ISRAEL PIUS V. THE STATE
(2011)LCN/4647(CA)
RATIO
TRIAL WITHIN-TRIAL: WHETHER THE COURT MUST CONDUCT TRIAL WITHIN-TRIAL WHEN ADMISSIBILITY OF A CONFESSIONAL STATEMENT IS CHALLENGED ON THE GROUND THAT IT WAS NOT MADE VOLUNTARILY
It is now settled, as pronounced by this Court in Nwangbomu v. The State (supra) at page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the Judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial within-trial. Such a procedural step must be taken at the point when the objection is raised. See R. v. Francis and Murphy (1959) 43 Cr. App. R. 174; R. v. Omokaro 7 WACA 146; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Joshua Adekanbi v. Attorney-General, Western Nigeria (1966) 1 All NLR 47, (1966) 1 SCNLR 75; Paul Ashake v. The State (1968) 2 All NLR 198 and Auta v. The State (1975) NNLR 60 at 65. PER JOSEPH SHAGBAOR IKYEGH J.C.A
OFFENCE OF ARMED ROBBERY: EFFECT OF THE DOUBT CREATED AS TO THE IDENTITY OF THE WEAPON USED IN
The evidence for the respondent from the two eye-witnesses – PW1 and PW2 – did not support the use of knife in the robbery incident as stated in the charge sheet. The respondent, therefore, failed to prove beyond reasonable doubt the weapon used in the robbery. I would agree with Mr. Agbebi for the appellant that the doubt created by the identity of the weapon used in the robbery was fatal to the respondent case that fire-arms or offensive weapon was used in the robbery. Unresolved doubt on the weapon used in the commission of an offence where the nature of the weapon is material especially in armed robbery cases and to some extent homicide cases has the effect of reducing the gravity of the offence to a lesser offence. see John Okonji v. The State (1987) 1 NWLR (Pt. 52) 659 at 673 thus: “It seems to me from all this that there was a lingering doubt as to what weapon was used by the appellant. It is trite law that where there is doubt in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person. The consideration of the case in the High Court and the Court of Appeal had been based on the finding that a knife was the weapon. Any doubt on that finding must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal ….” PER JOSEPH SHAGBAOR IKYEGH J.C.A
DEFENCE OF ALIBI: EFFECT OF THE FAILUREOF THE ACCUSED TO FURNISH THE PARTICULARS OF ALIBI ; CIRCUMSTANCE IN WHICH THE PROSECTION MUST INVESTIGATE THE DEFENCE OF ALIBI
The plea of alibi raised by appellant was barren or bare. It did not satisfy the evidential burden placed on appellant of showing with particularity the alibi pleaded by him. In the circumstances, the respondent was not obliged to investigate the arid alibi – see Eke v. The State (supra) at 66 thus: “The appellant, in his oral evidence, attempted to put up the defence of alibi. This means that he was not at the scene of crime. Alibi means ‘elsewhere’. It is the duty of the police to investigate same. But it is the duty of the accused to furnish the particulars of alibi to the police at the earliest opportunity. He must furnish his whereabout and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal. See Yanor vs. The State (1965) NMLR 337; Queen vs. Turner (1957) WRNLR 34; Bello vs. I.G.P. (1956) SCNLR 113; Gachi v. The State (1965) NMLR 333; Odu & Anor. vs. The State (2001) 5 SCNJ 115 at 120 (2001) 10 NWLR (Pt.722) 668.” See also Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4; Eze v. The State (1976) 1 S.C. 125 at 130; Bozin v. The State (1985) 2 NWLR (Pt.8) 465; Umani v. The State (1988) 1 NWLR (Pt.70) 274 at 284. PER JOSEPH SHAGBAOR IKYEGH J.C.A
ROBBERY: DEFINITION OF ROBBERY
… in my view – see by extension the case of Ebeinwe v. The State (2011) 7 NWLR (pt. 1245) 402 at 420 per Muhammad, J.S.C., thus: “Robbery is theft or extortion by force or inducing of fear by coercion. See Kerenku v. Tiv N.A. (1965) 2 ANLR 141 at 142.” PER JOSEPH SHAGBAOR IKYEGH J.C.A
ALIBI: MEANING OF ALIBI
The word “alibi” in its original Latin con as an adverb means “elsewhere”. See: – Gachi vs. The State (1965) NMLR 334; Nwabueze vs. The State (1988) 4 NWLR (Pt. 86) 16. PER SIDI DAUDA BAGE- J.C.A.
ALIBI: EFFECT OF THE SUCCESS OF A DEFENCE OF ALIBI
If the defence of alibi succeeds, the accused is completely and totally exonerated from criminal responsibility as he lacks the mens rea and the actus reus for the commission of the offence. This is because if an offence was alleged to have been committed by the accused in a particular place, which is the scene of crime, and there is evidence that he was somewhere else at the material time, and not in the scene of crime, he cannot be found guilty of committing the allege offence. PER SIDI DAUDA BAGE- J.C.A.
DEFENCE OF ALIBI: PARTICULARS THAT MUST BE FURNISHED BY AN ACCUSED WHO INTENDS TO RELY ON THE DEFENCE OF ALIBI
The law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his where about at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi if the accused said he was in a particular locality or with a particular person or persons’ he must give a lead as to the specific place, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime. See:- Obiode vs. The State (1974) 1 All NLR 35; Okosi vs. The State (1989) 1 NWLR (Pt.100) 642 at 659; Gachi v. The State (1965) ANLR 333; Ozaki vs. The State (1990) 1 NMLR (Pt.121) 92; The State v. Salami (1988) 2 NWLR 9Pt.85) 670; Aremu vs. The State (1991) 7 NWLR (Pt.201) 1 at 24; Ogoola vs. The State (1991) 2 NWLR (Pt.175) 509. PER SIDI DAUDA BAGE- J.C.A.
ALIBI: WHETHER THE FAILURE OF THE POLICE TO INVESTIGATE THE PLEA OF ALIBI RAISED BY AN ACCUSED PERSON WILL BE FATAL TO THE CASE OF THE PROSECUTION
… it is also settled principle of law that it is not every failure of the police to investigate an alibi raised by an Accused person that is fatal to the case of the prosecution. See: Ochemaje vs. The State (2008) 6 – 7 SC (Pt.11) 1. PER SIDI DAUDA BAGE- J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2011
CA/I/275/2008
JUSTICE
STANLEY SHENKO ALAGOAJustice of The Court of Appeal of Nigeria
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
Between
ISRAEL PIUSAppellant(s)
AND
THE STATERespondent(s)
JOSEPH SHAGBAOR IKYEGH J.C.A, (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Justice of Ogun State holden at Ijebu-Ode in the Ijebu-Ode Judicial Division convicting and sentencing the appellant to death for the crime of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, (CAP. 398) Laws of the Federation of Nigeria, 1990, (the Act) as amended.
In outline, the respondent’s case in the court below disclosed that the appellant while armed with a gun robbed one Miss Ogunlana Ajibola, the PW1, of a Sagem mobile phone, and one Mrs. Adedoja Odebode, the PW2, of two mobile phones – Nokia and Motorola models – shortly after 12 noon on 29.9.06, at the Ogidi health centre Atan in Ijebu North-East Local Government area of Ogun State; soon after robbing them, the appellant ordered them inside a near-by bush where he raped the PW1 before fleeing the scene, only to be seen by the PW3, a policeman, with two of the robbed handsets at the Erun/Luba junction, some two hours after the robbery incident.
The appellant denied the allegation of armed robbery and set up the defence of alibi in his evidence in the court below to the effect he was in Lagos buying Indian hemp for commercial use and did not know anything about the robbery incident nor were the mobile hand-sets recovered from him by the PW3.
The court below believed the respondent’s evidence and convicted the appellant as charged, giving rise to the appeal conveyed in a notice of appeal dated 10.4.08, but filed on 15.9.08, and subsequently amended and filed on 2.11.09. In a comprehensive brief of argument prepared by Mr. Agbebi of learned counsel on behalf of the appellant on 17.5.010, but filed on 20.5.010, and deemed properly filed on 8.7.010, two issues were extracted from the grounds of appeal for determination on the appeal:
“1. WHETHER THE LEARNED TRIAL COURT WAS RIGHT IN HOLDING THAT THE PROSECUTION PROVED A CASE OF ARMED ROBBERY AGAINST THE APPELLANT BEYOND REASONABLE DOUBT? AND
2. WHETHER THE LEARNED TRIAL COURT PROPERLY EVALUATED THE EVIDENCE PLACED BEFORE IT BY THE PROSECUTION?’
Issues 1 and 2 (supra) were argued together under ground 1 of the amended notice of appeal to the effect that by section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution) as amended, read with section 138 (1), (2) and (3) of the Evidence Act and the cases of Nwosu v, The State (1998) 8 NWLR (Pt. 562) 433 at 444. Aigbagbon v. The State (2007) 7 NWLR (pt, 666) 696 at 704, Idemudia v. The State (1999) 7 NWLR (pt. 610) 202 at 215, Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57, Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523, and Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 469, the respondent was obliged to prove beyond reasonable that there was an armed robbery executed by appellant before the presumption of innocence of the appellant would be displaced to warrant his conviction for armed robbery under section 1(2) of the Act (supra).
That in the present case, the PW4, the investigation police officer, testified that the case reported against appellant was stealing and rape, not armed robbery; the charge alleged appellant was armed with a knife, but the evidence of PW1 and PW2 showed he was armed with a gun, while appellant’s confessional statement in Exhibit E stated he was armed with a knife which he presented as a gun at the time of the alleged robbery.
It was contended that Exhibit E, the confessional statement, was alleged by appellant to have been obtained by torture at the time it was sought to be put in evidence by the respondent without the court below ordering a trial within trial before admitting it in evidence, therefore its, admission in evidence was wrong and the court below should not have acted upon it in convicting the appellant of the offence charged – Emeka v. The State (2001) 14 NWLR (Pt, 734) 666 at 681- 682 and Madjemu v. State (2001) 9 NWLR (Pt. 718) 349.
It was contended further that the evidence of the PW1 and the PW2 was an aftefthought “Possibly” to avenge the alleged rape of the PW1 by appellant; also, the failure to tender in evidence the statements to the police of the PW1 and the PW2 tantamounted to the withholding of unfavourable evidence by the respondent under section 149(d) of the Evidence Act; further, the discrepancy in the weapon used in the alleged robbery required the PW1 and the PW2 to identify the knife, Exhibit C, to clear the blur, which was not done.
Appellant’s brief went on to contend that the PW3 did not see the appellant with a weapon at the time he accosted him some few hours after the alleged incident, yet the PW4 testified that the jack knife, Exhibit C, was found in the house of the appellant after it was searched some days after the alleged robbery throwing doubt on the use of a weapon by appellant in the alleged robbery of PW1 and PW2; the alleged recovery of the two mobile phones, Exhibits, A and B, from the appellant depended on the exaggerated and false evidence of the PW3 who gave the impression of embarking on the investigation of the report made by the PW1 and the PW2 without receiving instructions from a superior officer claiming he caught up with the appellant in the same direction the PW1 and PW2 testified appellant had followed after an interval of about two hours between the report of the incident to the police and the PW3’s encounter with the appellant, and the eventual arrest of the appellant at Agege in Lagos State through the assistance of one Adewunmi who tried to escape when policemen came to search the appellant’s house before the PW1, PW2 and PW4 visited the scene of crime after which appellant was shown the items recovered from his house followed by the recording of his statement by the police which put together was unbelievable and sufficient to put the court below on notice that the evidence against the appellant was concocted by tainted witness and should not have been accepted by the court below on the authority of C and C Construction Co. Ltd. v. Okhai (2003) 18 NWLR (Pt.851) 79 at 100. It was also submitted that the PW1 and PW2 did not know appellant before the alleged armed robbery attack on them and with the denial of its involvement in the robbery as well as his evidence that PW1 pointed to someone else in the police cell where appellant was detained as the culprit necessitated the holding of an identification parade to ascertain the identity of the culprit in line with the decisions in Okeke v. The State (1995) 4 NWLR (Pt. 396) 676 at 708 – 709, Alabi v, The State (1993) 7 NWLR (Pt. 307 524, Eyisi v. The State (2000) 15 NWLR (Pt. 691) 555 at 587 – 588, which made the identification of appellant in a police cell suspect and rendered the finding of the court below that he was properly identified perverse.
It was submitted finally that the appellant’s evidence that PW3 knew him as a dealer in narcotics and had accosted him on his return from Lagos on 30.9.06, but appellant eluded his clutch to avoid risking arrest with the Indian hemp he was carrying at the material time made him to flee to Lagos on a hunch that PW3 would not leave him alone and was likely to search his premises afterward, which foreshadowed the defence of alibi which the police did not investigate to debunk the story that he was arrested with the robbed items of the PW1 and PW2 in Exhibits A and B soon after the robbery and was presumed to be the robber under section 149(a) of the Evidence Act.
Mr. Adebayo, the learned Deputy Director of Prosecutions (DDPP of Ogun) settled the respondent’s brief of argument dated 27.7.010, but filed on 4.8/010, adopting the two issues formulated by the appellant, which were argued separately and seriatim.
Respondent’s brief contended that the evidence of the PW1 and the PW2 established the offence of armed robbery and, the two witnesses being lay people reported to the PW4 that somebody stole their handsets and raped one of them which the PW4 recorded in their words and, the PW1 and the PW2 added in their evidence that the person threatened them with a gun before dispossessing them of their mobile phones or handsets and herding them naked into a bush behind their place of work where he forced PW1 by hitting her on the head with the gun before raping her, therefore the PW1 and the PW2 had ample opportunity of seeing the appellant in the course of the commission of the offence; all the more so Exhibit E, the appellant’s voluntary statement to the police, confessed the crime coupled with the discovery of the robbed items, Exhibits A and B, by the PW3 with the appellant some few hours after the robbery obviated the requirement of an identification parade vide section 148 (a) of the Evidence Act, Yongo v. COP (1990) 5 NWLR (Pt.148) 103 at 116 – 117, Eze v. The State (1985) NWLR (Pt.13) 423; Madagwa v. The State (1988) 5 NWLR (Pt.92) 60, Aremu v. The State (1991) 7 NWLR (Pt.201) 1, Baruwa v. The State (1996) 7 NWLR (Pt.460) 301, Adeyemi v. The State (1991) 1 NWLR (Pt.170) 679, Adamu v. The State (1991) 4 NWLR (Pt.175) 509 and Okoro v. The State (1993) 3 NWLR (Pt. 282) 425 at 436.
Respondent contended on issue 2 that the court below properly and adequately evaluated the evidence adduced before it in pages 32 to 38 of the record of appeal before it reached the verdict that appellant was guilty as charged; and, having discharged the primary responsibility of appropriately ascribing probative value to the evidence of the witnesses it saw face to face and assessed their respective demeanour, the said findings should not be disturbed by the court following the cases of Bashaya v. The State (1998) 5 NWRL (Pt.550) 351, Igago v. The State (1999) 14 NWLR (Pt.637) (Pagination not supplied), Onuoha v. The State (1998) 5 NWLR (Pt.548) 118 and Agbanyi v. The State (1995) 4 NWLR (Pt.369) 22.
Appellant’s reply brief dated 20.8.2010, but filed on 23.9.011, and deemed properly filed on 19.1.011, advocated that identification parade was necessary as the allegation of rape was not proved to add weight to the evidence for the respondent that PW1 and PW2 had ample opportunity of observing the appellant at the material time, more so appellant’s alibi was not dislodged citing in support, Okeke v. The State (supra) on the necessity for identification parade.
It was also submitted that the evidence of use of a gun in the alleged robbery was at variance with the charge where a knife was mentioned violating section 36(6)(a) of the 1999 Constitution read with the case of Iko v. The State (2001) 14 NWLR 9Pt.732) 221; and that, the court below merely summarized the evidence without reviewing, criticizing and estimating it in the con of the totality of the evidence, consequently it cannot be said the court below evaluated the evidence before it vide Lagga v. Sarhuna (2008) 15 NWLR (Pt.1114) 427 and Odofin & Ors v. Mogaji & Ors. (1978) NSCC 275.
The issues for determination formulated by appellant are apt for the determination of the appeal. The starting point is the admission in evidence of the confessional statement of the appellant, Exhibit E, by the court below. When the appellant’s statement to the police was sought to be tendered in evidence by the respondent, his learned counsel, Mr. Sonuga, objected in pages 2I-22 of the record of appeal thus:
“The accused told me now that he was tortured into making all the 4 statements he made to the police including the one now sought to be tendered, I will therefore object to the tendering of this statement. Furthermore, the accused said he was being asked to say what happened and he did but he did not know what the police wrote and the police gave it to him to sign which he did. The accused person claimed not to be the maker of the statement and that it was just given to him to sign. I object to the statement being admitted in evidence” (my emphasis).
Nudged by respondent’s learned counsel in the court below that appellant’s above stated objection was on the authorship of the statement, the court below agreed that the appellant merely denied making the statement to the police and disregarded the issue of involuntariness or making of the statement under torture raised by the appellant. I do not, with deference to the court below, appreciate its reasoning that the objection to the admissibility of the statement was not based on the ground of torture. The opening sentence of appellant’s learned counsel mentioned torture as the basis for the objection. The word “furthermore” meaning “in addition to” (see Chambers Twentieth Century Dictionary page 517) did not cancel but the opening statement of the objection. It merely added to it, in my view.
The main plank of the objection was, therefore, based on the ground of torture and the court below should have viewed the totality of the objection objectively and fairly to come to the conclusion that appellant’s objection to the statement was based paramountly on torture see Okegbu v. The State (1979). N.S.C.C. 151 at 174 thus:
“As is well known, enactments regulating the procedure in courts are usually construed as imperative; and that is a cardinal principle of interpretation of statutes especially where procedural provisions, as under section 164(1), are inserted for the protection of accused person. With respect, this accords with the views of Lord Hudson in his speech in the House of Lords in The Secretary of State for Defence v, Warn (1968) 3 W.L.R. 609 at 614 where he stated:
“Procedural sections are usually mandatory and there is nothing which points to the contrary in this case, Procedural provisions are, as here, often inserted for the benefit of accused persons…..”
I would agree with Mr. Agbebi, learned counsel for the appellant, that the court below was bound to order and conduct a trial-within-trial before deciding on the admissibility of the said statement and its failure to do so rendered the statement’ in Exhibit E inadmissible in evidence. It is hereby expunged. See Eke v. The State (2011) 3 NWLR (Pt. 1235) 589 at 603 as follows:
*It should be stated clearly that the test for admissibility of confessional statement is its involuntariness. Once the issue is raised as done at the trial court, it must be resolved or settled one way or the other before its admission or otherwise. See: Agholor v. Attorney-General, Bendel State (1990) 6 NWLR (Pt.155) 141 at page 151; Eguabor v. Queen (No.1) (1962) 1 SCNLR 409; Olabode v. The State (2009) 5 – 6 SC (Pt.110) 29, (2009) 11 NWLR (Pt.1152) 254.
It is now settled, as pronounced by this Court in Nwangbomu v. The State (supra) at page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the Judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial within-trial. Such a procedural step must be taken at the point when the objection is raised. See R. v. Francis and Murphy (1959) 43 Cr. App. R. 174; R. v. Omokaro 7 WACA 146; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Joshua Adekanbi v. Attorney-General, Western Nigeria (1966) 1 All NLR 47, (1966) 1 SCNLR 75; Paul Ashake v. The State (1968) 2 All NLR 198 and Auta v. The State (1975) NNLR 60 at 65.
It is clear to me that the trial Judge at the Tribunal goofed in failing to carry out the mandatory trial within trial to determine the voluntariness of the statement credited to the appellant. To my mind, exhibit 5 was admitted to no avail. However, the conviction of the appellant was not based solely on exhibit 5.’
See also Gbadamosi v. The State (1992) 9 NWLR (Pt.266) 465; Obidiozo v. The State (1987) 11 – 12 SCNJ 103 at 120, Auta v. The State (1975) 4 S.C. 92, Nsofor v. The State (2004) 12 SCNJ 121; Madgemu v. The State (2001) 9 NWLR (Pt.718) 349 and Emeka v. The State (2001) 6 SCNJ 259
The charge sheet stated that the appellant was armed with a knife at the time he robbed the PW1 and the PW2 (see page 2 of the record of appeal). The PW1 testified that the appellant was armed with a gun and hit it on her head and threatened to shoot her after the robbery (see pages 13 and 14 of the record of appeal). The PW1 closed her answers under cross-examination that:
“I confirm that the accused had a gun in his possession.”
The PW2 also testified inter-alia that:
“The accused pulled out a gun and ordered us to surrender our hand-sets.” (See page 15 of the record).
The evidence for the respondent from the two eye-witnesses – PW1 and PW2 – did not support the use of knife in the robbery incident as stated in the charge sheet. The respondent, therefore, failed to prove beyond reasonable doubt the weapon used in the robbery. I would agree with Mr. Agbebi for the appellant that the doubt created by the identity of the weapon used in the robbery was fatal to the respondent case that fire-arms or offensive weapon was used in the robbery. Unresolved doubt on the weapon used in the commission of an offence where the nature of the weapon is material especially in armed robbery cases and to some extent homicide cases has the effect of reducing the gravity of the offence to a lesser offence. see John Okonji v. The State (1987) 1 NWLR (Pt. 52) 659 at 673 thus:
*It seems to me from all this that there was a lingering doubt as to what weapon was used by the appellant. It is trite law that where there is doubt in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person. The consideration of the case in the High Court and the Court of Appeal had been based on the finding that a knife was the weapon. Any doubt on that finding must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal ….”
I resolve the doubt in appellant’s favour and conclude that the respondent did not prove beyond reasonable doubt that the robber was armed at the time of the robbery and the holding of the court below that the robber was armed with a “jack knife” was not supported by the evidence of the two eye-witnesses – PW1 and PW2 – and is hereby discounted.
The identification of the appellant in the midst of other accused at the police station by the PW1 and PW2 was spontaneous or unaided. It was according to their respective evidence, done at the time the appellant was in the group of other accused persons, showing the appellant was not singled out or isolated for pre-arranged identification by the PW1 and PW2. In the case of the PW1, she testified in examination-in-chief inter-alia that:
”Some days later, we were invited to Atan Police Station. Immediately I got to the station, I identified the accused as the man who came to rob us.” (See page 14 of the record).
The PW2 also testified inter-alia that:
“Some days later in October 2006 we were invited to the police station. On getting there the PW1 and I immediately identified the accused amongst several suspects in the cell and we told the police that the accused was the one who attacked us…” (See page 16 of the record).
The PW2 explained under cross-examination that:
“I identified the accused because we had earlier seen him when he came to ask after an accident victim…” (See page 17 of the record).
In my considered view, the identification of the appellant by the PW1 and PW2 was reliable and the appellant’s contention to the contrary is, with respects, untenable, and is hereby discounted – see Adeyemi v. The State (1991) 1 NWLR (pt. 170) 679; Adamu v. The State (1991) 4 NWLR (Pt.189) 530; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; and Baruwa v. The State (1996) 7 NWLR (Pt.460) 302.
The appellant stated blandly that he was in Lagos at the time the offence was said to have been committed. He did not give the particulars in terms of the address or part of Lagos and the person(s) with him in Lagos at the material time. The plea of alibi raised by appellant was barren or bare. It did not satisfy the evidential burden placed on appellant of showing with particularity the alibi pleaded by him. In the circumstances, the respondent was not obliged to investigate the arid alibi – see Eke v. The State (supra) at 66 thus:
“The appellant, in his oral evidence, attempted to put up the defence of alibi. This means that he was not at the scene of crime. Alibi means ‘elsewhere’. It is the duty of the police to investigate same. But it is the duty of the accused to furnish the particulars of alibi to the police at the earliest opportunity. He must furnish his whereabout and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal. See Yanor vs. The State (1965) NMLR 337; Queen vs. Turner (1957) WRNLR 34; Bello vs. I.G.P. (1956) SCNLR 113; Gachi v. The State (1965) NMLR 333; Odu & Anor. vs. The State (2001) 5 SCNJ 115 at 120 (2001) 10 NWLR (Pt.722) 668.”
See also Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4; Eze v. The State (1976) 1 S.C. 125 at 130; Bozin v. The State (1985) 2 NWLR (Pt.8) 465; Umani v. The State (1988) 1 NWLR (Pt.70) 274 at 284.
The complaint on the withholding of evidence under section 149(d) of the Evidence Act has no basis in the light of the position that no request was made by the defence for the production of the statements to the police of the PW1 and PW2, or were the statements used to cross-examine the witnesses in question – see Aremu v. The State (1991) 7 NWLR (Pt.301) 1 at 1 thus:
“The presumption arises when it is shown that the adverse party has suppressed a document which has been proved to be in its possession and which it has refused to produce after service of the notice.”
See also Sunday v. The State (2010) 18 NWLR (Pt, 1224) 223 at 241, to the effect that before the credit of a witness is to be impeached by his or her previous statement, such statement must be put in evidence as an Exhibit after the attention of the witness is drawn to it and the witness denies making the statement.
The PW1, PW2 and the PW3 were not discredited in the court below on their respective pieces of evidence that appellant robbed the PW1 and PW1 of some handsets, Exhibits A and B, on 29.9.06, and PW3 discovered the handsets, Exhibits A and B, with the appellant less than four hours after the robbery incident on 29.9.06. The furor raised on the credibility of the PW1, PW2 and PW3 on that aspect of the case were matters that should have been addressed by the appellant in the court below where the primary responsibility of watching the demeanour of the witnesses and gauging their testimonies on the said demeanour resided.
This Court, as rightly submitted by Mr. Adebayo for respondent, is not in the vantage position to intervene in matters hinging on the credibility and demeanour of witnesses, especially in the present case where the court below unquestionably assessed the credibility of the witnesses and evaluated the evidence before it on the issue of recent possession of the robbed items by the appellants – see Baghaya v. The State (1998) 5 NWLR (Pt. 550) 351; Igago v. The State (1999) 14 NWLR (Pt. 637) 1 Onuoha v. The State (1998) 5 NWLR (Pt. 548) 1, Agbanvi v. The State (1995) 4 NWLR (Pt. 369) 22 and Yaki v. The State (2008) ALL FWLR (Pt. 440) 618 at 654.
The evidence of the PW1, PW2 and PW3 taken together established beyond per adventure, as rightly held by the court below, that some few hours after the PW1 and the PW2 were robbed of the handsets, Exhibits A and B, which they positively identified as their items, the appellant was discovered with the two handsets, Exhibits A and B, by the PW3. The appellant’s defence was alibi, which was not made out as earlier held in this discourse. The appellant did not also give account of his possession of the items, Exhibit A and B, on the balance of probability.
The presumption under section 149 (a) of the Evidence Act that the appellant was the robber was, accordingly, rightly drawn by the court below. And, in the absence of defence evidence on the balance of probability to displace the presumption, the evidence of recent possession given by respondent nailed the appellant, in my considered view, to the robbery of the PW1 and PW2 on 29.9.06. The court below was, on that platform, right to invoke the presumption under section 149(a) of the Evidence Act, to arrive at the verdict that the appellant was the robber – see, Eze v. The State (1985) 3 NWLR (Pt.13) 329; Idowu Salami v. The State (1988) 3 NWLR (Pt.85) 570; Madagwa v. The State (1988) 5 NWLR (Pt.92) 60 at 72; Aremu v. The State (1991) 7 NWLR (Pt.301) Page 1; Martins v. The State (1997) 1 NWLR (Pt.481) 355.
The PW1 and the PW2 parted with their handsets, Exhibits A and B under threat by the appellant. The element of fear overwhelmed them at the material time, bringing the act of the appellant within the confines of the offence of mere robbery, in my view – see by extension the case of Ebeinwe v. The State (2011) 7 NWLR (pt. 1245) 402 at 420 per Muhammad, J.S.C., thus:
“Robbery is theft or extortion by force or inducing of fear by coercion. See Kerenku v. Tiv N.A. (1965) 2 ANLR 141 at 142.”
Robbery without firearms or offensive weapon was, in my considered view proved by the respondent against the appellant beyond reasonable doubt. See Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765.
The net result is that the appeal fails. It is hereby dismissed with this rider: The respondent having failed to prove with certainty the weapon used in the robbery as held in the course of this discourse, the conviction of the appellant for the offence of armed robbery under section 1(2)(a) of the Act (supra) is varied to conviction for the lesser offence of robbery without firearms or offensive weapon under section 1(1) of the same Act taken along with section 19(3) of the Court of Appeal Act, 2004, as amended, and the case of John Nwachukwu v. The State (supra) at page 765.
The appellant is sentenced to twenty-one (21) years imprisonment, backdated to October, 2006, when the appellant lost his liberty on account of the case.
STANLEY SHENKO ALAGOA, J.C.A: I read before now the judgment just delivered by my brother Ikyegh J.C.A. and I agree that the appeal lacks merit and should be dismissed. It is hereby dismissed by me. I abide by the order/s contained in the lead judgment.
SIDI DAUDA BAGE- J.C.A. I had the privilege of reading in draft the lead judgment of my learned brother J.S. IKYEGH J.C.A., in which I concur. Just to add a few words of my own. In his denial of the allegation of armed robbery, the accused person had set up the defence of Alibi in his evidence in the court below to the effect that he was in Lagos buying Indian hemp for commercial use and did not know anything about the robbery incident, nor were the mobile land sets recovered from him by the PW3.
The word “alibi” in its original Latin con as an adverb means “elsewhere”. See: – Gachi vs. The State (1965) NMLR 334; Nwabueze vs. The State (1988) 4 NWLR (Pt. 86) 16. If the defence of alibi succeeds, the accused is completely and totally exonerated from criminal responsibility as he lacks the mens rea and the actus reus for the commission of the offence. This is because if an offence was alleged to have been committed by the accused in a particular place, which is the scene of crime, and there is evidence that he was somewhere else at the material time, and not in the scene of crime, he cannot be found guilty of committing the allege offence.
The law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his where about at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi if the accused said he was in a particular locality or with a particular person or persons’ he must give a lead as to the specific place, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime. See:- Obiode vs. The State (1974) 1 All NLR 35; Okosi vs. The State (1989) 1 NWLR (Pt.100) 642 at 659; Gachi v. The State (1965) ANLR 333; Ozaki vs. The State (1990) 1 NMLR (Pt.121) 92; The State v. Salami (1988) 2 NWLR 9Pt.85) 670; Aremu vs. The State (1991) 7 NWLR (Pt.201) 1 at 24; Ogoola vs. The State (1991) 2 NWLR (Pt.175) 509.
Again it is also settled principle of law that it is not every failure of the police to investigate an alibi raised by an Accused person that is fatal to the case of the prosecution. See: Ochemaje vs. The State (2008) 6 – 7 SC (Pt.11) 1.
For this, and all the detail reasonings contained in the lead judgment, I too dismissed this appeal for lack of merit, and following the lead judgment with a rider. The conviction of the appellant for the offence of armed robbery under section 1(2)(a) of the Act, is also varied to conviction for the lesser offence of robbery without firearms or offensive weapon by me, under section 1(1) of the same Act, together with section 19(3) of the Court of Appeal Act, 2004, as amended, in line with the lead judgment.
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Appearances
Mr O. Agbebi;For Appellant
AND
Mr. B.A. Adebayo (DDPP, Ogun State);For Respondent
