LATEEF SADIKU V. THE STATE
(2011)LCN/4455(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of April, 2011
CA/I/126A/2005
RATIO
ALIBI: WHAT THE DEFENCE OF ALIBI ENTAILS; POSITION OF THE LAW ON THE DUTY IMPOSED ON THE ACCUSED AND THE POLICE WHERE HE RAISED THE DEFENCE AT THE EARLIEST OPPORTUNITY
The Supreme Court in the case of Emmanuel Eke V. The State (2011) 3 NWLR (pt. 1235) 589 at 606 paragraph 3 stated: “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 accuse to furnish the particulars of alibi to the police at the earliest opportunity. He must furnish his where about and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal. See: – Yanor V. The State (1965) NMLR 337; Queen V. Turner (1957) WRNLR 34; Bello V. I.G.P. (1956) SCNLR 113; Gachi V. The State 1965 NMLR 333; Odu & Anor V. The State (2001) 5 SCNJ 115 at 120 (2001) 10 NWLR (pt. 722) 668. The appellant defence of alibi at the time of investigation cannot be taken seriously, making the plea in his evidence at the trial a ploy which equates to an afterthought; it was to no avail in the circumstances”. PER SIDI DAUDA BAGE, J.C.A.
ALIBI: CONSEQUENCE OF THE FAILURE ON THE PART OF THE APPELLANT/ACCUSED TO PROVIDE THE SUFFICIENT PARTICULARS TO THE POLICE ON THE DEFENCE OF ALIBI RAISED BY HIM
The failure on the part of the appellant/accused to provide the sufficient particulars to the police on the defence of alibi raised by him denied him the opportunity to avail himself of its benefit. PER SIDI DAUDA BAGE, J.C.A.
ALIBI: WHETHER IT IS EVERY FAILURE OF THE POLICE TO INVESTIGATE AN ALIBI RAISED BY AN ACCUSED PERSON THAT IS FATAL TO THE CASE TO THE PROSECUTION
…it is a 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 to the prosecution. See: – Ochemaie V. The State (2008) 6-7 5.C. (pt. 11) 1; Udoebre V. The State (2001) 6 SCNJ 54; Obakpolor V. The State (1991) 1 SCNJ 91 at 106-107. PER SIDI DAUDA BAGE, J.C.A.
IDENTIFICATION PARADE: OBJECT OF IDENTIFICATION PARADE
The law is already settled that the object of identification parade is to test the ability of a witness to pick out from a group the person, if he is present, who the witness has said that he has seen previously on a specified occasion. Identification parade should be fair and should be seen to be fair, every precaution should be taken to see that they are so, and in particular to exclude any suspicion of unfairness or risk of erroneous identification through the witness, attention being directed specifically to the suspected person instead of equally to all person paraded. See: – Bozin V. State (1983) 2 NWLR (pt. 8) 465 at 471 paragraphs D-E; Ogala v. State (1991) 2 NWLR (pt. 175) 509 at Balogun V. A.G. Ogun State (2002) 4 M.J.S.C. 45 at 58. PER SIDI DAUDA BAGE, J.C.A.
OFFENCE OF ARMED ROBBERY: ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY THAT MUST BE PROVED BY THE PROSECUTION BEYOND REASONABLE DOUBT
…the essential ingredients of the offence of armed robbery each of which the respondent is by law enjoined to prove beyond reasonable doubt are: (a) There was robbery or series of robberies (b) The robbery was an armed robbery (c) The accused person took part in the robbery. See:-Oyebola V. State (2008) All FWLR (Pt. 402) 1175 Bozin V. State 1985 2 NWLR (Pt. 8) 465… PER SIDI DAUDA BAGE, J.C.A.
PROOF OF GUILT OF THE ACCUSED: HOW THE GUILT OF AN ACCUSED PERSON MAY BE ESTABLISHED BY THE PROSECUTION
The Law is already settled on how the guilt of an accused person can be established by:- (a) Evidence of an eye witness (b) Circumstantial evidence and (c) Confessional statement. PER SIDI DAUDA BAGE, J.C.A.
TENDERING OF WEAPON: WHETHER IN PROVING THE OFFENCE OF ARMED ROBBERY IT IS REQUIRED OF THE PROSECUTION TO TENDER THE WEAPON USED IN THE ROBBERY
In proving the offence of armed robbery it is not required of the prosecution when it based its case of armed robbery on possession of fire arms by an accused person to produce evidence of the use of the fire arms by its having been fired at the time of the commission of the robbery. It is sufficient if the prosecution establishes that the accused person was armed with a fire arm or was in company of any person so armed at the time of the commission of the offence. There is no principle of law requiring the prosecution to tender in evidence the weapon used in a robbery in order to established the guilt of an accused person. 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 SHAGBOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
LATEEF SADIKU Appellant(s)
AND
THE STATE Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ogundepo J. of the High Court of Justice, Ogun State, Ota Judicial Division delivered on the 16th August, 2004 in charge No. HCT/16R/2000 Abubakar Mohammed and 2 Ors. V. The State, in which the learned trial judge convicted and sentenced the 1st and 2nd accused persons, Abubakar Mohammed and Lateef Sadiku to death for conspiracy to commit armed robbery under section 5(b) of the Robbery and Fire arms (special provisions) Act cap 398 laws of Nigeria 1990 as amended and armed robbery under section 1(2) (a) of the same Act cap 398 Laws of Nigeria 1990 as amended. The 3rd accused Idowu Shittu was discharged and acquitted of the offences earlier on charged along with the 1st and 2nd accused persons. The 1st and 3rd accused persons and the Appellant (2nd accused person) pleaded not guilty to the charges. The charge at the lower court as contained at page 7 of the Record of Appeal reads as follows:
COUNT ONE:
That you Abubakar Mohammed (M) Lateef Sadiku (M) Idowu Shittu (M) and others now at large on or about the 15th day of February, 1999 at Isorosi Area, Sango Ota in the Ota judicial Division conspired together to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to section 5 (b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments E.T.C) Act 1999.
COUNT TWO:
That you Abubakar Mohammed (M) Lateef Sadiku (M) Idowu Shittu (M) and others now at large on or about the 15th day February, 1999 at Isorosi Area, Sango Ota in the Ota Judicial Division while armed with guns and a sharp knife rabbed one Alaba George (F), of N35,000.00 cash, cupion material, sequence material, jewelries, 3 wrist watches, 10 native dresses (Agbada) one native cap, and one jacquard material and thereby committed and offence contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment E.T.C) Act 1990.
COUNT THREE:
That you Abubakar Mohammed (M) Lateef Sadikou (M) Idowu Shittu (M) and others now at large on or about 19 day of February, 1999 at Isolosi Area, Sango Ota in the Ota Judicial Division while armed with guns and a sharp knife robbed one Nureni Adigun of N1,850.00 cash, 2 lock sets, and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment E.T.C) Act, 1999.
COUNT FOUR:
That you Abubakar Mohammed (M) Lateef Sadikou (M) Idowu Shittu (M) and others now at large, on or about the 15th day of February 1999 at Isolosi Area, Sango Ota in the Ota Judicial Division while armed with guns and sharp knife robbed one Yinusa Balogun of N3,500.00 cash, one Trident Cassette Player and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and Firearms (Special, Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendment E.T.C) Act, 1999.
COUNT FIVE:
That you Abubakar Mohammed (M) Lateef Sadikou (M) Idowu Shitteu (M) and others now at large, on or about the 15h day of February, 1999 at Isolosi Area, Sango Ota, in the Ota Judicial Division white armed with guns and a sharp knife robbed one Akeem Oyelami of N2,000.00 cash, one Nippon Radio Cassette Player and a complete baby lace material and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and Fire arms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments E.T.C) Act 1999.
COUNT SIX:
That you Abubakar Mohammed (M) Lateef Sadikou (M) Idowu Shittu (M) and others now at large, on or about the 19 day of February, 1999 at Isolosi Area, Sango Ota in the Ota Judicial Division while armed with guns and sharp knife robbed one Oyelami Abiola of one travelling bag, one fila cap and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and Fire arms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments E.T.C Act, 1999.
Briefly the prosecution’s case at the High Court was that, on the 15th February, 1999, there were series of robberies at No. 24 Ajana Street Ijako Ota and No.1 Oladosu Adigun Street Isorosi, Ota Ogun State. The premises were invaded by a gang of robbers armed with guns, daggers, cutlasses and sticks. The armed robbers overpowered the victims. During the robbery incident 2 sets of lace material, 2 sets of cupion material, a pair of kito slippers a pair of female shoe, a jacquard wrapper, one native agbada, 4 different types of Okenne material one lock set, 2 cassette players, one carpenter pipe range, 2 jeans trousers, one complete jarquard, one complete Ankara material one electric jug, 3 calculators, a bunch of keys, 4 traveling bags and money were all carted away by the robbers.
During the robbery operation, an alarm was raised. The villagers and members of the vigilante group were on the lookout for the robbers. The Appellant and Abubakar Mohammed were seen around the vicinity of the robbery with bags. They were arrested and on searching the bags PW1, PW2, PW4, PW5 and PW6 identified their properties as among the properties recovered from the Appellant and Abubakar Mohammed. A case of conspiracy to commit armed robbery and armed robbery was incidental against the 1st, 3rd accused and the Appellant. At the end of the trial, the 1st accused and the Appellant were convicted. Being dissatisfied with the judgment the Appellant has now appealed to this Court. The Appellant filed an Amended Notice of Appeal dated 6/10/06, filed same date, but deemed as properly filed and served on the 11/10/06. In addition the Appellant filed a 2nd Amended Notice of Appeal dated 20/5/09 filed on the same date, but deemed as properly filed and served on the 13/5/10. The 2nd Amended Notice of Appeal contains the following grounds:-
GROUNDS OF APPEAL
1. The learned trial judge erred in law when he held that the Appellant was guilty of armed robbery without evaluating the evidence adduced in favour of the appellant.
PATICULARS
(i) The Learned trial judge in delivering his judgment stated the evidence adduced for both sides but did not go further to evaluate the evidence.
(ii) The Learned Trial Judge in his judgment cited and relied on the evidence of the prosecution witnesses without considering the relevant evidence adduced in favour of the Appellant.
(iii) The learned trial judge failed to make findings on which he based his decision.
2. The Learned Trial Judge erred in Law when he failed to consider the defence or alibi and any other possible defence available to the Appellant.
PARTICULARS
(i) The evidence before the Trial Court was that the Appellant was not arrested at the scene of the alleged robbery incidents.
(ii) The Appellant denied any involvement with the robbery incidents.
(iii) The Appellant testified that he was not at the scene of the alleged robbery incidents and he was just coming from his sister’s house when he was arrested.
(iv) The Learned Trial judge failed to apply these facts to the defence of alibi.
3. The learned trial judge erred in law when he accepted the evidence of identity against the appellant
PARTICULARS
(i) The Appellant was charged for robbing certain individuals Alaba George, Nureni Adigun, Yinusa Balogun, Akeem Oyelami and Oyelami Abiola.
(ii) The Appellant was not arrested at the scenes of the alleged robbery incidents.
(iii) The Appellant was arrested near a certain bus stop together with some other passersby.
(iv) The police did not carry out a proper identification parade to ascertain the identity of the persons that were involved in the robbery incidents.
4. The learned trial judge erred in law when he wrongly relied on inadmissible evidence and failed to consider the law on retraction of confessional statements.
PARTICULARS
(i) The learned trial judge admitted similar fact evidence.
(ii) The learned trial judge did not expunge the similar fact evidence from the records.
(iii) There was evidence before the court that the confessional statement made by the appellant was induced.
The learned trial judge failed to consider the effect of the inducement on the statement which was admitted in evidence and relied on by the learned trial judge.
5. The learned trial judge erred in law when he found the Appellant guilty of armed robbery contrary to section 1(2)(a) of the Robbery and Fire arms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential amendments E.T.C. ) Act 1999.
PARTICULARS
(i) There was no proof or sufficient proof that the Appellant was armed with guns or any offensive weapon at the time of the alleged robbery.
(ii) There was no proof or sufficient proof that the Appellant was part of the persons who committed the alleged robbery.
(iii) There were various material contradictions in the evidenced adduced by prosecution which made the said evidence unreliable to ground a conviction of armed robbery.
6. The conduct of the trial of the Appellant was carried out in breach of the mandatory provisions of the criminal procedure Act and of the fundamental principles of fair hearing which occasioned a miscarriage of justice against the Appellant.
PARTICULARS
(i) The lower court failed to call upon each accused person to plead separately to the charge and did not call upon the Appellant to plead separately to each count contrary to section 215 of the criminal procedure Act.
(ii) The lower court did not enter a separate verdict in respect of each count charge against the Appellant
(iii)The judgment of the lower court failed to comply with the mandatory stipulations contained in section 245 of the Criminal Procedure Act.
(iv) The lower court prejudged the counts proffered against the Appellant and found the Appellant guilty without having considered the case presented judicially and judiciously.
(v) The failure of the lower court to consider and evaluate the evidence given by the prosecution and to consider and evaluate the defence of the Appellant amounted to a breach of the Appellants constitutional right to a fair hearing.
From the six grounds of Appeal, the Appellant in his brief of argument dated the 20/5/09 filed on the same date, but deemed as properly filed and served on the 13/5/10, distilled the following four (4) issues for determination viz.-
(1) Whether the learned trial judge rightly resolved the evidence of identity against the Appellant.
(2) Whether the Appellant was properly convicted of various counts of armed robbery contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 when there was no proof or sufficient proof of the elements of the offence in respect of each count.
(3) Whether in view of the contradictions in the evidence of the prosecution witnesses in respect of material facts, the Appellant ought to have been convicted of the offences charged.
(4) Whether the failure of the learned trial judge to evaluate the evidence before him and the entire conduct of the trial and did not amount to contravention of the criminal procedure Act and a gross breach of the principles of fair hearing and thereby result in a miscarriage of justice.
In addition the Appellant also filed a reply brief of argument dated 7/3/11 filed on the 8/3/11 and also deemed as properly filed and served on the 8/3/11.
The Respondent filed its brief of argument dated and filed the 22/11/10 but deemed as properly filed and served on the 23/11/10. It distilled the following two (2) issues for determination as follows: –
(a) Whether the learned trial judge rightly resolved the evidence of identity against the appellant.
(b) Whether the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery contrary to section 5 and 1(2) (a) of Robbery and Fire Arms (Special Provisions Act 1990 against the appellant.
For the purposes of this appeal, I tend to be guided by the issues as formulated by the appellant.
In arguing issue 1 which is to the effect of whether the learned trial judge rightly resolved the evidence of identity against the Appellant, learned counsel to the Appellant submitted that, identification must be properly ascertained in all instances, except where the accused is caught at the scene and in the process of committing or where the accused confesses to commit the crime. See: – Adisa V. State (1991) 1 NWLR (pt. 168) 490 at 506.
Learned counsel submitted further that the present case fall within the category whereby it has been held that the identification of the accused must be properly ascertained. The following are undisputed and are established on the particular facts of this case:
(i) The Appellant pleaded not guilty and further testified that he did not commit any act of robbery. He put up a defence of Alibi.
(ii) The Appellant was not caught at the scene of the crime.
(iii) The alleged confession of the Appellant was challenged as having not been voluntary.
Learned counsel further submitted that, on the process of securing proper identification of an accused person See: – Bozin V. State (1985) 2 NWLR (pt. 8) 467; Alabi V. State (1993) 7 NWLR (pt. 307) 511 at 524; Ikemson V. State (1989) 3 NWLR (pt. 110) 455. In the instant case an identification parade was required to ascertain the identity of the armed robbers in issue. In respect of the appellant no identification parade was conducted by the police after mob handed him to the police station. The failure to identify the Appellant as one of the robbers in issue occasioned a miscarriage of Justice.
Learned counsel further submitted that the evidence that was adduced as to identification was wholly unreliable. The trial judge accepted the said evidence in clear contravention of the basic guidelines for considering identification evidence. See: – Abudu V. The State (1985) 1 pt. 1) 55 at 62. Also the quality of the identification that is important and not the number of witnesses who are purportedly making the identification. See: – Chukwu V. The State (1996) 7 NWLR (pt. 473) 686 at 702. The main evidence relied upon by the trial judge was the identification evidence as presented by PW1 (Mrs. Alaba George). The judge held that the evidence of Alaba George was corroborated by all other witnesses.
Learned counsel submitted further that whether PW 1 was there at the point of arrest or not there is nothing on the record to show that the Appellant was seen recognized, identified and then apprehended. From the evidence of PW 1 and PW 7 there is nothing to indicate how the vigilante knew that the accused persons were the perpetrators of the alleged crime. There is no direct evidence from any of the witnesses to the effect that they recognized the accused persons as the persons who perpetrated the crime. See: – Ikemson V. State (1989) 2 NSCC (pt. 11) 471; Ojukwu V. State (2002) 4 NWLR (pt. 756) so at 88-89.
Learned counsel submitted that it is the law that where pieces of identification evidence are unsafe, the Appellate court should overturn a conviction based on same. See: – Dosunmu V. State (1986) 5 NWLR (pt. 43) 658 at 659.
Learned counsel to the Respondent in response to these submissions of the appellant, submitted that the identity of the appellant given the circumstances of this case is not the issue. The appellant and his accomplice were caught shortly around the scene of crime with some of the items stolen in their custody.
Learned counsel further submitted that in the instant case an identification parade was not necessary. It is not in evidence that there was no light at the time of robbery, more so, the appellant and his Co-accused person confessed to the crime and the admissibility of their confessional statements was not challenged at the trial of the case.
Learned counsel further submitted that, assuming without conceding that the quality of the identification made by the’ prosecution witnesses was poor, the fact that the properties stolen during the armed robbery operation was recovered from the appellant and his Co-accused is enough evidence to support the correctness of the identification.
Learned counsel further submitted that although no identification parade was conducted in this case, the learned trial judge did not rely on the identification evidence in convicting the appellant. The court below retied on the circumstances of the case. See page 70 lines 13-23 of the records.
Learned counsel submitted further that the identity of appellant in this case is not in issue and as such identification parade is not necessary.
The appellant took a further reply to issue NO. 1 in his reply brief dated 7/3/11 filed on the 8/3/11 and deemed as properly filed on the same 8/3/11, and submitted that the Respondent attempts to deal with the failure to hold an identification parade, that the Appellant was caught in possession of stolen property and by virtue of section 149 of the Evidence Act, the Accused must be presumed to have stolen the said goods. Accordingly the Respondent argues that there was no requirement for an identification parade to be held.
Learned counsel further submitted that it should be noted that the Respondent does not seriously challenge the points made in the Appellants brief as to the established principle of law that an identification parade must be carried out in all instance except where the accused is caught at the scene and in the process of committing the crime. The Respondent does not also challenge point made that the available identification Evidence was extremely unreliable.
Learned counsel further submitted that once the respondent is able to show that identification evidence was unreliable by virtue of being inconsistent without foundation and being given by persons who were not present when the Appellant was apprehended the case against the appellant fails.
Learned counsel further submitted that the doctrine of recent possession contained in section 149 (a) of the Evidence Act does not apply in the instant case. Firstly section 149 (a) Evidence Act only operates to create a presumption that the goods found in the possession of the accused person has been stolen, or received as stolen property. It certainly does not raised a presumption that the accused person is guilty of armed robbery, particularly as the elements of the offence of Armed Robbery are different and go far beyond the element of the offence of stealing or receiving stolen property. The crucial point here is that we are dealing with the identity of the armed robbers and not the identify of the person who witnesses or say were in possession of goods that had been stolen. See: – Okwonkwo and Naish on criminal law in Nigeria on this point at page 325; RV. Fallon (1973 Cr. APP. Reports at page 160.
Learned counsel further submitted that, the second point is that the presumption does not operate to shift the burden of proof from the prosecution or to impose a burden of proof on the accused person See: – Okwonkwo & Naish (supra at page 324.
Learned counsel further submitted that the prosecution must prove the accused guilty knowledge and the judge must consider the explanation offered by the accused. In this case this was not done. Indeed the submission being made by the Respondent (and indeed the judgment of the trial court reveals) that the presumption should be and has been summarily applied against the accused. This is contrary to the basic principles of fair hearing.
Learned counsel further submitted that section 149 can only raise an inference of stealing and cannot operate to make the Appellant guilty of Armed Robbery. In addition and in any event the doctrine of recent possession if applicable requires the judge before condemning the accused to consider the defence put forward by the accused. This does not occur in this case and the conviction of the accused on this basis should be set aside.
After a pains taken examination of the submissions on issue No.1 from both sides, this court is of the opinion that, the justice of this case will be better served, if the issue No. 4 of the Appellants brief is consider now and along side, as both issues 1 and 4 are intricately interwoven, and lean on either, to produce the much desired justice.
On issue No. 4, the failure to evaluate the evidence adduce by the prosecution learned counsel to the appellant submitted that a summary or re-statement of evidence is not the same as evaluation of evidence. See: – Ojekola V. Ajibade (2004) 17 NWLR (pt. 902) 356 at 379.
Learned counsel further submitted that in convicting the Appellant for conspiracy and armed robbery respectively, the learned trial judge merely accepted the evidence of the prosecution witness without evaluating same. He did not attempt to analyse the evidence of the prosecution witnesses either independently or side by side with the testimony of the Appellant or indeed any of the defence witnesses. Indeed the learned trial judge made no mention at all of the evidence adduced in favour of the Appellant. He did not give any reason for believing the said prosecution evidence. The court did not make any finding on the exhibits he admitted neither did he state to what extent he relied on the exhibits.
Learned counsel submitted further on the failure to consider the defence of the Appellant, that our criminal justice system is based inter alia on the pivot that all possibilities of the innocence of the accused person should be considered. The courts have established the principle that every defence that stems from the evidence adduced in court must be adequately considered.
Learned counsel further submitted that in the instant Appeal before this court, the thrust of the evidence presented in favour of the Appellant was that he was not one of the armed robbers that attacked PW1, PW2, PW 3, PW 5, and PW 7. He testified that he was coming from a naming ceremony when he was attacked beaten and taken to the police station, he was not arrested at the same time and place with the other two accused persons, he had never met the other accused person until he got to the police station, he was severely beaten at the police station and forced to sign a statement written by the police after the police had photographed him with some items (the purported recovered stolen items) which he knew nothing about.
Learned counsel submitted that the principle that an accused person should disclose his alibi at the first opportunity does not operate to deny an accused the right to remain silent. See: – Onyegbu V. State (1994) 1 NWLR (pt. 320) 328 at 344 paragraph C – D. Also the Appellants defence should have considered. See: – Ntita V. The State (1993) 3 NWLR (PT. 283) 505 at 514 paragraph G; Ajidahun V. State (1991) 9 NWLR (pt. 213) 33 at 43 paragraph 7; Agbuluwa V. Cop (1961) All NLR (pt. IV) 850; Esangbedo V. State (1989) 4 NWLR (pt. 113) 57 at 70-71. On the contrary in the instant case, the trial court did not consider the defence of alibi at all.
Led me pose here and consider the most vital defence proffered by the Appellant in this appeal, the defence of alibi. Before doing that however it should be noted that the Respondent did not join issues specifically with the Appellant on his defence of alibi, save its arguments in relation to identification parade canvassed under issue No. 1 of both the appellant and respondents briefs of argument. What then is alibi? The Supreme Court in the case of Emmanuel Eke V. The State (2011) 3 NWLR (pt. 1235) 589 at 606 paragraph 3 stated:
“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 accuse to furnish the particulars of alibi to the police at the earliest opportunity. He must furnish his where about and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal. See: – Yanor V. The State (1965) NMLR 337;
Queen V. Turner (1957) WRNLR 34; Bello V. I.G.P. (1956) SCNLR 113; Gachi V. The State 1965 NMLR 333; Odu & Anor V. The State (2001) 5 SCNJ 115 at 120 (2001) 10 NWLR (pt. 722) 668. The appellant defence of alibi at the time of investigation cannot be taken seriously, making the plea in his evidence at the trial a ploy which equates to an afterthought; it was to no avail in the circumstances”.
From the decision of the apex court cited above, it is very clear that there is a corresponding duty on both the Appellant (accused) and the prosecution when the defence of alibi is raised. There is the duty on the accused/appellant once he raises the defence of alibi to furnish the particulars of alibi to the police at the earliest opportunity. The particulars will include his where about and those present with him. The corresponding duty on the part of the police is, once the particulars are made available, it must investigate to disprove same; failure to investigate will lead to acquittal.
In the present case and from the records, the appellant/accused raised the defence of alibi to the police after his arrest. He testified that he was coming from a naming ceremony when he was attacked beaten and taken to the police station. The records went only to the extent that appellant/accused mentioned the naming ceremony from his sister’s place and it stopped there. The particulars required by law from the authority of Eke V. State (supra) is insufficient to trigger the police to any action.
What the Supreme Court in the above case said is that, it is not only his where about, he must state those present with him. It thus, very clear that, where the appellant/accused failed to give sufficient particulars, the defence of alibi cannot avail him.
The appellant himself admitted this principle of law in his brief of argument at paragraph 18.3 wherein he stated:
“We submit further that the principle that an accused person should disclose his alibi at the first opportunity does not operate to deny an accused the right to remain silent. See: – Oyegbu V. State (1994) 1 NWLR (pt.320) 328 at 344 paragraphs C-D.
I must quickly mention that the case of Oyegbu V. State (supra) cited by the learned counsel to the appellant in his brief of argument is in applicable to the instant case. In the case at hand, it is not the case of the appellant remaining silent at the police station, and raising the defence of alibi for the first time at the trial court. The appellant from the records raised the defence of alibi at the police station, but the record before this court has not shown that he provided sufficient particulars to activate the corresponding duty on the part of the police to commence investigation on his alibi. The failure on the part of the appellant/accused to provide the sufficient particulars to the police on the defence of alibi raised by him denied him the opportunity to avail himself of its benefit. Let me state for the records that it is a 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 to the prosecution. See: – Ochemaie V. The State (2008) 6-7 5.C. (pt. 11) 1; Udoebre V. The State (2001) 6 SCNJ 54; Obakpolor V. The State (1991) 1 SCNJ 91 at 106-107. Finally therefore, on this point of defence of alibi, in issue No. 4 of the appellant’s brief of argument, the appeal fails, and the point is resolved in favour of the Respondent.
At this stage it is necessary to juxtapose the decision of this court on alibi, to issue No. 1 of the appellant’s brief of argument on the need for proper identification of accused/appellant. The appellant maintained that relying on the Supreme Court’s decision of Bozin V. State (supra) it is an undisputed fact that identification parade was necessary after the arrest of the appellant by the police, which they later failed to conduct. It is further argued that in the instant appeal, the following reasons made the issue of identification parade quite imperative.
(a) The Appellant was not arrested at the scene of the crimes.
(b) None of the victims of the armed robberies knew the Appellant before the crime.
(c) The victims all had fleeting encounters with the robbers that came to their individual homes.
The Respondent replied that given the circumstances of this case, an identification parade in not the issue. The appellant and his accomplice were caught shortly around the scene of crime with some items stolen from the robbery in their custody.
What then is the object of identification parade? The law is already settled that the object of identification parade is to test the ability of a witness to pick out from a group the person, if he is present, who the witness has said that he has seen previously on a specified occasion. Identification parade should be fair and should be seen to be fair, every precaution should be taken to see that they are so, and in particular to exclude any suspicion of unfairness or risk of erroneous identification through the witness, attention being directed specifically to the suspected person instead of equally to all person paraded. See: – Bozin V. State (1983) 2 NWLR (pt. 8) 465 at 471 paragraphs D-E; Ogala v. State (1991) 2 NWLR (pt. 175) 509 at Balogun V. A.G. Ogun State (2002) 4 M.J.S.C. 45 at 58.
This court earlier on in the judgment decided that the defence of alibi raised by the appellant could not avail him as there was a short supply of particulars from him to activite investigation by police. Since the defence of alibi is not available in favour of the appellant the only evidence incriminating the accused/appellant, is the one provided by the police after that arrest of the appellant, that he and his accomplice were caught shortly around the scene of crime with some items stolen from the robbery, which the carious victims of the robbery identified them as their properties snatched away from them during the commission of the crime. If the object of identification is to test the ability of a witness to pick out from a group the person, given the circumstance of this case, this court agrees with the submission of the respondent on issue No. 1 that identification parade was not necessary, or a prerequisite to the investigation of the allegation against the appellant. This court has resolved issue No. 1 against the appellant and in favour of the respondent.
Turning back again to issue No. 4 of the appellant’s brief of argument, this court only dealt with the point of alibi which the court resolved against the appellant. The other aspect of issue No. 4 which the court left to decide now is the argument of the failure to evaluate the evidence adduce by the prosecution from the trial court. The contention of the appellant is that the learned trial judge in his judgment merely accepted the evidence of the prosecution witness without evaluating same. He did not attempt to analyse the evidence of the prosecution witnesses either independently or side by side with the testimony of the Appellant or indeed any of the defence witnesses. This court has gone carefully through the records, and it is satisfied that the trial court in the course of its judgments made reasons for its belief on the evidence of the prosecution presented to it. The Supreme Court in the case of Eze Ibeh V. The State (1997) 1 SCNJ 256 at 277 stated: –
“On evaluation of evidence. I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed adage, long judicial policy in this country that the evaluation of evidence called at trial court, the ascription of probative value to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or pre-eminently placed of hearing the witnesses testify and watching their demeanours. See: – Balogun & Ors. V. Alimi Agboola (1974) 1 All NLR (pt 266; The Military Governor of Western State V. Afolabi Lanibe & anon (1974) 1 All NLR (pt 2) 179. For this reason there is a presumption that a trial judge’s decision on facts is correct a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See: – Ajao V. Ajao (1986) 5 NWLR (pt. 45) 802; and Kponugio V. Adja Kodaja (1933) 2 WACA 24Let me add here that I am not aware of any rule of law which says that the court should pronounce on every and any piece of paper tendered before it even where such document has no probative value. This court is satisfied with the evaluation of evidence done by the trial court in its judgment, and shall not interfere with it. On this therefore, issue No. 4 is resolved against the appellant and in favour of the respondent.
On issue No. 2 whether the Appellant was properly convicted of various counts of armed robbery contrary to section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act 1990 when there was no proof or sufficient proof of the elements of the offence in respect of each count. Learned counsel to the appellant submitted that the elements of the offence charged under section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act states as follows: –
1. Any person who commits the offence of robbery shall upon trial and conviction under this act, be sentenced to imprisonment for not less than 21 years.
2. If
(a) Any offender mentioned I subsection (1) of this section is armed with any fire arms of offensive weapon or is in company with any person so armed; the offender shall be liable upon conviction under this act to be sentenced to death.
Learned counsel further submitted that in order to prove the elements of the offence under section 1(2)(a) there must be proof of (i) Robbery; and
(ii) That the accused persons carried out the robbery armed with fire arms or offensive weapons. See: – Oyakhere V. State (2005) 15 NWLR (pt. 947) 159 at 179; Nwachukwu V. State (1985) 3 NWLR (Pt.5) 218.
Learned counsel further submitted that both the fact that the Appellant was involved in any Robbery and the fact that the robbery was carried out using arms or offensive weapons contrary to section 1(2) (a) was not proved in relation to counts 3, 4 and 5 of the charge. This is revealed from a short review of the evidence led by each witness that was presented to prove the three counts. Count 3 said to be proved by PW2, count 4 by PW 4 count 5 by PW 5.
The prosecution failed to prove this count against the Appellant (2nd accused) since there was no evidence linking the Appellant with the said crime, we pray that this court should overturn the conviction of the Appellant by the trial judge on the said counts.
On his response learned counsel to the respondent submitted that for the prosecution to succeed in the proof of the offence of the armed robbery against the appellant the following must be established beyond reasonable doubt: –
(a) There was a robbery or series of robberies.
(b) The robbery was an armed robbery.
(c) The accused was one of those who took part in the armed robbery. See: – Alabi V. The State (1993) 7 NWLR (pt. 307) 5.
Learned counsel further submitted that it is clear from the trial of this case that the prosecution established the fact that there was a robbery or series of robbery on 15/2/1999 at No. 24 Ajana Street, Ijoko Ota and No.1 Oladosu Adigun Street, Isorosi Ota Ogun State. The evidence adduced at the trial of the appellant revealed that the appellant and other people were armed during the commission of the offence. See: – evidence of PW 1 on page 14 lines 2 to 3 where she identified the appellant and his Co-accused as among the armed robbers. Also the evidence of PW 4, PW6, and PW 7.
Learned counsel submitted further that even if the offensive weapons used in the commission of the offence were not tendered in evidence, it is not in all cases that the instruments used in committing an offence must be produce or tendered in court in order to convict an accused person. It is trite law that it not a legal requirement for the prosecution to tender the weapon used in committing an offence. See: – Gbadamosi V. The State (1991) 5 NWLR (Pt. 196) 182.
Learned counsel further submitted if the accused persons were not the armed robbers then how did they come about the items recovered from them. The accused had an ample time to dispose of their weapons before they were arrested. The court is entitled to apply the doctrine of recent possession under section 149 (a) of the Evidence Act.
Learned counsel further submitted that on the issue of conspiracy, the conspiracy is defined an agreement by two or more persons to commit an unlawful act, a combination for unlawful purpose’ See: – Black’s Law Dictionary 7th edition page 305.
Learned counsel further submitted that on proof of conspiracy, it is sometimes open to the court to infera conspiracy. A conspiracy is a separate offence from the crime that is the object of the conspiracy. See: – Black’s Law Dictionary (supra).
Learned counsel submitted further that though it is the law that the burden of proof on the prosecution is proof beyond reasonable doubt. The proof however is not beyond any shadow of doubt and that once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadow of doubt. See: – Dibie V. The State (2007) 7 SCM page 101 at 105.
The appellant replied on these submissions in his reply brief dated 7/3/11 and submitted that the accused persons were charged with 5 separate counts of Armed Robbery counts 2-6. In respect of each count, the prosecution must prove the identity of the robbers and also that the accused person carried out the robbery armed with fire arms or offensive weapons.
Learned counsel further submitted that these elements of the offence were not proved in relation to counts 3, 4, and 5 of the charge, because the witness did not identify the accused person and also did not allege that armed or offensive weapons were used in relation to specific count.
Learned counsel further submitted that the Respondent has failed to respond pointedly to our submissions. Instead the Respondent simply alleges that “generally” the robberies were committed using arms. However, that it is not sufficient. At the trial each count of the charge was proved by only one witness and where that witness fails to prove the elements of the offence, the accused person must be discharged on that count.
On the part of the court the essential ingredients of the offence of armed robbery each of which the respondent is by law enjoined to prove beyond reasonable doubt are:
(a) There was robbery or series of robberies
(b) The robbery was an armed robbery
(c) The accused person took part in the robbery. See:-Oyebola V. State (2008) All FWLR (Pt. 402) 1175 Bozin V. State 1985 2 NWLR (Pt. 8) 465 refered. In the instant case before the court, this court earlier resolved issues No. 1 and issue No.4 against the Appellant. Very prominent is the issue No.4 where this court resolved that the defence of alibi cannot avail the Appellant. The crucial point linking the Appellant with this offence is the arrest of him according to the prosecution not too long after the commission of the offence, not too far away from the scene of crime, and found with his accomplice in possession of the items later identified by the victims and also the prosecution witnesses as part of their properties snatched away during the commission of the crime.
The Law is already settled on how the guilt of an accused person can be established by:-
(a) Evidence of an eye witness
(b) Circumstantial evidence and
(c) Confessional statement.
In the instant case the evidence adduced by the Respondent through the witnesses PW1, who identified 1st and 2nd accused/appellant as two of the nine armed robbers who attacked her and later arrested by vigilante. She gave evidence of the items stolen from her recovered from 1st accused. PW1, PW4, PW6, PW7 all identified various items stolen from them recovery in possession of the 1st and 2nd accused/appellant, this in the opinion of this court is sufficient to establish a case of armed robbery.
Also from the record the evidence of these witnesses was not successfully challenged under cross-examination. There was nothing before the court to render the evidence of these witnesses futile before the court. The appellant placed very heavy reliance on his alibi which he maintained was not given any attention at the trial court. This court earlier resolved alibi as a defence could not avail the appellant.
In proving the offence of armed robbery it is not required of the prosecution when it based its case of armed robbery on possession of fire arms by an accused person to produce evidence of the use of the fire arms by its having been fired at the time of the commission of the robbery. It is sufficient if the prosecution establishes that the accused person was armed with a fire arm or was in company of any person so armed at the time of the commission of the offence. There is no principle of law requiring the prosecution to tender in evidence the weapon used in a robbery in order to established the guilt of an accused person. In the instant case having been arrested not too far from the scene of crime at No.24 Ajana Street Ijoko Ota and No.1 Oladosu Adigun Street Isorosi Ota, in possession of the list of items identified by prosecution witness as items snatched away from them, I do agree with the respondent that the accused had interval to disposes of the offensive weapons. Thus, the respondent can hardly be expected to tender what was never recovered. See: – Olayinka V. State (2007) 9 NWLR (pt. 1040) 561. I am satisfied that the offence of armed robbery has been established against the appellant by the prosecution at the lower court.
Another aspect is that of doctrine of recent possession. From the evidence before this court the Appellant and another were arrested in possession of some items which were later identified to be part of those robbed from the 1st, 2nd, 3rd, 4th and 6th prosecution witnesses. Section 148 (a) of the Evidence Act.
“A presumption of fact is the logical inference of the existence of other facts from the proved existence of other facts”.
The provision of the section applies and the presumption can be drawn where: –
(1) The accused was found in possession of some goods
(2) The goods were stolen
(3) The possession was soon after the theft
(4) There is a failure to account for the possession.
In the instant case the alibi of the Appellant earlier on had failed in this judgment. The Appellant has not provided any evidence in rebuttal of the accusation of recent possession made by the Respondent’s against quite apart from his alibi. The opening word of section 148 of the Evidence Act reads “The court may presume the existence of any fact which it thinks likely to have happened …” and the phrase in paragraph “(a)” … unless he can account for his possession” are instructive.
In the present case items were found in possession of the Appellant and this was proved beyond reasonable doubt as they were produced as Exhibits in court. See: – R.V. Obiase (1938) 4 WACA 16; Salami V. The State (1988) 3 NWLR (pt. 85) 670; Eze V. State (1985) 3 NWLR (pt. 13) 438; Madagira V. The State (1988) 5 NWLR (pt. 92) 60.
The Appellant was from the evidence arrested soon after the robbery and the proximity were closed to the scene of the robbery which is the other essential ingredients proved against the Appellant. See: R. V. Kwashie (1950) 13 WACA 86 only 90 minutes, R. V. Sunday Jumbo (1960) L.L.R. 192 a few hours, R. V. Opara (1961) All NLR 127. This imports the English law doctrine of recent possession. There have been several cases in our courts prescribing the period within which the possession of stolen goods by the accused has been used to presume the possessor as the thief. See: – Nwachukwu V. State (1985) 3 NWLR (pt.11) 218. I therefore resolved issue No.2 against the appellant, and in favour of the respondent.
The court having resolved issues 1, 2, and 4 against the appellant, issue No.3 becomes a mere academic exercise.
In the final analysis, the conviction has done by Ogundepo J, of the High Court of justice Ogun State, Ota Judicial Division in suit No. HCT/16R/2000, delivered on the 16th of August, 2004 is hereby affirmed. However, the sentence of the appellant (2nd accused) under section 1 (2) (a) of the Robbery and Fire arms (special provisions) Act 1990 as amended by the tribunal consequential amendments E.T.C) Act 1999 to death is substituted by this court to sentence under Section 1 (1) Act to a term of imprisonment for life.
MODUPE FASANMI, J.C.A: I have read before now the lead judgment of my learned brother S. D. Bage, J.C.A.
I agree with his reasoning and conclusion reached. I also affirm the decision of the High Court of Justice, Ogun State, Ota Judicial Division in suit no. HCT/16R/2000 delivered on the 16th of August, 2004. I abide by the consequential orders contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the exhaustive judgment prepared by my learned brother, Bage, J.C.A, which I had the honour of reading before now. The doctrine of recent possession under section 149(a) (former section 148(a) of the Evidence Act was properly invoked by the court below to convict the appellant of the offences charged, as appellant was caught with the robbed items some hours after the robbery incident on the same day.
The case of Madagwa v. The State (1988) 5 NWLR (Pt.92) 50 at 84 – 85, for instance, illustrates the application of the doctrine of recent possession under section 149(a) of the Evidence Act in these words:
“The proximity of the time of possession to the theft seems to be an essential requirement of the presumption whether the accused is the thief; or received them with knowledge that they are stolen goods – See R. v. Kwashie (1950) 13 WACA. 86 only 90 minutes R. v. Sunday Jumbo (1960) LLR. 192 a few hours R. v. Opara (1951) WNLR 127. This imports the English law doctrine of recent possession. There have been several cases in our courts prescribing the period within which the possession of stolen goods by the accused has been used to presume the possessor as the thief. In Nwachukwu v. State (1985) 3 NWLR (Part.11) 218, appellant after presenting a toy gun to his victim, snatched the bag of money carried by his victim and ran away. He was chased into a house and with the assistance of the Police, arrested hiding under the bed and lying on the bag of money. It was held that section 148(a) of the Evidence Act applied since the accused was found lying on the bag containing the money subjected matter of the robbery, so soon after the robbery. The presumption that accused was one of the robbers was one which on the facts ought to be drawn and was drawn.
In Eze v. State (1985) 3 NWLR (Pt.13) 429, appellant and another robbed the victim of his Suzuki Motor Cycle at about 6 a.m. They were spotted at about 5p.m. the same day at a Beer Parlour where they had taken the Motor Cycle. When the son of the victim and a Policeman identified the Motor cycle at the Beer Parlour, one of the two men who robbed the Motor Cycle at gun point escaped. The other was arrested. In his breast pocket was found the ignition key of the Motor cycle. He said he did not know how the key got into his pocket. He was on the facts held to be one of the armed robbers.
In Salami v. The State (1988) 3 NWLR. (Pt.85) 671, appellants robbed at gun point the victim of his Datsun 120Y Panel Van with registration No. LA 5501 E at about 2p.m. on 15/9/81. At about 8p.m. that is within six hours on the same day along Ijebu-Ode – Ibadan Road, the appellant was seen driving the car, the registration number already changed to read OG 803 B. Appellant was, arrested and handed over to the Police. The trial Court presumed Appellant was the thief. His appeal to the Court of Appeal and to this court was dismissed.”
The appeal accordingly lacks merit. I would dismiss it and abide by the consequential orders embodied in the judgment of my learned brother, Bage, J.C.A.
Appearances
Olayode Delano Esq.
Bukola WilliamsFor Appellant
AND
Akin Osinbajo A.G. Ogun State
O.T. Olaitan D.L. Dev.
I.N. AkinfegbeFor Respondent
