ABUBAKAR MOHAMMED v. THE STATE
(2011)LCN/4626(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of June, 2011
CA/I/126/05
RATIO
INTERPRETATION OF STATUTE: THE PROVISIONS OF SECTIONS 9 (2) (3), 12 (5), AND 13 (C) OF THE ROBBERY AND FIREARMS ETC ACT VIS-A-VIS SECTION 174 OF THE 1999 CONSTITUTION AS TO WHETHER THE ATTORNEY-GENERAL OF A STATE CAN VALIDLY PROSECUTE ROBBERY CASES IN STATE HIGH COURTS WITHOUT OBTAINING THE FIAT OF THE ATTORNEY-GENERAL OF THE FEDERATION
The Robbery and Firearms etc Act has in-built provisions in Sections 9 (2) (3), 12 (5), and 13 (c) empowering the Attorney-General of a State to enforce the Act where its provisions are violated in the state concerned Section 9 (2) and (3) thereof provides in this vein: “(2) Prosecutions for offences under this Act shall be instituted by the Attorney-General of the state or, where there is no attorney-General, the Solicitor-General of the State in respect of which the tribunal was constituted or by such officer in the Ministry of Justice of that State as the Attorney-General or the solicitor-General, as the case may be may authorize so to do: Provided that the question whether any authority or what authority has been given in pursuance of this subsection shall not be enquired into by any personother than the Attorney-General, or the Solicitor-General, as the case may be, may authorize so to do: (3) Prosecutions in respect of any person caught committing an offence under Section 1 (1) of this Act shall be instituted within seven days after the receipt by the Attorney-General of the state concerned or where there is no Attorney-General, by the solicitor-General of the state, as the case may be, of the file containing completed police investigation in respect of the offence.” Section 12(5 ) of the Act strengthens the position of the Attorney-General of the State thus: “(5) Police investigation into cases relating to any person caught committing an office under section 1 (2) of this AA shall be concluded not later than seven days after the arrest of the offender and the file containing particulars of such investigation shall be sent to the Attorney-general of the State concerned or, where there is no Attorney-general, to the solicitor-General of the State, not later than seven days after the conclusion of the investigation. ” For the avoidance of doubt, clause 18 (a) of the Schedule to Act (as amended) puts the finishing touch on the role of the Attorney-General of the State under the Act thus: “(c) Any reference to any other person, office or authority of a State shall be construed as being a reference to the person, office or authority of the Federation with like status, designation or powers; and in particular, any reference to the Attorney-General of a State shall be construed as being a reference to the Attorney-General of the Federation.” In my respectful view, the above reproduced provisions of the Act rest the Attorney- General of a state with prosecutorial powers under the Act. I do not, with deference, perceive any conflict between the said prosecutorial powers and the general powers of prosecution conferred by Section I74 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (1999 constitution) on the Attorney-general of the Federation. The constitutional powers of the Attorney-General of the Federation under Section 174 of the 1999 Constitution are intact and unaffected by the above considered provisions of the Act, in my view. Whenever the Attorney-General of the Federation considers; it necessary to intervene in any prosecution under the Act by way of taking over or discontinuing prosecution initiated by the Attorney-General of a state, the latter would give way or yield ground to the former under the overriding Section 174(1) (b) and (c) of the 1999 Constitution. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PLEA OF AN ACCUSED PERSON: WHETHER THE LUMPING TOGETHER OF THE PLEA OF THE ACCUSED PERSONS BY THE COURT WILL VITIATE THE TRIAL
Though the pleas of appellant and his co-accused were not taken separately or individually as should be the case with criminal trials where criminal liability is several, the said procedure of lumping together their pleas by the court below (supra) did not vitiate their trial as explained/held by the Supreme Court in the case of Edun and Others v. Inspector-General of Police (1966) 1 ALL NLR 17 at page 21. The concurring judgment of Iguh, J.S.C. (as he was) in Udeh v. The State (1999) 7 NWLR (pt. 609) at page 24 expressly followed Edun v. Inspector-General of Police (supra) in elucidation of the lead judgment elevating it to the status of judgment the court as follows: “In Jame Edun and other v, Inspector-General of Police (1966) 1 All NLR 17 at 21, the amendment of a charge was granted by a Warri Chief Magistrate on the application of the prosecutor. The record of proceedings went thus- “Amendment granted, Amended charge read to accused persons and they plead not guilty.” The trial then proceeded and the appellants’ convictions web affirmed by the High Court. On appeal to this court, one of the main issues argued went along the same line as is urged upon us by learned counsel for the appellant in the present appeal. The appellants’ contention in that appeal was that the record failed to show that each of the accused persons was called upon to plead separately to the amended charge and that this irregularity was fatal to their convictions. Dismissing this submission, this court, per Brett, J.S.C. observed thus – “We do not regard the first submission as well founded. It would have been better if the Chief Magistrate had written ‘each pleads not guilty’ Instead of – ‘they plead not guilty,’ But they were represented by counsel, who took no objection to the course adopted, and as no attempt has been made to supplement the record by any further evidence of what took place, we think it may safely be assumed that the correct procedure was followed. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION OF STATUTE: PROVISION OF SECTION 215 OF THE CRIMINAL PROCEDURE LAW OF OGUN STATE 1978 AS TO THE GUIDELINES FOR THE ARRAIGNMENT OF AN ACCUSED PERSON
Section 215 of the Criminal Procedure Law of Ogun State 1978 provides: “The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served there with”. PER SIDI DAUDA BAGE, J.C.A.
ARRAIGNMENT OF AN ACCUSED: PRINCIPLES GUIDING THE ARRAIGNMENT OF AN ACCUSED PERSON AND TAKING OF HIS PLEA
The Supreme court in Kajubo us. The state (1988) 1 NWLR (pt.73) 721, provided the following guideline on arraignment of an accused person and the taking of his plea:- ( 1) That the accused person to be tried shall be placed before the trial court unfettered (2) The charge shall be read and explained to him in the language he understands to the satisfaction of the trial court, by the registrar of the court or other officer of the court, and (3) The accused person shall then be called upon to plead instantly to the charge, and (4) The plea of the accused shall also be instantly recorded. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
ABUBAKAR MOHAMMED Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appellant was tried, convicted and sentenced to death by the High Court of Justice of Ogun State holden at Otta for the offences of conspiracy to commit armed robber and armed robbery contrary to sections 5 (b) and 1 (2) respectively of the Robbery and Firearms (special Provisions) Act 1990 (as amended) hence the appeal.
In a nutshell, appellant was tried along with other persons. The third person was discharged and acquitted. Appellant and the other person were said to have robbed sundry persons of various sums of money and assorted personal effects while armed with guns and a sharp knife on 15.2.1999. An alarm attracted people to the vicinity of the robbery contemporaneous with the robbery operation. The appellant and one Lateef Sadiku were sighted around the vicinity of the robbery incident carrying bags. They were arrested. The bags were searched. Some items belonging to the PW1-PW6 were recovered from the bags carried by appellant and his companion. Both of them were charged to court.
Appellant’s version was complete denial of involvement in the offence charged. He maintain in the court below that he trades in tomato, fruits or vegetable. That on the fateful day at about 5.40 a.m. he was on his way from the mosque after morning prayers. Some security men apprehended him. They beat him. They accused him of participating in the robbery operation that took place in the neighbourhood. That at the time of his apprehension he was carrying a nylon bag and a cap. Appellant was later taken in custody to the police station. There he saw the other accused persons for the first time. The police urged him to confess the crime. He maintained his innocence. The police went ahead to unilaterally write down a statement confessing commission of the crime. He denied on oath that he made the confessional statements in Exhibits 36 and 37.
The court below accepted respondent’s version of the incident and rejected the appellant’s case. It convicted him as charged.
An amended notice of appeal conveying nine grounds of appeal dated and filed 22.11.2010, by leave of court contested appellant’s conviction and sentence by the court below. In a robust brief of argument prepared by Mr. Chino Obiagwu of learned counsel to the appellant on 29.4.08 and filed or 15.5.08, but deemed duly filed on 23.11.2010, five issues were distilled for arguments on the appeal couched thus:
“(a) Whether the Attorney General of Ogun State can validly file information for the trial of the appellant for an offence under an Act of the National Assembly without first obtaining, and proving by evidence that same havebeen obtained, the fiat of the Attorney General of the Federation?
(b) Whether the trial court was right when the Appellant was made to plea together to all the six (6) counts on the information and whether such procedure was not an infringement of Section 215 of the Criminal Procedure Law of Ogun State 1978 and Section 36 (6) (a) of 1999 Constitution.
(c) Whether the identity of the Appellant has been established beyond reasonable doubt as person who participated in the robbery.
(d) Whether the prosecution has proved its case beyond reasonable doubt.
(e) Whether the learned trial judge properly Evaluated the evidence of the appellant, and if he did not, whether it occasioned a miscarriage of justice?”
The first issue for determination was tied to ground 1 of the appeal.
It was canvassed that the offences for which appellant was prosecuted are Federal offences prosecutable in the first instance by the Attorney-General of the Federation under Section 174 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) or by the Attorneys-General of the Federation acting under a fiat from the Attorney-General of the Federation which was not the case here contrary to the decisions in Amadi v. Federal Republic of Nigeria (2008) 2 NWLR (Pt.8) 483; The Queen v. Owoh and others (1962) ALL NLR (Pt.2) 659; consequently, the failure of respondent to prove in the court below by annexing the fiat given to the Attorney-General of Ogun State by the Attorney-General of the Federation to the proofs of evidence, the court below lacked the jurisdiction to try the appellant for a federal offence.
Ground 5 of the amended notice of appeal was linked to the second issue for determination. Submitting on the second issue, the appellant urged that the court below was wrong to take and record the plea of the appellant and the other accused persons together vide section 215 of the Criminal Procedure Law, 1978, of Ogun State read along with Section 36 (6) (a) of the 1999 Constitution and the cases of Josiah v. State (1985) 1 NWLR (pt. 1) 125 Kajubo v. State (1988) 1 NWLR (Pt. 73) 721, Tobby v. State (2001) 10 NWLR (pt. 720) 23, Duyal v. Commissioner of Police (1962) 2 ALL NLR 821 and Archbold on Criminal Pleading and Evidence Practice (2002 Edition) 4-98, favouring separate recording of p leas in criminal trials.
The third issue linked to ground 3 of the notice of appeal ventilated that appellant was not arrested at the scene of crime therefore an identification parade was necessary to determine his identify as one of the culprits nor did the court below caution itself before relying on the identification evidence of the witnesses for the respondent when the said witnesses did not know the appellant before and were confronted with the offenders for a very short time which deprived them of the full opportunity of observing their physical features, therefore the court below should not have relied on the said pieces of evidence to convict the appellant vide Archibong v. State (2004) 1 NWLR (pt. 855) (pagination not supplied), Ebiri v. State (2005) 11 NWLR (pt. 885) 585, Asakitikpi v. State (1999) 5 NWLR (pt. 296) 645, and Abudu v. State (1985) 1 NWLR (pt.1) 55.
It was submitted on the fourth issue which was tied to ground 3 of the notice of appeal that though there was a robbery, it was not proved that arms were used by the robbers in view of the report of burglary and stealing lodged by the victims of the robbery at the Divisional Crime Branch Office of the Nigeria Police at Sango Ota, as stated by PW8 in his evidence in the court below coupled with the fact that no arms were recovered either from the appellant or anywhere else; nor did the respondent prove by positive evidence that the appellant was among the robbers at the time of the alleged robbery incident in the dark night of 15.2.99, as stated by the PW 6; nor did to prosecution investigate the alibi of appellant that he was coming from a mosque at the material time, consequently, the appellant’s conviction ought not to stand vide Ani v. State (2003) 11 NWLR (pt, 830) (pagination not supplied), Adeogun v. State (2007) 46 WRN 1 at 202, and Ebere v. State (2001) 12 NWLR (pt. 728) 617 at 532.
The fifth issue covered grounds 6, 7 and 8 of the amended notice of appeal where it was contended that the mandatory death sentence under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1090 (as amended) constitutes cruel, arbitrary, inhuman and degrading punishment in breach of Section 34 (1) (a) of the 1999 Constitution and Article 5 of the African Charter read with Section 4,(6),33 (dealing with fair hearing), and 36 (4) of the 1999 Constitution and Articles 4 and 26 of the African Charter.
It was emphasized here that the imposition of the death penalty on a convict without affording him the opportunity to be heard before the sentence denied him of his basic humanity and incompatible with fundamental human rights as held in the cases of Reyes v. The Queen (2002) 2 AC 235. R. V. Hughes (2002) 2 AC 259, Fox v. R (2202) AC 284, Boyce and Joseph v. The Queen (2005) 1 AC 400, Matthew v. The State (2005) 433, Bowe and Davis v. The Queen (2006) UKPC 10, Pennsylvania ex rel Sullivan v. Ashe (1937) 302 US 280, Francis (afantayeni and Others v. Attorney-General unreported Constitutional case No. 12 of 2005, delivered on 27.4.2007 (Malawi), Bachn Singh v. The State of Punjab 2 SCC 684, Mithu v. Punjab (1983) 2 SCR 690 S v. Makwanyane (1955) (3) SA 391, Constitutional Court Decision No. 23/1990 (x.31) AB of Hungary, also Articles 6 (1) and (2) and 7 of the United Nations Covenant on Civil and Political Rights (ICCPR) read with Lubuto v. Zambia (Communication No. 390/1990: 17 November 1995), Chisanga v. Zambia (Communication No. 1132/2002; 18 November 2005), Eversley Thompson v. Saint Vincent and the Grenadines (Communication No. 806/1998, 5 December 2000), Kennedy v. Trinidad and Tobago (.Communication N 998, 28 March 2002, Carpo v. The Philippines (Communication No. 1077/2002, 15 May 2003, Downer and Tracey Report No. 41/00, 13 April 2002, Baptiste v. Grenada Report No. 38/00, Edwards v. The Bahamas Repoft No. 48/01, 4 April 2001, Soering v. UK (1989) 11 EHRR 439.
Consequently, using the canon of purposive interpretation of statutes and taking advantage of what obtains in the other jurisdictions (supra) Kanu v. The State (1998) 2 SCNJ 1 should be distinguished from the present case on the premise that the appellant is not challenging the death penalty per se but that he cannot be sentenced to death arbitrarily without the opportunity to show that the death penalty is not appropriate to the circumstances of his case or without affording the appeal court opportunity to review it vide Ogugu v. The State (1996) (citation not supplied), Neville Lewis v. Attorney-General of Jamaica (2001) 2 AC 50 (pc). Thomas v. Baptiste (2000) 2 AC 1 (PC), Yassi The Attorney-General (unreported) Court of Appeal, 26th June, 1996 followed in Triveni ben v. State of Gujarat (1997) LRC 425 at 447, Eversley Thompson v. St Vincent and The Grenadines (CCPR/C/70/1/806/1998, 30th October (200), Minister of Home Affiars (Bermuda) v. Fisher (1980) AC 319 (PC) 328-329, R v. Big M. Drug mart Ltd. (1985) 18 DLR (4th) 321 – 395-396, S v. Zuma (1990) (2) SA 642 (CC) 13-19, and Edwards v. The Bahamas (Reports No. 48/011 4 April 2001), Weems v. US 217 US 349. Trop v. Dulles 356 US 86 and Tyrer v. UK (1981) 2 EHRRI.
Appellant contended further on the fifth issue that the mandatory death sentence under section 1 (2) (a) of the Robbery and Firearms Act (supra) breaches the principle of the separation of powers contained in sections 4-6 of the 1999 Constitution by removing the inherent discretionary powers of sentencing reserved for criminal courts and taking away the sentencing lowers of the court to vest them in the Executive arm of Government to decide by selection to terminate the life of a convict sentenced to the death penalty vide sections 6 (6), 175 and 212 of the 1999 Constitution considered with the cases of Sillery v. The Uaneous Offences Tribunal (1995) 4 NWLR (pt. 387) 59, NEC v. Nzeribe (1991) 5 NWLR (Pt.192) 458, hinds v. The Queen (supra), S v. Dodo (2201) (5) BCLR 423, Browne v. R (200) AC 45, DPP v. Mollison (No. 2) (2003) 2 NWLR 1160, Yassin v. Attorney-General of Guyana (unreported) 30 August 1996 and Lauriano v. AG (1995) 3 BZ LR 77.
Appellant contended further on the fifth issue that the mandatory death sentence under Section 1 (2) (a) of the Robbery and Firearms etc act (supra) breaches the principle of the separation of powers contained in sections 4-6 of the 1999 Constitution by removing the inherent discretionary powers of sentencing reserved for criminal courts and taking away the sentencing powers of the court to vest them in the Executive arm of Government to decide by selection on when to terminate the life of a convict sentenced to the death penalty vide sections 6 (6), 175 and 212 of the 1999 Constitution considered with the cases of Sillery v. The Queen (1981) 35 ALR 227, Okoroafor v, Miscellaneous Offences Tribunal (1995) 4 NWLR (pt, 387) 59, NEC v. Nzeribe (1991) 5 NWLR Dodo (2001) (5) BCLR 423, Brone v. R (200 AC 45, DPP v Mollison (No.2) (2003) 2 NWLR 1160, Yassin v. Attorney-General of Guyana (unreported 30 August 1996, and Laurianbo v. Attorney-General (1995) 3 BZ LR,77.
Respondent’s brief of argument was put together by Mr. Akin Osinbajo, the learned attorney-General of Ogun State, on 22.12.2010 and filed on the same date in which the issues for determination of appellant were adopted and argued seriatim as follows:
It was contended on the first issue that by section 9 (2) of the Robbery and firearms etc Act (supra) the Attorney-General of a state foes not need the fiat of the Attorney-General of the Federation to prosecute robbery cases in State High Courts.
Respondent submitted on the second issue that the record of the court below reflected the reading of the charge to appellant which he indicated he understood before his plea was recorded, therefore Section 215 of the Criminal Procedure Law or C.P.L. (supra) was complied with and the contention of appellant to the contrary be discounted following the case of Uche v. The State (1999) NWLR (pt. 609) 1 at 20.
Respondent submitted in the alternative on the second issue that a prima facie case was made out against the appellant, therefore even if section 215 of the C.P.L. was not fully complied with, the appropriate order ought to be a retrial of the case vide Yesufu Abodundu & Others v. The Queen 4 F.S.C.70 at 71-72, Abu Ankwa v. The State (1969) l ALL NLR 133, Kajubo v. The State (1988) 1 NWLR (pt. 73) 721, Ewe v. The State (1992) 5 NWLR (pt. 246) 147, Uche v, The State (1999) 7 NWLR (pt. 609) 1, Yahaya v. The State 9 NSCQR 36 and Umaru v. The State (2008) 42, WNR 60 at 82.
Respondent submitted on the third issue that the evidence against appellant that he was armed together with his comrades – in – crime in the course of the commission of series of robberies on 15.2.1999 at No. 24 Ajana Street, Ijako Ota and No. l Oladosu Adigun Street, Isorosi Ota in Ogun State was conclusively established by the evidence of the PW1, PW4 and PW7, notwithstanding the non production in evidence of the offensive weapons used in the robbery operations by appellant and his comrades which was not necessary vide Gbadamosi v. The State (1991) 5 NWLR (pt, 196) 182 and Akinyemi v. The State (1999) 6 NWLR (pt. 607) 449; also, identification parade was unnecessary as the appellant was caught with some of the robbed items soon after the robbery and was on that account presume to be one of the robbers pursuant to Section 149 (a) of the Evidence Act considered with the cases of Martins v. The State (1997) 1 NWLR (pt. 481) 355 and Aremu v. The State (1991) 7 NWLR (pt. 301) (pagination not supplied); and that the defence of alibi was not raised in appellant’s statement to the police but at the defence stage of the case relieving the respondent of the burden to investigate same vide Ozaki v. The State (1990) 1 NWLR (pt. 124) (pagination not supplied); Onyegbu v. The State (1989) 3 NWLR (pt. 110) (pagination not supplied)
Respondent submitted on the fourth issue that appellant did not articulate the issue in his brief of argument and, having not proffered argument on it, the issue ought to be deemed abandoned and should be struck out vide Adepate v. Babatunde (2002) 4 NWLR (pt. 756) 99, Jibrin v. Baba (2004) 16 NWLR (Pt.889) 243 and Mang v. Ibe (2000) 14 NWLR (pt. 688) 596.
It was contended on the fifth issue that the appellants did grounds 6, 7 and 8 of the notice of appeal dated 16.10.2006 have no issue for determination covering rendering arguments on them redundant vide Adetona v. Edet (2004) 15 NWLR (pt. 899) 338 and Jibrin v. Baba (supra) at 243; respondent contended in the alternative that the appellant was properly sentenced to death as the section of the Act under which he was tried dir I not provide for the court’s discretion in the matter and conformed to Section 33 (1) of the 1999 Constitution read with the case of Akinyemi v. The State (1999) 6 NWLR (pt.607) 499 at 465.
Appellant’s reply brief dated 24.1.2011, but filed on 25.1.2011. but filed on 25.1.2011, contended that the constitutional requirement in Sections 174 (2) and 211 (2) of the 1999 Constitution overrides Section 9 (2) of the Robbery and Firearms etc Act (supra) rendering the former null and void vide Momoh v. Fache (2007) 42 WRN 131; that the fifth issue was properly distilled from the grounds of appeal and should be considered by the court regardless of its omission in the summary of issues for determination; and, that the appeal should be allowed in consequence.
The issues for determination formulated by appellant are composite and shall guide me on the appeal.
The Robbery and Firearms etc Act has in-built provisions in Sections 9 (2) (3), 12 (5), and 13 (c) empowering the Attorney-General of a State to enforce the Act where its provisions are violated in the state concerned Section 9 (2) and (3) thereof provides in this vein:
“(2) Prosecutions for offences under this Act shall be instituted by the Attorney-General of the state or, where there is no attorney-General, the Solicitor-General of the State in respect of which the tribunal was constituted or by such officer in the Ministry of Justice of that State as the Attorney-General or the solicitor-General, as the case may be may authorize so to do:
Provided that the question whether any authority or what authority has been given in pursuance of this subsection shall not be enquired into by any person\other than the Attorney-General, or the Solicitor-General, as the case may be, may authorize so to do:
(3) Prosecutions in respect of any person caught committing an offence under Section 1 (1) of this Act shall be instituted within seven days after the receipt by the Attorney-General of the state concerned or where there is no Attorney-General, by the solicitor-General of the state, as the case
may be, of the file containing completed police investigation in respect of the offence.”
Section 12(5 ) of the Act strengthens the position of the Attorney-General of the State thus:
“(5) Police investigation into cases relating to any person caught committing an office under section 1 (2) of this AA shall be concluded not later than seven days after the arrest of the offender and the file containing particulars of such investigation shall be sent to the Attorney-general of the State concerned or, where there is no Attorney-general, to the solicitor-General of the State, not later than seven days after the conclusion of the investigation. ”
For the avoidance of doubt, clause 18 (a) of the Schedule to Act (as amended) puts the finishing touch on the role of the Attorney-General of the State under the Act thus:
“(c) Any reference to any other person, office or authority of a State shall be construed as being a
reference to the person, office or authority of the Federation with like status, designation or powers; and in particular, any reference to the Attorney-General of a State shall be construed as being a reference to the Attorney-General of the Federation.”
In my respectful view, the above reproduced provisions of the Act rest the Attorney- General of a state with prosecutorial powers under the Act. I do not, with deference, perceive any conflict between the said prosecutorial powers and the general powers of prosecution conferred by Section I74 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (1999 constitution) on the Attorney-general of the Federation.
The constitutional powers of the Attorney-General of the Federation under Section 174 of the 1999 Constitution are intact and unaffected by the above considered provisions of the Act, in my view.
Whenever the Attorney-General of the Federation considers; it necessary to intervene in any prosecution under the Act by way of taking over or discontinuing prosecution initiated by the Attorney-General of a state, the latter would give way or yield ground to the former under the overriding Section 174(1) (b) and (c) of the 1999 Constitution.
The first issue is, accordingly, resolved against the appellant to the effect that the Attorney-General of Ogun State had the powers and standing as the designated person or authority under the above quoted self-serving provisions of the Act to prosecute the appellant for the offence said to have been committed by him against the Act within the territorial limits of Ogun State, without obtaining a fiat from the Attorney-General of the federation.
The printed record of the appeal reflects at page 13 that on 15.5.2002, when the appellant and his co-accused persons were brought before the court below the following transpired:
Monzor owoyemi, appears for the accused persons E. Fadinam S.C. appears for the State. Mr Fadina, informs the court that he is prepared to go on.
The charge is read and explained to the 2nd and 3rd accused persons in Yoruba and having perfectly understood same, they all plead not guilty to the 6 count charge.”
The charge is then read and explained to the accused person in Hausa and having perfectly understood same pleads not guilty to the 6 count charge.
The group or community recording of the response to charge as shown above was held to be in compliance with the requirements of proper arraignment of an accused person especially where the accused is represented by counsel and no objection was taken to the procedure by counsel in the court of trial as happened in the court below – see Udeh v. The state (1999) 7 NWLR (pt. 609) page 1 at pages 1 at 18-19 where the Supreme Court held in the lead judgment of Ayoola, J.S.C., (as he was) thus:
“It is difficult to fathom the logic in the argument which, in effect, is that the trial Judge should have stated that the charge had been read to each of the accused persons, or: that only separate reading of the charge meets with the requirements of section 333. It would manifestly absurd to suggest that if there were twenty or more jointly accused persons, the charge should be read twenty times, notwithstanding that the charge may have mentioned each of the accused as the joint participant in the crime charged. The provisions of section 333 cannot be interpreted to lead to such absurdity. When, therefore, section 333 provides that the charge shall be read over and explained over to the person to be tried, it does not mean that it is to be read to each of them separately, so that the charge should be read as many times as there are persons to be tried. The reasonable view, in my opinion, is that when persons to be jointly tried on my charge or information are placed before the court, the requirement of section 333 is complied with by reading and explaining it to the group. What the law requires and what satisfies the purpose of the law is that each of them should understand the charge and that each of them should plead separately to it. The argument founded on the use of singular person in section 333 is misconceived having regard to the provisions of section 41 of the Interpretation Law which has been referred to in this judgment. It is not difficult to agree with salami, J.C.A. when he held that “the complaint of the appellant giving rise to the issue concerning the validity of the arraignment was predicated upon misapprehension of section 333 of the criminal procedure Law cap. 37 which is in pari materia with provisions of section 215 of the criminal procedure Act cap. 80 of the Laws of the federation of Nigeria, 1990.”
I hold that notwithstanding the joint reading and explanation of the charge, there was compliance with section 333 of the Criminal procedure Law Cap 37 and the court of Appeal was right to have so held.”
Though the pleas of appellant and his co-accused were not taken separately or individually as should be the case with criminal trials where criminal liability is several, the said procedure of lumping together their pleas by the court below (supra) did not vitiate their trial as explained/held by the Supreme Court in the case of Edun and Others v. Inspector-General of Police (1966) 1 ALL NLR 17 at page 21 The concurring judgment of Iguh, J.S.C. (as he was) in Udeh v. The State (supra) at page 24 expressly followed Edun v. Inspector-General of Police (supra) in elucidation of the lead judgment elevating it to the status of judgment the court as follows:
“In Jame Edun and other v, Inspector-General of Police (1965) 1 All NLR 17 at 21, the amendment of a charge was granted by a Warri Chief Magistrate on the application of the prosecutor. The record of proceedings went thus-
“Amendment granted, Amended charge read to accused persons and they plead not guilty.”
The trial then proceeded and the appellants’ convictions web affirmed by the High Court. On appeal to this court, one of the main issues argued went along the same line as is urged upon us by learned counsel for the appellant in the present appeal. The appellants’ contention in that appeal was that the record failed to show that each of the accused persons was called upon to plead separately to the amended charge and that this irregularity was fatal to their convictions. Dismissing this submission, this court, per Brett, J.S.C. observed thus –
“We do not regard the first submission as well founded. It would have been better if the Chief Magistrate had written ‘each pleads not guilty’
Instead of –
‘they plead not guilty,’
But they were represented by counsel, who took no objection to the course adopted, and as no attempt has been made to supplement the record by any further evidence of what took place, we think it may safely be assumed that the correct procedure was followed.”
See Nwana v, F.C.D.A (2004) 7 SCNJ 90 at 97-98 thus:
“A concurring judgment, in my humble view, has equal weight with or as a leading judgment. A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned.
However a concurring judgment is not expected to deviate from the leading judgment. A concurring judgment, as the name implies, must be in agreement with the leading judgment. A concurring judgment which does its own thing in its own way outside the leading judgment is not a concurring judgment but a dissenting judgment. The mere fact that concurring judgment mentioned in a positive and correct was what is not contained in the leading judgment does not make it wear the appellation of dissenting judgment. In so far as what is contained there is relevant to the issues in the; the judgment is relevant to the issues in the matter, the judgment is acceptable as a concurring judgment.”
The second issue is also resolved against the appellant to the effect that the court below as right in taking the appellants pleas to all the six counts in the information together, as the said procedure did not infringe Section 215 of the Criminal Procedure Law of Ogun State, 1978, and Section 36 (6) (a) of the 1999 Constitution, as appellant did not establish any miscarriage of justice from the procedure and had participated fully in respect of the trial of the charge against him in the court below.
The third to fifth issues are interwoven in relation to whether the respondent proved the case against appellant beyond reasonable doubt.
For convenience, the three issues shall be taken together. The 1st PW mentioned guns and dagger as the weapons the robbers were armed with at the time of the robbery attack on her residence at about 4 a.m. of 15.2.1999. She added in her testimony that the alarm which led to the cordoning off of the area by members of the vigilante organization. That appellant and one other person were arrested within the cordoned area at about 5 a.m. of the same day. No weapons were found on them nor were weapons recovered within the cordoned area or at all.
The 2nd PW testified that he was robbed of a wrist watch, plumbing tools and a jam key in his house at about 3 a.m. of 15.2. 1999. He did not state in his evidence that the robbers were armed at the material time; though he stated that they left his house to the house of 1st PW, some two houses away, and must have reached there at about 3.05 a.m. of the same day.
The 4th PW1 mentioned the carrying of guns and dangerous weapons by the robbers at the time they robbed him at about 3 a.m. of 15.2.1999, without indicating in his evidence how he was able to mark or identify the robbers at that time of the night when they suddenly awoke him from sleep. The 5th PW spoke of the robbers robbing him in his house at about 3 a.m, of the 15.2.1999; that they were arrested with. Four guns which was not mentioned by the 3rd PW, a member of the vigilante group that arrested appellant and his companion.
The 6th PW testified that the robbers did not rob him though they fired gunshots to intimidate him into opening his door for them which he resisted with his children until light came and they ran away.
The 7th PW’s evidence indicated that he was robbed at about 3.05 a.m. in his house by persons armed with guns and cutlasses. The witness admitted under cross-examination that the appellant was not arrested with a gun in the cordoned area but that he had a cutlass with him which was not supported by the 4th PW, the arresting team of vigilante organization in question.
The 8th PW, investigation police officer testified that the case reported against appellant and his companion on 15.2.1999 at Sango Ota Police station was burglary and stealing. The witness admitted under cross-examination the appellant and his companion were arrested with guns or offensive weapons.
Based on the totality of the above evidence, it is hard to appreciate how the court below arrived at the decision that the robbers were armed at be time of the robberies testified to by the 1st PW to the 8th pW. There was therefore doubt on whether the robbers were armed at the material time. I resolved the doubt in favour of the appellant accordingly – see the interwoven case of Lateef Sadiku v. The State in Appeal No. CA/126A/2005 decided on 12.4.2011, where this Court in treating the appellant’s case who was the co-accused of the present appellant and were arrested together at the same time held that the robberies were not proved beyond reasonable doubt to have been committed with arms or offensive weapons.
The appellant was not shown by the evidence for the respondent to be known to the 1st PW to the 7th PW prior to the incidents, nor was evidence proffered by respondent to establish with conviction that the victims of the robberies identified the appellant as one of the robbers at the material time.
The recovery of the, robbed items of the 1st PW, 2nd PW, 4th PW 5th PW and 7th PW inside the four bags carried by appellant and his companion in four bags less than two hours after the robberies linked the appellant with the robberies. His plea of alibi did not supply the particulars of the alibi in terms of the address of the mosque and the person(s) with him at the mosque at the material time for the police to investigate or verify. The police were in the circumstances not expected to be on a wild goose case in respect of the plea of alibi without particulars put forward by the appellant – see
The presumption of recent possession of the robbed goods under section 149 (a) of the Evidence act was therefore available for the respondent. The appellant did not give probable account of his possession of the goods or items found with him and openly identified in his presence by the victims of the robberies as their respective items. His evidence on the matter was evasive. Accordingly, the court below was right to invoke the presumption of recent possession under section 149 (a) of the Evidence Act to hold that the appellant was one of the robbers that robbed the victims of the robbery incidents testified to by witnesses for the respondent in the court below – 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) and Martins v. The State (1997) 1 NWLR (Pt.481) 355.
The other issue for determination relating to the propriety or otherwise of death sentence was not raised as an issue for determination from the grounds of appeal filed by the appellant, and is on that basis incompetent – see (supra) Adetona v. Edet (supra) and Jibrin v. Baba (supra) cited by Mr Akin Osinbajo for the respondent.
At any rate, the 1999 Constitution that preserves the right to life as a fundamental right under section 33(1) thereof curtails the right in the proviso thereof with the words:
“…save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”
Therefore, attractive and well researched as the submissions of the appellant on the death penalty is, the remedy lies legislative intervention; not judicial intervention be it proactive or revolutionary; all the more so the Apex Court has charted the course by stating that the death penalty is not unconstitutional – see Kalu v. State; see also Akinyemi v. The State (supra).
In the final analysis, the appeal is dismissed. But the sentence of the appellant under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990, (as amended), to death is hereby substituted to sentence under section 1 (1) of the Act to a term of imprisonment of twenty-one (21) years starting on 15.2.1999, when the appellant lost his liberty on account of the case.
SIDI DAUDA BAGE, J.C.A.: I had the advantage of reading in draft the judgment of my learned brother J.S. IKYEGH J.C.A., I agree with all the reasoning and the conclusion reached at the lead judgment, I can only add a few words of my own.
On the issue of taking the appellant’s plea to all the six counts in the information taking together whether such a procedure had infringed the provision of section 215 of the Criminal Procedure Law of Ogun State 1978 and section 36 (6) (a) of the 1999 Constitution.
Section 215 of the Criminal Procedure Law of Ogun State 1978 provides:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served there with”.
The Supreme court in Kajubo us. The state (1988) 1 NWLR (pt.73) 721, provided the following guideline on arraignment of an accused person and the taking of his plea:-
(1) That the accused person to be tried shall be placed before the trial court unfettered
(2) The charge shall be read and explained to him in the language he understands to the satisfaction of the trial court, by the registrar of the court or other officer of the court, and
(3) The accused person shall then be called upon to plead instantly to the charge, and
(4) The plea of the accused shall also be instantly recorded.
The provision of section 215 of the Criminal Procedure Law (supra) has been further reinforced by section 36 (6) (a) of the 1999 Constitution in order to guarantee fair hearing and trial of the accused. See: – Ewe vs. The State (1992) 6 NWLR (pt. 246) 747; Erekanure vs. The State (1993) 5 NWLR (pt. 294) 385; Oyediran v. Republic (1967) NWLR 122. Rufai vs. The State (2001) 7 SC (pt. 7) 140 at 144-146; Adeniji v. The State (2001) 5 SC (Pt.11) 100 at 104-106.
I agree entirely with the lead judgment that the taking of the appellant’s plea to all the six counts in the information together, the said procedure did not infringe the laws (Supra) stated above, and did not establish any miscarriage of justice.
The record clearly showed that the Appellant had participated fully in respect of the trial of the charge against him in the court below.
For this and all the other issues effectively dealt with in the lead judgment, I too have dismissed the appeal. I also abide by the sentence as contained in the lead judgment.
MODUPE FASANMI, J.C.A.: I had the opportunity of reading in advance the lead judgment of my learned brother IKYEGH, J.C.A. just delivered, I agree entirely with the reasoning and conclusions therein.
The appeal lacks merit and it is accordingly dismissed by me, I also agree with the consequential order made altering the offence of armed robbery to the lesser offence of robbery without firearms. Appellant is accordingly sentenced to twenty one (21) years imprisonment.
I abide with the consequential orders contained therein.
Appearances
For Appellant
AND
For Respondent
