KWAME WISDOM & ANOR v. THE STATE
(2013)LCN/6331(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2013
CA/I/351/2009
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
O.O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. KWAME WISDOM
2. SEGUN ADEBIYI – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
THE ESSENCE OF AN IDENTIFICATION PARADE
At the Supreme Court, Belgore JSC (as he then was) in Henry Otti v. State (1993) 4 NWLR (Pt.290) 675 adumbrated on the instantaneous recognition of the accused by the victim. My lord held thus:-“it is therefore to be restated that identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. The best identification was the instantaneous recognition of the car that was used to take the PW1 to the Apese/Lekki Beach and the recognition of the Appellant as the driver of that fateful day. There was hardly any need for lining up the Appellant among others for the PW1 to identify. It is not in all cases the that identification parade is necessary; and whereas in this case the PW1 right in the heavy traffic several miles away from the scene of the crime identified not only the driver but also the car, an identification parade is not only superfluous but completely unnecessary..(Ikemson v. The State (1989) 3 NWLR (Pt.110) 455). PER DONGBAN-MENSEM, J.C.A.
WHETHER OR NOT BODILY INJURY IS REQUIRED TO PROVE THE OFFENCE OF ARMED ROBBERY
There is clear evidence of threat of violence, helplessness in the victims whose privacy were invaded in the dark of the night. They were dispossessed of money and valuables under threat of violence with a gun. Bodily injury is not a requirement under the provisions of Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria,2004. It is not expected that armed robbers will go about parading themselves with their tools of terror during the day. That they were not found in possession of any weapon is therefore not a powerful fact to detract from the other evidence assembled against the Appellants. PER DONGBAN-MENSEM, J.C.A.
M.B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 2nd April, 2009, the Hon. Justice M. A. Dipeolu of the Ogun State High Court of Justice holden at Sagamu Judicial Division, delivered a judgment against the Appellants. The Appellants as accused persons were charged for conspiracy to commit felony contrary to Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria, 2004 and Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap, R.11 Laws of the Federation of Nigeria, 2004. The Appellants were convicted and sentenced by the learned trial Judge who rejected their defence of alibi. They were each sentenced to death.
Dissatisfied with the judgment the Appellants filed a notice of appeal which was later amended, dated and filed 27th August, 2010 with five grounds of appeal
From the five grounds of appeal, the Appellants formulated two issues as follows;-
1. Whether the failure to investigate the Appellants’ alibi was not fatal to the prosecution’s case?
2. Whether the prosecution proved the offences of conspiracy to commit Armed robbery and Armed robbery against the Appellants?
Respondent formulated a lone issue as follows:-
Whether the prosecution proved the offences of conspiracy to commit Armed robbery and Robbery against the Appellants beyond reasonable doubt having regard to the evidence adduced at the trial.
The argument raised for the appeal were contained in the Appellant’s brief of argument dated and filed on the 19th day of November, 2010 deemed filed on the 30th day of March, 2011. Argument in opposition were embodied in Respondent’s brief of argument dated 17th day of May, 2012 and filed 21st day of May, 2012 deemed filed 4th day of February, 2013. All in compliance with the rules of this court per Order 18 Rules 1-5.
This appeal will be determined on the two issues raised by the Appellants.
Issue one
Counsel for the Appellant Ikenna Okoli Esq. submits that the Appellants each set up their alibi early to the effect that they were not in Nigeria on the day of the alleged crime. That they were at Igolo & Cotonou respectively both in the Republic of Benin. That the Police deliberately refused to investigate their alibi because it is outside their jurisdiction explaining that they would need the help of the Interpol, they failed to solicit the help of the Interpol Section of the Nigerian Police which is fatal to the case of the Prosecution.(pg.37 of the record).
That the trial court misconceived the law when it discountenanced the alibi raised by the Appellants and placed the burden of proof of the defence of alibi on the accused persons. That the trial court also held that the Appellants did not adduce evidence in proof of their defence of alibi and held rather that there is positive evidence of the Appellants’ complicity in the offence, fixing the Appellants at the scene of the crime by the evidence of PW1 & PW2 which melts away the plea of alibi (pg.55-55E of the record). That the true position of the law is that, once an accused has set forth his alibi, it is not his duty to establish by evidence his alibi but for the prosecution to disprove it by Police investigation unless if there is strong, compelling and overwhelming evidence fixing the accused to the scene of the crime. (Refer Salami v. State (1988) 3 NWLR (Pt.85) 670. Aiguoreghian v. State (2004) 3 NWLR (Pt.860) 367 @ 401).
It is the submission of Counsel that the cases of Odu v. State (2001) 10 NWLR (Pt.722) 668 and Njovens v. State (1973) 5 S.C. 12 cited and relied on by the trial court are not applicable to this case.
Counsel further submits that the prosecution listed two other witnesses (Seun Kolawole & Felix Nchem) as alleged victims of the crime, both gave conflicting stories, the prosecution did not call any of them to testify and urges us to presume the evidence of Kolawole & Nchem would have been unfavourable to the prosecution if produced. Section 149(d) of the Evidence Act referred.
Counsel submits that the Appellant were not properly fixed at the scene of the crime as they were not arrested at the scene of the crime, police investigation was not conducted to disprove the alibi, that the PW1 might have mistaken the Appellants for other people and urges this court to uphold the alibi raised by the Appellants.
In reply to the argument of the Respondent that there was no sufficient particulars, Counsel submits that the Appellants gave the Police sufficient details on the day of the alleged crime and if the Police wanted further details they should have asked for it. Therefore it was not lack of particulars that stopped the Police investigation but the failure of the Police to seek the assistance of Interpol. (PW4 @ page 37 of the record)
Counsel for the Respondent O. Ogunsanwo Esq. (Assistant Chief State Counsel) defined alibi as the defence of being elsewhere other than at the scene of the crime at the relevant time. That the law of defence of alibi is that it must be raised timeously and the detail of the particulars of the where about of the accused must be given to enable the Police conduct an investigation. That in this case the Appellants gave very little information on their where about at Cotonou on the day the crime was committed which is not fatal as even if the Police and Interpol had tried, they could not come out with anything (Refer Ochemaje v. State (1991) 4 NWLR (Pt.186) page 399 @ 415)
Counsel submits that contrary to the submission of the Appellants, the trial court did not misapply the law in regards to the alibi raised by the Appellants because the victims of the crime that took place on 30th/12/2004 clearly identified and fixed the Appellants, at the scene of the crime as the robbers that robbed them on the said date which completely destroyed the alibi raised by the Appellants and render Police investigation unnecessary.(Refer Ede v. FRN (2001) 1 NWLR (Pt.695) page 502 @ 515 – 516).
Counsel also submits that the failure of the prosecution to investigate the alibi raised by the Appellants is not fatal to the prosecution case and urges this court to so hold.
The Appellants maintain that their defence of alibi is absolute and exonerates them. What is meant by alibi and what are the antecedents of the defence of alibi? These questions were answered in the recent case of the Apex court.
The legal term “alibi” means “elsewhere” per Rhodes-Vivour JSC in Nnamdi Osuagwu v. The State (2013) All FWLR Pt. 672 P.1602 at 1618. The learned Jurist, held that when an accused person contends that he cannot be guilty of the offence charged because at the time of commission of the offence he was somewhere else, he raises the defence of alibi or an alibi defence. It is not however sufficient to claim presence elsewhere. The Apex Court held further that apart from raising the defence of alibi at the earliest opportunity, a suspect has to explain by stating in clear terms the day, time and address of where he was when the Police allege that he committed the offence. In Court, an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. It is the duty of the accused putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.
The onus is not on the accused person to establish alibi to the satisfaction of the court but for the prosecution to disprove it. A plea of alibi is demolished if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of the crime at the material time
In the case of Odu & Anor. v. State (2001) 5 S.C. (Pt.1) 153 @ 156 Per Mohammed JSC held that:-
“Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. I do not have to repeat what this court had said in several decisions, but the onus of establishing alibi, being a matter within the personal knowledge of an accused lies on him. It is not enough for the accused to say to the court that I was at a particular place away from the scene of the crime, he has to prove his assertion. Even if the police have failed to investigate such assertion, the accused has the onus of adducing evidence on which he relies for his defence of alibi. The issue of the defence of alibi has failed.”
The duty of the accused who raises the defence of alibi, was also stated in Azeez v. State (2005) 8 NWLR (Pt.927) page 316 @ 317
“The burden is always on the accused, here the Appellant, to provide at the earliest possible time the material or data of where they were at the time of commission of crime, for the persecution to take action by investigating to verify the facts. If the Police were given the necessary information and they refuse to act or neglect to thoroughly investigate, then the accused will be given the benefit of the doubt.”
In the case of Ubani v. State (2003) 18 NWLR (Pt.851) page 224 @ 233, it was held that:-
“Where an accused person raises an alibi, the alibi should be investigated, and must be controverted by reliable or positive evidence by the prosecution.”
Also, in the case of Aiguoreghian v. State (2004) 3 NWLR (Pt.860) page 367 @ 377 page 401 the accused is given a light burden:-
“Indeed it is not for an accused person to prove his alibi rather; the onus is on the prosecution to disprove the alibi, once there is the slightest defence of alibi, the plea must be investigated. Failure of the prosecution therefore to investigate the alibi raised, as in the instant case is fatal to the prosecution’s case”
The question to ask now is did the Appellant set up an unequivocal alibi? This question is answered in the case of Odu v. State. The facts of the said case are similar to the one in issue even though the learned Counsel to the Appellants failed to cite the similarity in his comparison of the two situations.
I will reproduce the comparison as made by the learned Counsel for the Appellant @ pg 4-5 of the Appellant’s brief.
“The 1st Appellant had set up an alibi that he was in Kaduna during the time of the incident. Though the set alibi was not investigated by the prosecution, the trial judge went ahead to convict the appellant after rejecting the alibi. The trial court stated that there was direct evidence from PW1 & 4 that the 1st Appellant was at the scene of the crime. The Court of Appeal affirmed the judgment. The Supreme Court agreed with the position of the two counts on that issue.
It must be noted that in Odu v. State (supra), the matter involved people who knew each other very well, live in the same area and played together. It is therefore not be difficult for a court to believe the two prosecution witnesses who knew the 1st Appellant well when they gave evidence that he was at the scene of the crime and participated therein. That is not the situation in the present case where the two prosecution witnesses claimed to be able to identify the appellants as the unmasked robbers when they had never met any of the armed appellants prior to the alleged robbery.”
The learned counsel moved from the issue of alibi to identification. The ratio in the said case is that the Appellant gave no sufficient details for the confirmation of his defence of alibi.
In the light of these authorities, did the Appellants raise a credible alibi?
The learned trial judge found at page 55D of the records as follows:-
“It is the defence counsel’s contention that failure of the Police to investigate the accused person’s defence of alibi is fatal to the prosecution’s case. I disagree with the contention and hold that it is misconceived. The accused person who raised the defence of alibi is expected to also lead evidence in proof of same. In effect, the law places the burden of proof of defence of alibi on the accused person who raises same. In any case, it is trite that he who assert must prove. See Odu v. The State (2001) supra. Furthermore, when there is a positive evidence of the accused’s complicity in the offence the police need not investigate his alibi. See Salami v. The State (1988) 3 NWLR 760…”
With due respect, the learned Counsel to the Appellant assumed a very simplistic view of the duty of an accused person who raises the defence of alibi. The learned Counsel cites the cases of Odu v. State (supra), Salami v. State, Njovens v. State (supra) (Pg 4 of appellant’s brief) to buttress his submissions. Counsel however concedes that the Apex court held in Salami’s case, that the alibi must be unequivocal, inter alia. What is meant by an unequivocal alibi? Is it sufficient to say one was in Lagos and not in Ibadan on the date of the alleged incidence? In this appeal, the Appellants raised the defence of alibi by simply saying that they were at Cotonou on the date of the incidence – which was the 30/12/2004. It is the submission of the Respondent that the Appellants did not give any detailed particulars that will be sufficient for the Police to investigate the truthfulness or otherwise of their claims. It is the case of the Respondent that even if the Police had requested the Interpol unit to investigate, without the details from the Appellants, such investigation would avail little. The learned Chief State Counsel for the Respondents submits that, when a defence of alibi is raised the evidential or secondary burden lies on the accused to adduce evidence of where he was at the material time. (Refers Ochemaje v. State (2008) 15 NWLR Pt.1109 Pg. 57 @ 90).
In the instant appeal, there is a striking coincidence of the two Appellants being seen walking together, boarding the same taxi heading for the same destination. The victim said the Appellants were both unmasked and they had an interaction with the witnesses. PW1 stated in his evidence that the robbers searched his room. Those who were unmasked took his handset, removed the sim card and handed it over to him. There was thus some interaction between the robbers and the victims/witness. The facts of this case are very similar to those Henry Otti v. The State (1991) 8 NWLR (Pt.207) 103 @ 117.
In the instant case, where the accused person gave insufficient particulars of his alibi, the trial court rightly discountenanced same.
Issue two
On conspiracy to commit Armed Robbery, Counsel for the Appellants defined conspiracy by citing the case of Obiakor v. State (2002) 10 NWLR (Pt.776) 612 @ 628 and submits that the essential ingredients of the offence of conspiracy were not proved against the Appellants to justify their conviction. (page 55D of the record)
Counsel submits that there was no conclusive proof that the Appellants were seen together at Owoade where they boarded the same vehicle and the finding of the trial court that stolen items were recovered from the Appellants is not borne out of the evidence before the court, the items taken from the 2nd Appellant by the Police at time of his arrest were not proved to have been stolen from the alleged victims of the crime or anyone else.
Counsel further submits that there was nothing to prove before the trial court beyond reasonable doubt that the Appellants agree to commit the offence of Armed Robbery; the trial court did not evaluate evidence placed before it. For these reasons, the learned Counsel urges this court to overturn the decision of the trial court.
Contrarily, the learned Counsel for the Respondent submits that Conspiracy which is an agreement of two or more persons to do or cause to be done an illegal act or a legal act by an illegal means has no direct means of proving but through inference of circumstantial evidence. (Njovens v. State (2004) 1 CAC 225 @ 284, Oduneye v. State (2001) 5 NSCR 1 @ 1 -3).
Counsel further submits that the Appellants were sighted, walking together and boarded the same vehicle, they were spontaneously identified and recognised by the PW2 as being among the five robbers who robbed them on 30th/12/2004. Counsel urges this court to upheld the findings of the trial court. Counsel refers to page 55D of the record and the case of Tonko v. State (2008) 16 NWLR (Pt.1114) page 597. @ 637-639.
It was Willies. J. in the House of Lords decision who offered the generally accepted definition of the offence of Conspiracy in Mulcahy v. R. (1968) 311 1. 317.
His lordship defined or explained conspiracy as follows:-
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. So long as the design rests in intention only it is not indictable, when two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise actus contra actus capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means”.
The science of law has not improved on the definition of conspiracy given by Willies J. Thus, in a trial, we must still fall back on the existence of a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof, it is invariably an offence that is inferentially deduced from the act of the parties involved which are focused towards the realization of their common or mutual criminal purpose.
This common design/intent agreement must manifest in, an action which can be interpreted as evidencing a common intent, agreement or design and thereby, conspiracy is birthed.
In this appeal, the fact that both Appellants were seen together walking on the street, though they denied this, is, evidence of familiarity/comradeship from which common intent and which manifested in the actus reus which led to their apprehension together at the same place.
In the case of Onochie v. The State (19) 1 ANLR 86, it was held that
“The proof of conspiracy can even be inferred from the circumstances of a case”
In this circumstance, I find no perversion in the finding of the trial court at page 55D of the record of this appeal that:-
“It is trite law that conspiracy cannot be proved by direct evidence but by inference and circumstantial evidence. From the circumstances surrounding the case as adduced in evidence by the prosecution witnesses, especially the facts that the two accused persons were seen together in Owoade where they boarded the same vehicle going to Idiroko, were accosted at Ajilete check point where they were arrested and some cir the alleged stolen items recovered from them. It seems to that this honourable court can conveniently draw the inference that the accused persons conspired the commit the offence and I so hold”
In this appeal the victims saw and recognised his alleged assailants on the street. He followed them immediately and at the earliest opportunity time raised alarm. Conspiracy can be informed from the comradeship of the accused persons being seen together.
On the offence of armed robbery, the Appellants submit that there are three ingredients to be proof beyond reasonable doubt to enable the prosecution succeed in a case of armed robbery as follows-.
i. That there was a robbery or series of robberies.
ii. That each robbery was an armed robbery
iii. That the Appellant was one of those who took part in the armed robbery.
Counsel submits that the above ingredients were not proved. That the trial court did not evaluate evidence placed before it or looked at the ingredients presented vis-a-vis the above ingredients’ of the alleged offence. Rather, the Judge merely looked at the issue of alibi and identification parade.
Counsel also submits that on the 1st ingredient, the complainant alleged that there was robbery on the 30th December, 2004 while PW3 confirmed that it was a case of burglary and stealing that was reported and after investigation found that it was robbery.
On the 2nd ingredient submits that assuming there was robbery the prosecution did not establish beyond reasonable doubt that it was Armed Robbery. That there was no any offensive weapon recovered from the Appellants or tendered in evidence as having been used for the alleged robbery.
On the 3rd ingredient submits that assuming without conceding that the 1st & 2nd ingredients were proved, that there was no evidence as to whether the Appellants were among those who took part in the robbery and that they were not caught at the scene of the crime but the trial court relied solely on the testimonies of PW1 and PW2 and ignore the Appellants defence of alibi.
Counsel further submits that the identification parade was unnecessary in this circumstance as it is the same witness who pointed at the Appellants as the person who robbed him that is been call to identify the same person.
In reply to argument of the Respondent, Counsel submits that the case of Otti v. State (1991) 8 NWLR (Pt.207) 103 @ 166 cited in support of his argument is not helpful to the Respondent in this case as the facts and circumstances are different and inapplicable to this present case.
Counsel also submits that the Appellants were previously not known to the alleged victims. The robbery was done at night; the robbers held guns and the fear could not have given the victims the opportunity to see the salient features of the alleged robbers to spontaneously identify them with certainty and for the trial court to hold that the Appellants were positively fixed to the scene of the crime.
The Respondent submits that the burden on the prosecution to establish beyond reasonable doubt has been accomplished. That the prosecution successfully established against the Appellants, the following ingredients.
i. Theft by the accused person.
ii. The causing of hurt or wrongful restraint on the victim by the accused person
iii. That the act complained of were done in the process of committing the theft or in other to commit the theft and/or carry away the property obtained by the theft
iv. That the accused did the acts complained of voluntarily; and
v. That the accused person was armed with a dangerous weapon while committing the offence in question.
(Refer Bozin v. State (1985) 2 NWLR (Pt.8) page 465 @ 469.see also Njovens v State (1973) 5 SC 17 referred to) (Pp 1619 – 1620).
Counsel submits that the prosecution through the various witnesses has been able to discharge the burden placed on him that is, of proof beyond reasonable doubt and that the law does not require for proof beyond a shadow of doubt. That it is not in doubt that the incident of 30th/12/2004 was an armed robbery and the Appellants were among the robbers. (Refer to the testimonies of PW1 & PW2).
Counsel also submits that there is strong evidence fixing the Appellants to the scene of the crime as participies criminis and there is no exculpatory evidence in favour of the Appellants which gives the trial court no choice but to give weight to what is placed before him. (Refer Otti v. State (1991) 8 NWLR (Pt.207) page 103 @ 166)
What constitutes Armed Robbery, what must be proved and what standard of proof is required?
By the provisions of Section 1(2)(a) of Robbery and Firearms (Special Provisions) Act. 1990, and Section 138(1) of Evidence act, Armed Robbery is stealing with violence and prove in a criminal matter is set at the standard of beyond reasonable doubt. To succeed in prosecuting a case of armed robbery, the prosecution must prove the following:
1. That there was a robbery
2. That the accused/appellant was armed
3. That the accused/appellant while armed, participated in the robbery.
The standard required per Section 138 of the Evidence Act is proof beyond reasonable doubt. Where the prosecution proves the above ingredients the trial court appropriately convicts the accused person and the Court of appeal should affirm the conviction. (Nwaturuocha v. State (2011) 3 SCNJ 148 referred to) (P.1622, paras. C-E)” Musa Ikaria v. The State (2013) All FWLR (Pt.671) page 1463 @ 1482)
There is no doubt, that the provisions of Section 138() of the Evidence Act, the Respondent has the onus of proving its case against the Appellants beyond reasonable doubt. The implication is that the Appellant has no duty to proof their innocence. (See Babuga v. State (1996) 7 NWLR (Pt.460) p.279, and Morka v. State (1998) 2 NWLR (Pt.537) p.295).
Has the prosecution met the standard? Upon apprehension, the Appellants each raised a defence of alibi stating their location at the alleged time of crime to be outside Nigeria and in Cotonou. The coincidence of the duo being cited together on the street, boarding the same vehicle heading to the same direction; is striking. Although the Appellants each denied one another, they seem to have quite a lot in common. When confronted with the alleged crime, they each claimed to be in Benin Republic at the time of crime even though in different places-but in Benin Republic, nonetheless. They called no witness from Benin Republic to affirm their alibi! The learned Counsel for the Appellant said they had no such duty. A defence of alibi introduces a subject which calls into play the principle of evidential burden which requires some element of discharge, however minimal; this being a criminal matter. We had held earlier that the defence of alibi raised by each of the Appellant were feeble and without substance. That then fixes the Appellants at the scene of the crime. The Appellants dwelt at length at the identification of the Appellants. I do not agree with the distinction made by the learned Counsel for the Appellants. I find rather the cases of Odu v. State (supra) and Henry Otti. v. State (I1991) 8 NWLR (Pt.207) 103 @ 117 are indeed akin with the case at hand. The similarity with Henry Otti’s case is outstanding, that spontaneity of recognition run through both cases. Another look at the Henry Otti’s case tells the story better.
“On the 21st day of June, 1982, a lady by the name Titilayo Fatunbi went to cash a sum of N6,199.90 at a bank along Broad Street, Lagos. After collecting the money she hailed a taxi and asked to be conveyed to Apapa. She saw the driver alone in the car and was advised to take a back seat as the front door would not open, after moving a little from the front of the bank the driver stopped to pick up two men. On insisting that she was going to Apapa the driver told her that he wanted to go through Apongbon to link with the express way to Apapa. However, instead of making a turn to climb the bridge onto the dual carriage-way to Apapa, the driver crossed into Victoria Island and thence to Apese on ‘Lekki Peninsula. The appellant and his two friends now at large, stopped at Apese Beach and removed two strands of Tifilayo Fatunbi’s hair one each from the front and the back of the head respectively. They murmured some incantations she was to repeat after them, placing the strands of her hair on her lap. They then demanded for all valuables on her with the threat that her end would come if she did not comply. They took her money she withdrew from the bank with two cheques i.e. N6,199.90, her rings and earrings and bangles. They threw her out of the car and headed back towards Lagos. Another taxi cab arrived at the scene and P.W.I narrated her story to the driver; he gave her free ride to Tinubu Square and gave her N5 for her bus fare.
On the 29th June, 1982, barely a week after she was robbed of her money and jewelry, she saw the appellant in the same taxi cab with a passenger at Ojuelegba on Lagos Mainland. There was a traffic jam and she accosted the appellant and raised an alarm which attracted passers-by.
The appellant was taken to the police station. The P.W.1. I identified a cassette containing songs by Sunny Ade which albeit without much emphasis, that on the day in question his car now in issue was with a mechanic for repairs. It was not an alibi and he never pursued it at the trial Court and this that is, the Court of Appeal. The court dismissed the appeal and affirmed the sentence by the trial court.”
A point of clarity first.
Otti’s case was affirmed by the Court of Appeal at which Niki Tobi JCA (as he then was) Henry Otti v. State (1991) 8 NWLR (Pt.207) 103 @ 117 held that:-
“There is one vital aspect in the identification of the Appellant. And it is the spontaneous aspect of it. There is evidence that PW1 identified the Appellant immediately she saw him in the taxi. She first saw the taxi and rushed out from the bus in the heavy traffic. That was the first action she took. It was a spontaneous action. The second was that she immediately identified the Appellant and she grabbed him. In my humble view, where an identification is spontaneous and natural, trial court will not be wrong to attach weight to it, unless there are other exculpatory evidence in favour of the accused.”
At the Supreme Court, Belgore JSC (as he then was) in Henry Otti v. State (1993) 4 NWLR (Pt.290) 675 adumbrated on the instantaneous recognition of the accused by the victim. My lord held thus:-
“it is therefore to be restated that identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. The best identification was the instantaneous recognition of the car that was used to take the PW1 to the Apese/Lekki Beach and the recognition of the Appellant as the driver of that fateful day. There was hardly any need for lining up the Appellant among others for the PW1 to identify. It is not in all cases the that identification parade is necessary; and whereas in this case the PW1 right in the heavy traffic several miles away from the scene of the crime identified not only the driver but also the car, an identification parade is not only superfluous but completely unnecessary..(Ikemson v. The State (1989) 3 NWLR (Pt.110) 455).
Armed with these formidable pronouncements,I find no difficult in concluding this appeal.
There is clear evidence of threat of violence, helplessness in the victims whose privacy were invaded in the dark of the night. They were dispossessed of money and valuables under threat of violence with a gun.
Bodily injury is not a requirement under the provisions of Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria,2004.
It is not expected that armed robbers will go about parading themselves with their tools of terror during the day. That they were not found in possession of any weapon is therefore not a powerful fact to detract from the other evidence assembled against the Appellants.
The learned trial Judge who saw and heard the Appellants testify disbelieved them. I agree with the learned trial Judge that the Appellants were among the robbers,who assailed the PW1 and his neighbours on that faithful night of the 30th Day of December, 2004. I affirm the decision of the learned trial Judge in finding the Appellants guilty as charged in the counts of charges under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.
This appeal is dismissed as lacking in merit.
ADAMU JAURO, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, M.B. Dongban-Mensem, JCA. I entirely agree with the reasoning and conclusion contained therein, to the effect that the appeal is lacking in merit.
I however wish to say a word or two on the defence of alibi. Alibi, literally, means elsewhere. It simply means that the accused/appellant was somewhere else when the alleged crime was being committed and as such he could not have been the one that committed the said crime. For the defence to be relevant it must be timeously raised at the earliest opportunity. The accused must furnish the particulars of his alibi in detail, which includes his whereabouts and those present with him at the material time of the incident. Alibi is a very jealous defence, once raised the accused is foreclosed from setting up another defence. The implication therefore is whoever that puts up a defence of alibi is taking a great risk, because once he contends he was not at the scene he cannot turn round to say otherwise and raise any other defence. See Ibrahim v. State (1991) 4NWLR (Pt.186) 399, Ebre v. State (2001) 12 NWLR (Pt.728) 617 at 636.
Once defence of Alibi is raised, the prosecution is bound to investigate same. It should be stressed that for the defence to be worthy of investigation it should be precise and specific in terms of the place the accused was at the time of the incident. Failure to investigate it might be fatal to the prosecution’s case. Where however the prosecution adduced sufficient and acceptable evidence to fix the accused person at the locus criminis at the material time, there would be no need to investigate the alibi, as same is logically and physically demolished. See Sowemimo v. State (2004),11 NWLR (Pt.885) 515, Ozaki v. State (1990) 1 NWLR (Pt.124) 92, Ogoala v. State (1991) 2 NWLR (Pt.175) 509, Bozin v. State (1985) 2 NWLR (Pt.8) 465, Maikudi Aliyu v. State (2013) LPELR – 20748 (SC), Edo v. FRN (2001) 1 NWLR (Pt.695) 502 at 515 – 516, Osuagwu v. State (2013) All FWLR (Pt.672) 1602 at 1618, Azeez v State (2005) 8 NWLR (Pt.927) 316 at 327, Ani & Anor v. State (2009) 16 NWLR (Pt.1168) 443.
In the instant case, the defence of alibi cannot avail the appellants as they fail to give sufficient particulars of the alibi and there was evidence from the victims fixing them to the locus criminis. Consequent upon the foregoing, the appeal is grossly lacking in both merit and substance. For the above and fuller reasons contained in the lead judgment which I adopt as mine, the appeal is hereby dismissed.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Lord M.B. Dongban-Mensem J.C.A. I agree with the reasoning and conclusion reached. I wish only to add a little contribution on the issue of alibi raised by the appellant. In raising a defence of alibi, an accused person is simply saying that he was not at the place that the offence was committed. The concept of alibi has been the subject of numerous decisions of our courts. I will cite a few of the decisions in order to extrapolate the essential elements of the concept.
In Ogoala vs. The State (1991) 2 NWLR Part 175 P.509 at P.521 the Supreme Court per Nnaemeka-Agu JSC stated the law thus-
“It is no proper way of raising a defence of alibi for an accused person to show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed unless he can show that because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. It is of course when the defence of alibi has been duly raised and the accused person additionally discharges the evidential burden incumbent on him by giving particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and at the trial disprove the alibi, is cast on the prosecution. Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi. It is part of the onus cast on the prosecution to disprove the alibi.”
In Akpan vs. The State (1991) 3 NWLR Part 162 P.647 at P.655, the Supreme Court per Wali JSC stated thus:
“The defence of alibi when raised is to show that the appellant was not at the scene of the crime when it was committed. In fact the word ‘alibi’ means elsewhere. The law is that where such defence is raised by the defence and sufficient particulars proved, the prosecution has a duty to investigate it”.
The authorities it seems to me, are saying that there is a shared burden of proof regarding the question of alibi. In the case of the accused, his burden is to disclose the particulars of the other place where he was and those he was with at the time of the commission of the crime. On the part of the prosecution, the burden is to investigate the claims of the accused. The evidential burden of an accused does not begin and end with simply stating that he was elsewhere. No, he must give particulars to buttress his assertions. The appellants said that they were at Igolo in the Republic of Benin. They ought in my view, do more than just saying so. They ought for example, state that they have travel documents to confirm their assertion or better still, produce the travel documents to the police. That way, they would have discharged their own part of the burden. It would then be left for the prosecution to investigate the veracity of their claims and the authenticity of their travel documents to disprove the alibi. It is certainly in my view, not enough to sit back and smugly claim to be in the Republic of Benin at the time of the commission of the offence.
For the above reasons and the fuller and better reasons given in the lead judgment, I agree that the appeal lacks merit.
Appearances
Ikenna Okoli with I.A. Saka and Nnamdi UomuayaFor Appellant
AND
O. Ogunsanwo (ACSC) Ogun State MOJ with W. A. Onawole (SC)For Respondent
