brother Fabiyi JSC in this matter. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I endorse the orders contained therein.
OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.: I had read before now the judgment just delivered by my brother J. A. Fabiyi, JSC. I agree with his reasoning and conclusion that this appeal lacks merit.
The appellant, Fabian Nwaturuocha was arraigned before the High court of the Federal Vapital Territory, Abuja for armed robbery punishable under Section 298 of the Penal Code.
The particular of the offence reads as follows: –
“That you Fabian Nwaturuocha on or about the 22nd day of October, 2004, along Usman Dam/Bwari Road, Abuja within the jurisdiction of this honourable court robbed at gun point Taye Musa and Temihan Benga of a Toyota Starlet Car with Registration Number AA 445 ABJ and Mazda Car with Registration Number 516 RBC and thereby committed an offence punishable under Section 298 of the Penal Code.”
At the hearing of the case before the trial court, the prosecution now respondent, called two witnesses, the driver who was robbed of the vehicle at gun point and the investigating police officer. The appellant gave evidence and raised the defence of alibi. The learned trial judge found him guilty of the charges. In convicting him, sentenced him to eleven years prison term and a fine of N250,000.00 in addition. The appellant registered his dissatisfaction with the judgment at the Court of Appeal, Abuja. The lower court affirmed his conviction and sentence. He was still aggrieved by the decision of the lower court and that prompted him to appeal to this court.
The ingredients of the offence of Armed Robbery under Section 298 of the Penal Code are: –
1. That the accused committed theft.
2. That he caused and attempted to cause some person
a. Death, hurt or wrongful restraint or
b. Fear of instant death or instant hurt or instant wrongful restraint
3. That he did as above.
a. In committing theft or
b. In order to commit theft or
c. In carrying away or attempting to carry away the property obtained by the theft;
4. That he acted as in (b) above voluntarily or prove
i. That the accused committed extortion
ii. That he was at the time of committing it in the presence of the person so put in fear and
iii. That he committed it by putting that person or some other person in fear of instant death or of instant hurt or of instant wrongful restraint
iv. That he thereby induced the person to deliver up then and there the thing extorted.
It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt.
Aigbadion v. State (2000) 4SC Pt.1 pg.1
Agbe v. State (2006) 6 NWLR pt.977 pg.545
Section 138 of the Evidence Act cap 112 Laws of the Federation 1990
Akinyemi v. State (1999) 6 NWLR pt.607 pg.449.
Alonge v. I.G.P. (1959) SCNLR pt.576.
In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged.
Amadi v. The State (1993) 8 NWLR pt.314 pg.644 at pg.668.
Alor v. The State (1997) 4 NWLR pt.501 pg.511.
The prosecution relied on the evidence of the victim of the incident, which was based on his proximity to the accused/appellant prior to the incident. The appellant and the PW1 met at Dutse junction. The appellant needed a vehicle to convey him to Ushafa. They both bargained and he agreed to carry him. The appellant sat in front of the vehicle. He asked the PW1 to park as he wanted to ease himself in the course of the journey. When PW1 did not agree to stop immediately – the appellant brought out a gun to force him to stop. At that spot where there was nobody and it was then dark. PW1 put the time at 6.pm. The appellant opened the door of the car and pushed PW1 out of the car asking him to run into the nearby bush, obviously the incident gave enough room to PW1 to identify the appellant. They were both together inside a car – and not that they were making contact from a distance to each other.
In his defence of alibi – the appellant gave evidence that:-
“On the day the car was alleged snatched, I was with my brother throughout after I closed from the office after 6.pm”. The appellant clearly raised the defence of alibi’ Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else, at a place where most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.
Sowemimo v. The State (2004) 11 NWLR pt.885 pg.515.
Aiguorehian v. State (2004) 3 NWLR pt.860 pg.367
Onyegbu v. The State (1995) 4 NWLR pt.391 pg.510.
An accused must not raise the defence of alibi at large – he must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi.
Nsofor v. State (2002) 10 NWLR pt.775 pg.274.
Balogun v. A-G Ogun State (2002) 6 NWLR pt.763 pg.512.
PW2 investigated the alibi raised by the appellant and discovered that he went to the house of Kingsley his brother around 8.pm – whereas the alleged crime took place around 6.30pm. The appellant failed to account for his whereabouts between 6.pm and 8.pm.
There is overwhelming evidence from PW1 linking the appellant to the crime on the day of the incident – a formal identification parade is unnecessary in the circumstance of this case. The scenario is that in which PW1 can easily identify the appellant regardless of his evidence that it was already dark.
An identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances –
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
b. where the victim or witness was confronted by the offender for a very short time.
c. where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused.
None of the forgoing applies to this case as PW1 had ample opportunity to familiarise and later recognise the appellant
Ukpabi v. State (2004) 11 NWLR pt.884 pg.439.
Ebiri v. State (2004) 11 NWLR pt.885 pg.589
With fuller reasons given by my lord in the lead judgment, I also dismiss this appeal and affirm the conviction and sentence of the two lower courts.
SULEIMAN GALADIMA, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother FABIYI JSC, just delivered. I agree with his reasoning leading to the conclusion that this appeal lacks merit and it should be dismissed.
At the trial court, the Appellant was arraigned for the offence of robbery. He was found guilty of the offence, convicted and sentenced to 11 years imprisonment, and in addition a fine of N250,000.00 under section 298 of the penal code. The prosecution called two witnesses to prove that the appellant robbed one Taye Musa, a driver of a commercial vehicle. In his defence, the appellant called two other witnesses having testified himself.
The learned trial judge after a careful consideration of the case, as stated above, convicted the appellant. His appeal to the court below was dismissed. That is to say the judgment of the trial court was affirmed. Aggrieved, the appellant further appealed to this Court.
The two issues formulated by the appellant was adopted by the respondent. The issues are as follows:
“(i) Whether the prosecution proved the case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of appellant by the Court of appeal.
(ii) Whether the learned Justices of the Court of Appeal directed themselves on their evaluation of the evidence with which the two issues they found that the appellant did not give o detailed particularization of his whereabouts on the crucial day of the offence, which misdirection in turn, led to miscarriage of justice to the appellant.”
I have carefully considered the argument and submissions of the learned counsel for the respective parties on the two issues. Learned counsel for the appellant submitted strongly that an identification parade was essential and required in the prevailing circumstance. He cited a number of authorities in support of this submission, such as ANI v. THE STATE (2009)5 MJSC (pt 11) at 18, BALOGUN v ATTORNEY GENERAL OGUN STATE (2002) 4 MJSC 45 at 58; R v TURNBULL (1976) 3 ALL ER 549 at 522 and UKPABI v THE STATE (2004)9 MJSC 120.
Learned Counsel for the Respondent submitted that evidence PW1 which was not challenged proved the identity of appellant the person who robbed PW1. That he sufficiently recognised the appellant.
The essential ingredients of the offence of robbery are that, there was robbery or series of robbery; that each robbery was an armed robbery and that the accused was the one of those who robbed. See: BELLO v THE STATE (2007) 10 NWLR (pt.1043) 564; ALABI v. The State (1985) 2 NWLR (pt.8) 465 at 469.
In most cases of robbery, it is required that proper identification of the real culprit be made. Usually, there must be real doubt as to who was seen in connection with offence so as require an identification parade.
In the case at hand PW1, was the victim of the offence charged. He was an eye witness. He said that he saw the face of the appellant around 6.00pm. He could recognise him very well. The trial judge believed his testimony and considered him as a witness of truth in words and demeanour. He stated how he bargained with the appellant carry him (the appellant). The Appellant sat in front of the PW1’s car. When the appellant asked PW1 to stop he refused. It is ten the appellant brought out a gun, pointed it at him and pushed him out.
PW1’s evidence clearly established that the appellant committed robbery. I cannot fault the concurrent findings of the trial court and the Court below on the identity of the appellant. In the prevailing circumstance it was not necessary to conduct an identification parade.
The second issue relates to the plea of alibi put up by the appellant. Learned Counsel for the appellant has submitted that the appellant has given sufficient explanation of crucial date of the offence charged. On the counsel for the respondent has submitted that where an alibi has been raised and there is a visual and positive identification of the accused, which is believed by the Court, the appellant Court should not disturb such a finding.
An accused person, who pleads alibi, must furnish sufficient particulars of same. He must explain his whereabout and those present with him at the material time. It is after this that the prosecution can disprove the plea of alibi. Where prosecution has failed to investigate this, the accused person is likely to acquitted. See GACHI v. THE STATE (1973) 11 NWLR 331.
If the prosecution adduces sufficient and accepted evidence of crime at the material time then the plea of alibi by the accused person is logically demolished: See PATRICK NJOVENS & ORS v THE STATE (1973) ALL NLR 371 at 401- 402.
In this case the appellant was identified by his victim (PW1) clearly. To my mind the plea of alibi was an after thought. Kingsley, the brother of the appellant was not called upon to support his plea of alibi. The evidence of PW1 and PW2 was credible enough to fix the appellant with the commission of the offence charged. The findings of the two courts below on this aspect are concurrent. This court cannot disturb it since they are supported by evidence on record and are not found to be perversed.
I find that all the essential ingredients of the offence of robbery charged in this case have been proved by the prosecution.
In the light of the above reasoning and the fuller and detailed reasoning given in the lead judgment, I too find that this appeal is lacking in merit. It is dismissed. The judgment of the Court below which affirmed the conviction and sentence of the appellant is hereby confirmed.
BODE RHODES-VIVOUR, J.S.C.: I read in draft the judgment delivered by my learned brother, Fabiyi JSC. I agree with his lordships reasons and conclusion that the appeal locks merit. The charge against the appellant before trial court read as follows:
“That you Fabian Nwaturwocha on or about the 22nd day of October, 2004 and also on or about the 28th day of October, 2004 along Usman Dan Bwari Road, Abuja, within the jurisdiction of this Honourable Court robbed at gun point Taye Musa and Temihan Benga of a Toyota starlet Car with Registration Number A4445 ABJ and a Mazda Car with Registration Number 516 RBG respectively and thereby committed an offence punishable under Section 298 of the Penal Code.
To succeed the prosecution must prove the following:
1. That there was an armed Robbery,
2. That the accused /appellant was armed.
3. That the accused/appellant, while armed participated in the Robbery.
See Alabi v State (1993) 6 NWLR pt.301 p.115
The standard required is proof beyond reasonable doubt. See Section 138 (1) of the Evidence Act. Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.
This court will not interfere with concurrent findings of the trial court and the Court of Appeal on issues of fact except where the findings are perverse, or there is established a miscarriages of justice or a violation of principles of law or procedure. See
Igwego v. Ezengo (1992) 6 NWLR pt.249 p.561
Enonq v. Adu (1981) 11 – 12 SC p.25.
In my view the trial court carefully considered and evaluated the evidence in the case and have come to the correct decision, confirmed by the Court of Appeal that the case against the appellant has been proved beyond reasonable doubt. The defence of alibi fades into insignificance in the light of clear evidence to the contrary. This is a clear case of Robbery with nothing worth urging in favour of the appellant.
For this and the much filler reasoning in the leading judgment, I dismiss the appeal. The judgment of the Court of Appeal dismissing the appeal is hereby affirmed.
Appearances
O. Ahonaruogho For Appellant
AND
C. Enwelum For Respondent
