LATEEF SADIKU VS THE STATE (2013)

LATEEF SADIKU VS THE STATE

(2013) LCN/4138(SC)

In the Supreme Court of Nigeria

Thursday, May 16, 2013


Case Number: SC. 433/2011

 

JUSTICES:

MAHMUD MOHAMMED, JUSTICE SUPREME  COURT

JOHN AFOLABI FABIYI, JUSTICE SUPREME  COURT

BODE RHODES – VIVOUR, JUSTICE SUPREME  COURT

MARY UKAEGO PETER – ODILI, JUSTICE SUPREME  COURT

KUMAI BAYANG AKA’AHS,JUSTICE SUPREME  COURT

 

APPELLANT:

LATEEF SADIKU

 

RESPONDENT:

THE STATE

 

RATIO:

KUMAI BA YANG AKA ‘AHS, JSC (Delivering the Judgment of the Court): This is an appeal against the judgement of the Court of Appeal, Ibadan Division (hereinafter referred to as the court below) delivered on 12th April 2011 which upheld the decision of the trial court for Armed Robbery.

The appellant and two others namely Abubakar Mohammed and Idowu Shittu were arraigned before the Ogun State High Court, Ota Judicial Division on a six count charge of Conspiracy to Commit Armed Robbery and Armed Robbery contrary to sections 5(b) and l(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments .etc) Act, 1999. The; appellant pleaded not guilty to the charge. The prosecution called 7 (seven ) witnesses to prove its case and each of the accused persons testified in his defence. At the end of the trial the 1st accused and the appellant (who was the 2nd accused) were convicted and sentenced to death while the 3rd accused was discharged and acquitted. In the Notice of Appeal dated 30th August, 2004 but filed on 3rd September, 2004 the appellant appealed against the judgement of the trial court. He amended the Notice of Appeal twice on 6th October. 2006 and 20th May, 2009. In the judgement of the lower court delivered on 12th April, 201L the conviction of the appellant under section l(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments etc) Act 1999 for which he was sentenced to death was substituted with imprisonment for life under section l(i). The appellant was dissatisfied and has further appealed to this Court on 9 grounds of appeal. The appellant formulated six issues for determination which read as follows:

  1. Whether the trial; court has jurisdiction to try the appellant on an information filed by the Attorney – General of Ogun State in respect of an offence under an Act of the National Assembly being an offence exclusively preserved for the Attorney – General of the Federation under section 174 of the Constitution of the Federal Republic of Nigeria (as amended) (Ground 1 of the Notice of Appeal)
  2. Whether the information upon which the appellant was tried was not incompetent in view of the failure of the prosecution to file same within the mandatory time frame of 21 days stipulated by sections 9 (3) and 12 (5 J of the Armed Robbery and Firearms Act (Ground 2 of the Notice of Appeal)

3.Whether the irregularities in the taking of the plea of the appellant at his arraignment were not of such fundamental nature as to deny the appellant fair trial and thus render the whole proceedings a nullity. (Ground 3 of the Notice of Appeal)

4.Whether the court below was right in agreeing with the trial court in the circumstances of the case, an identification parade was not necessary, given the fact that the appellant was neither arrested at the scene of crime nor did any of the prosecution witnesses know him before the commission of the crime (Ground 4 of the Notice of Appeal)

5.Whether the court below was right in holding that the appellant did not provide sufficient particulars to have availed himself of the defence of alibi (Grounds 5 and 8 of the Notice of Appeal)

6.Whether given the surrounding circumstances of this case, the court below was right in relying on the doctrine of recent possession in affirming the conviction of the appellant for the offence of Armed Robbery (Grounds 6. 7 and 9 of the Notice of Appeal).

The respondent adopted the issues formulated by the appellant in the appeal.

If issues 1,2 and 3 are resolved in favour of the appellant this will result in the nullification of the trial. I therefore intend to take the three issues together and also issues 4 and 5 while issue 6 will be treated separately.

On the first issue learned counsel for the appellant submitted that section 174 of the 1999 Constitution confers the powers on the Attorney – General of the Federation to prosecute offences under any Act of the National Assembly such as the Robber)’ and Firearms (Special Provisions) Act. He argued that section 9 of the said Act which purports to confer powers on the Attorney -General of the State to prosecute offences under the Act cannot confer such powers that are not allowed by the Constitution since section 174 is not made subject to any other law in force. He contended that sections 9(2) and (3) and 12 of the Robber)1 and Firearms Act are inconsistent with section 174 of the 1999 Constitution and urged that the}’ be declared invalid to the extent of the inconsistency. He reproduced sections 9(3) and 12(5) of the Act and argued that the respondent did not comply with the time frame of 21 days from the appellant’s arrest to file information against him and so lost the prosecutorial powers to file the charges and prosecute the appellant. He submitted that the entire information and trial were a nullity and the trial court did not have the jurisdiction to try the appellant because the investigation was not concluded within 7 days of his arrest: neither was information filed within 7 days of the case file from the Police in accordance with section 9(3) of the Act. He maintained that the trial court’s arraignment of the appellant in the proceeding of 15th May 2002 in which the 6 count charge was read to the appellant together, and he was asked to plead to all the counts at once was not in compliance with the rule set out in Kajubo vs The State (1988) 1 NWLR (Part 73) 21. He further argued that the community pleading ltd to a miscarriage of justice because the appellant could not comprehend the entire 6 count charge as he could not understand what allegations he was facing in the information.

Section 174 of the 1999 Constitution (as amended) empowers the Attorney – General of the Federation to institute and undertake criminal proceedings against any person before any court of law in Nigeria. The section provides as follows:-

“174- (1) The Attorney – General of the Federation shall have power -(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court – martial, in respect of any offence created by or under any act of the National Assembly”‘.

Section 211 of the 1999 Constitution (as amended) contains the same provision for the Attorney – General of the State in relation to laws passed by the State House of Assembly and it says:-

“211 – (1) The Attorney – General of a State shall have power –

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;”

The contention by the appellant is that sections 174 and 211 have clearly defined the powers of the Attorney – General of the Federation and that of the State respectively and the enactment under which the appellant and the co – accused were charged is a federal enactment or an Act of the National Assembly: consequently the Robbery and Firearms (Special Provisions) Act does not fall within the purview of the powers conferred on a State Attorney – General to purport to file information for the purpose of prosecuting an offender against the Act and section 9(2) of the Robber) and Firearms (Special Provisions) Act which allows the State Attorney – General to prosecute for offences under the Act is inconsistent with the Constitution which is the grundnorm and by virtue of section 9(3) of the said Constitution, it should be declared null and void.

The Robbery and Firearms (Special Provisions) Act, 1990 gives power to the State Attorney – General to institute proceedings in respect of the offences created by the Act. Section 9(2) of the Act specifically provides as follows:

“9(2) Prosecution of 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 authorise so to do”.

Learned counsel for the appellant is aware of this provision; hence the argument that it is inconsistent with Section 174 of the Constitution and the call that the said section together with Section 12 of the same Act be declared a nullity.

The constitutionality of the trial of offences under the Robbery and Firearms (Special Provisions) Act being undertaken by a State Attorney -General was settled in Emelosu vs State (1988) 2 NWLR (Part 78) 524 (1988) 1 NSCC Vol. 19 page 869 where, a full court was empanelled by the Chief Justice of Nigeria, and the Attorney – General of the Federation was invited to make submissions on the constitutional point. In that case the appellant was charged with, tried and convicted of the offence of armed robbery in the Imo State High Court contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and was sentenced to death. The appellant appealed to the Court of Appeal, and contended that the offences created under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 were Federal Offences and that the Attorney – General of Imo State lacked the required competence to institute and prosecute such offences without the express authority of the Federal Attorney – General. The appellant also challenged the applicability of the rules of procedure applicable in Imo State in Criminal cases to the offences created under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. The appeal was dismissed. On a further appeal to the Supreme Court it was held –

  1. That by virtue of the provisions of Section 274(4)(b) of the 1979 Constitution, the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 became an existing law of the State and “Robbery” per se is a residual matter, while the Act as amended was deemed to have been made by the State House of Assembly and in view of this offences under the Robber}’ and Firearms (Special Provisions) Act No. 47 of 1970 (as amended) are not federal but state offences.
  2. That by virtue of Section 191 of the 3 979 Constitution, the power to institute the prosecution of criminal cases is vested in the State Attorney – General and because the Robber)’ and Firearms (Special Provisions) Act No. 47 of 1970 operated as a State Law in so far as Armed Robbery is concerned, the State Attorney – General for Imo State had the locus standi as at the 14th day of May, 1982 and the question of delegation of authority does not arise.

The facts and issues contained in Emelogu’s case supra apply mutatis mutandis to the present appeal.

Learned counsel for the appellant appears to be ignorant of the decision in Emelogu’s case because he did not refer to it in his brief of argument: neither did he call for a review of the said decision. By virtue of Section 315 of the 1999 Constitution as amended. Robber)’ and Firearms (Special Provisions) Act, 1990 became an existing law of Ogun State and is deemed to have been made by the State House of Assembly and since it is deemed to be an existing law, it has effect with such modifications as may be necessary to bring it into conformity with the provisions of the 1999 Constitution. See: Section 315(1) of 1999 Constitution.

Learned counsel for the appellant is seeking to nullify the conviction of the appellant on the ground that the information upon which the appellant was tried was incompetent in view of the failure of the prosecution to file same within the mandatory time frame of 7 days stipulated m Sections 9(3) and 12(5) of the Robber}’ and Firearms (Special Provisions) Act 1990. Secondly that there was irregularity in the taking of the appellant’s plea.

It is provided in Sections 9(3) and 12(5) of the Robber}’ and Firearms (Special Provisions) Act 1990 as follows:-

“9(3) Prosecutions in respect of any person caught committing an offence under section 1(2) 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 the completed police investigation in respect of the offence.

12(5) Police investigation into cases relating to any person caught committing an offence under section 1(2) of this Act 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 investigation “.

These provisions were deleted by the Tribunals (Certain Consequential Amendment etc) Decree No. 62 of 1999 Constitution. Section 1 states:-

“1. The enactments specified in the first column of Parts 1 & II of the schedule to this Decree are amended to the extent set out in the second column of those Parts of that schedule”.

The sections which were deleted are sections 9, 10. 11, 12 and 14 of the Act. These sections were deleted before the appellant was arraigned and so he cannot claim any benefit from the repealed sections of the Act which in the eyes of the law never existed. In the proceedings of 15th Ma)’, 2002 when the 6 count charge was read and explained to the appellant he pleaded not guilty. Section 215 of the Criminal Procedure Law of Ogun State provides that –

“215 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, and the charge or information shall be read over and explained to him to the satisfaction of the Couit 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 therewith “.

The charge was read and explained to the appellant. He pleaded not guilty I cannot fathom how it can be argued that the appellant who pleaded not guilty to the charge will complain of lack of fair hearing. The appellant was represented by learned counsel who could have taken objection to any unorthodox handling of the case by the prosecution. This complaint is without

a basis and it is discountenanced. Issues 1, 2 and 3 are resolved against the appellant.

ISSUES 4 & 5

These issues deal with identification and alibi Learned counsel for the appellant submitted that the court below was in error when it agreed with the trial court that identification parade was not necessary, or a prerequisite to the investigation against the appellant. He argued that the appellant was never arrested at the scene of crime nor did any of the witnesses who testified against him state that they knew him before the commission of the crime. He submitted that identification of an accused must be properly ascertained in all instances except where the accused is caught at the scene and in the process of committing the offence or where the accused confesses to committing the crime.

Learned counsel submitted on the plea of alibi that the Justices of the court below came to a wrong conclusion when they held that the appellant had failed to discharge his duty of providing sufficient material on his defence of alibi when he stated that he was coming from a naming ceremony from his sister’s place when he was attacked and beaten up and then taken to the police station. He said this fact was made known to the Police at the earliest possible time and it was left for the Police to find out if there was a naming ceremony which the appellant claimed he attended and whether he was with his sister.

An identification parade is useful and indeed essential whenever there is a doubt about the power of a witness to recognise an accused person or when the identity of the accused person is in dispute. It is not necessary where the witness knew or was familiar with the accused or suspect well before the alleged crime was committed. In Orok vs The State (2009) 13 NWLR (Part 1052) 633 the Court of Appeal enumerated the circumstances under which an

identification parade is necessary. They are:-

“(1) The accused was not arrested at the scene and he denies taking part in the crime; or

(2) The victim did not know the accused before the offence; or

(3) The victim was confronted by the accused for a very short time; and/or

(4)The victim due to time and circumstances must not have had full opportunity of observing the feature of the accused”.

The appellant confessed to the commission of the crime and not only that he was arrested shortly after the commission of the offence and the stolen goods were found with him. It was therefore unnecessary” to conduct an identification parade and also investigate the alibi set up by the appellant. The trial court properly invoked the doctrine of recent possession to fix the appellant with the commission of the offence. The appellant had an explanation to give as to how he came into possession of the stolen items so soon after the robber)- was committed. The lower court was right to conclude that –

“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 1 that identification parade was not necessary, or a prerequisite to the investigation of the allegation against the appellant”.

The plea of alibi though timeously raised was rightly rejected because the appellant was found in the vicinity of the crime shortly after the robbery and not only that he was found in possession of the stolen items.

Having been found in possession of the stolen goods, the learned trial Judge was right to invoke section 167(a) Evidence Act to presume that the appellant was either the robber or knew that the goods were stolen when he came into possession. The section stipulates as follows:

“167 The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case and in particular the Court may presume

(a)that a man who is in possession of stolen goods after the theft is the thief or has received the goods knowing them to be stolen, unless he can account for his possession”

The prosecution proved its case beyond reasonable doubt to warrant the conviction of the appellant. His conviction was rightly affirmed by the lower court.

All the issues raised in the appeal are resolved against the appellant I find that there is no merit in the appeal and it is accordingly dismissed. The substituted sentence of life imprisonment imposed by the lower court on the appellant in place of the death sentence pronounced by the trial Judge is also affirmed. Appeal is dismissed.

 

MAHMUD MOHAMMED, JSC:

The Appellant was accused of being among the group of armed robbers who carried out operation and conspired and robbed several victims of their money and valuable properties on 15th February, 1999. The Appellant and two others were charged under Section 5(b) and l(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 and pleaded not guilty to the charges. The evidence shows that the Appellant and others were armed with guns and a knife at the time of the robbery. The prosecution called witnesses most of whom were the victims of the robbery. The Appellant and his co-accused person testified in their defence but called no evidence. The Appellant and his co-accused persons were not only Identified as participants in the robbery but also that some of the properties stolen in the act of the robbery, were immediately recovered from the Appellant and his co-accused persons. The Appellant and one of his co-accused person were found guilty as charged and were sentenced to death in accordance with the law while the 3rd accused was found not guilty and was discharged and acquitted. That was the judgment of the trial Court on 16th August, 2004.

On appeal, the conviction of the Appellant under Section l(2)(a) of the Robbery Act was set aside and substituted with conviction under Section 1(1) of the Act for which he was sentenced to life imprisonment in place of death sentence. The Appellant is now on a further appeal to Supreme Court.

All the 6 Issues arising for determination in this appeal have been carefully dealt with in the lead judgment of my learned brother Aka’ahs JSC which I have had the opportunity of reading before today and with which I entirely agree, I also find no merit in the appeal which is hereby dismissed. The conviction and reduced sentence of life imprisonment passed on the Appellant by the Court below is hereby further affirmed.

 

JOHN AFOLABI FABIYI. JSC:

I have had a preview of the judgment just delivered by learned brother – Aka’ahs, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal is devoid of merit and should be dismissed.

The appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on 12th April, 2011. The appellant was tried along with two others for the offences of conspiracy and armed robbery. The trial court applied the law to the evidence garnered by him to convict the appellant and sentenced him to death. The appeal to the Court of Appeal was dismissed. The court below however substituted a sentence of life imprisonment in place of the death sentence pronounced by the trial Judge.

There is the issue touching on the identification of the appellant tacitly raised by his counsel who submitted that only a properly identified accused person can be convicted for an offence, as herein. He referred to the cases of Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 and Adisa v. The State (1991) 1 NWLR (Pt. 168) 490 at 509.

It must be stressed that identification parade is useful and essential whenever there is a doubt about the power of a witness to recognize the accused person or when the identity of the accused person is in dispute. See: Omopupa v. The State (2008) All FWLR (Pt. 445) 1648 at 1671.

In this case, the appellant confessed in his statement that he took part in the commission of armed robbery. Confession, no doubt is the best evidence. See: Saburi v. Adebayo v. Attorney- General Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221-222. Apart from that, he was found with part of the stolen items, soon after the act of robbery. In this scenario, identification was not necessary. Such would have been superfluous. The cases cited by the counsel to the appellant are not in point The Court of Appeal got it right when it held as follows :-

“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.” The next serious point canvassed on behalf of the appellant which I wish to touch briefly, relates to appellant’s casual plea of alibi. Literally, it means elsewhere. It is the duty of the accused person to furnish the particulars of his whereabout and those present with him at the material time of the incident. It is then left to the prosecution to investigate same with a view to disproving it. And failure to investigate may lead to an acquittal of the accused person. See: Yanor v. The State (1965) NMLR 337; Odu & Anr. v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt. 772) 668.

In the matter, the appellant told the Police that he was at a naming ceremony with an unnamed sister. Apart from that, no address was given to facilitate the investigation of the alibi which was tacitly put up by him. See: Emmanuel Eke v. The State (2011) 3 NWLR (Pt. 1235) 589. It must be emphasized that it is not the business of the prosecution to embark upon a wild goose chase. The court below was right when it found that the defence of alibi cannot avail the appellant. After all, it is not every failure of the Police to investigate an alibi raised by an accused person that is fatal to the prosecution’s case. See: Ochemaje v. The State (2008) 6 SC (Pt. 11) 1; Udoebre v. The State (2001) 6 SCNJ54.

Let me further touch briefly the doctrine of recent possession relied upon by the trial court and affirmed by the court below in nailing the appellant for the offence of armed robbery.

The applicable section 148(a) of the Evidence Act, as at 1999 provides that:

“The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural event, human conduct and public and private business in their relation to the facts of the particular case and in particular the court may presume –

(a) that a man who is in possession of stolen goods after the theft is the thief or has received the goods knowing them to be stolen unless he can account for his possession.”

From the evidence which was believed by the trial court and affirmed by the court below, the appellant was caught with the robbed items some hours after the robbery incident on the same day. No doubt, the doctrine of recent possession was rightly and properly invoked to convict the appellant of the offences charged. Put bluntly, the doctrine of recent possession caught up with the appellant. And he got enmeshed and could not wriggle out of it. Case law authorities in this respect appear replete; in the main. See: R. v. Kwashie (1950) 13 WACA 86; R. v. Sunday Jumbo (1960) LLR 192; R. v. Opara (1961) WNLR 127; Madagwa v. The State (1988) 5 NWLR (Pt. 92) 60 at 84-85; Nwachukwu v. The State (1985) 3 NWLR (Pt. 11) 218; Eze v. 77K? State (1985) 3 NWLR (Pt. 13) 429 and Salami v. The State (1988) 3 NWLR (Pt. 85) 671.

For the above reasons and the detailed ones adumbrated in the lead judgment which I hereby adopt, I too feel that the appeal is devoid of merit and should be dismissed. I order accordingly. The appellant should be thankful for the reduced sentence by the court below. I hereby keep my peace.

 

MARY PETER-ODILI, JSC:

I am in total agreement with the judgment and reasoning just delivered by my learned brother, Kumai Bayang Aka’ahs JSC. I shall state some comments to underscore my support.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division also hereinafter referred to as the “court below” delivered on the 12th April, 2011 wherein that court upheld the decision of the trial court which convicted the appellant for the offences of conspiracy to commit armed robbery and armed robbery.

The appellant and two others, Abubakar Mohammed and Idowu Sliittu were arraigned before the Ogun State High Court of Justice, Ota Judicial Division on a charge of conspiracy to commit armed robbers’ and armed robber}7 contrary to Sections 5 (b) and l(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments etc) Act 1999. The appellant pleaded not guilty to the charge. The trial

commenced and while the prosecution called ten witnesses and tendered various exhibits, the appellant testified for himself and called no witness. At the end of the trial the appellant was convicted and sentenced to death in a judgment delivered by Hon. J Justice O. A. Ogundepo on 16 August 2004.

The appellant dissatisfied with the decision appealed to the Court of Appeal which affirmed the conviction and sentence, however commuting the sentence from death to life imprisonment. Again dissatisfied the appellant has appealed to this court.

FACTS

On the 15th February, 1999 there were a series of robberies at No. 24 Ajana Street, Ijako Ota and No. 1 Oladasu Adegun Street, Isirosi, Ota, Ogun State. The premises were invaded by a gang of armed robbers armed with guns, daggers, cutlasses and sticks. The robbers overpowered their victims who alleged after, that their two sets of lace material, two sets of cupion material, a pair of kito slippers, a pair of female shoe, a jacquard wrapper, one native agbada, 4 different types of Okene material, one lock set, two cassette players, one carpenter’s pipe range, two jeans trousers, one complete jacquard, one complete Ankara material, one dectiic jug, three calculators, a bunch of keys, four travelling bags and money were carted away by the robbers.

An alarm was raised during the robbery operation and the villagers and members of the vigilante group were on the alert. The appellant and Abubakar Mohammed were seen around the vicinity of the robbery with incident bags. On arrest and the bags being searched, PW1, PW2, PW4, PW5 and PW6 each identified then’ properties as among those items recovered from the appellant and Abubakar Mohammed. The case of Conspiracy and armed robbery was incidented leading to the conviction and sentence aforesaid.

On the 21st day of February 2013 date of hearing the learned counsel for the appellant adopted his brief of argument settled by Dr. Akin Onigbinde and filed on 26/3/2012. In it were distilled six issues for determination, viz:

  1. Whether the trial court has jurisdiction to try the appellant on an information filed by the Attorney-General of Ogun State in respect of an offence under an Act of the National Assembly being an offence exclusively preserved for the Attorney General of Federation under Section 174 of the Constitution of the Federation Republic of Nigeria.

2.Whether the information upon which the appellant was tried was not incompetent in view of the failure of the prosecution to file same within the mandatory statutory time frame of 21 days stipulated by sections 9 (3) and 12(5) of the Armed Robbery and Firearms Act.

3.Whether the irregularities in the taking of the plea of the appellant at his arraignment were not of such fundamental nature as to deny the appellant fair trial and thus render the entire proceedings a nullity.

4.Whether the court below was right in agreeing with the trial court that in the circumstances of the case, an identification parade was not necessary, given the fact that the appellant was neither arrested at the scene of crime nor did any of the prosecution witnesses know him before the commission of the crime.

5.Whether the court below was right in holding that the appellant did not provide sufficient particulars to have availed himself of the defence of Alibi.

6.Whether given the surrounding circumstances of this case, the court below was right in relying on the doctrine of recent possession in affirming the conviction of the appellant for the offence of Armed Robbery.

Learned counsel for the respondent adopted their brief of argument SQtthd by B. A. Adebayo Esq. and filed on &/&/12. He adopted for use the six issues as crafted by the appellant.

ISSUE NO. 1

Whether the trial court has jurisdiction to try the appellant on an information filed by the Attorney-General of Ogun State in respect of an offence under an Act of the National Assembly being an offence exclusively preserved for the Attorney General of Federation under Section 174 of the Constitution of Ithe Federation Republic of Nigeria as amended.

Learned counsel for the appellant said that the appellant and the co-accused were charged under a Federal Enactment or Act of the National Assembly, and which Act is not within the purview of the powers of the State Attorney General to prosecute and so the information

by the State Attorney -General was invalid being inconsistent with the constitution. He cited Adekoye v N. S. P. M. Company Limited (2009) ALL FWLR (Pt. 463) 1263 at 1276; Securities and Exchange Commission v Kasuma (2009) ALL FWLR (Pt. 475) 1684; Nigeria Peoples Party

v Na’Allah (2009) ALL FWLR (Pt. 492) 1193 at 1218.

For the appellant was further contended that the trial court had no jurisdiction to entertain the incompetent information. That the trial and decision clearly were null and void. He referred to INEC v Musa (2003) 3 NWLR (Pt. 906) 72 at 157.

That Section 9 of the Act cannot override the provision of Section 174 of the 1999 Constitution of the Federation (as amended). He cited Nwankwo v Yar’Adua (2010) ALL FWLR (Pt. 534) 1 at 51; Bamaiyi v. A. G. Federation (2001) FWLR (Pt. 64) 344; ANSA v R.T.C.N (2008) ALL FWLR (Pt. 405) 16S1 at 1704. That the powers of the Attorney General of Ogun State are limited and circumscribed by the provision of the Criminal Code of his State and his power cannot be

extended to the institution of criminal cases in respect of Federal enactments. He referred to Awobutu v The State (1976) 4 SC (Reprint) 27 at 48; Ocean Fisheries Nig Ltd v Veepee Industries Limited (2009) ALL FWLR (Pt. 470; 782 at 788.

Learned counsel for the respondent submitted that Section 9 of the Robbery and Firearms (special Provisions) Act 1990 is explicit in the powers of prosecution on the State Attorney General where the Tribunal is established and operating. That this is well covered by Section 211 of the 1999 Constitution while Section 174 of the same constitution has to do with the exclusive power in criminal proceedings of the Federal attorney. He stated on that by virtue of Section 315 of the 1999 Constitution, Robbery and Firearms (Special Provisions) Act 1990 became an existing law of the state which Act is deemed to have been made by the State House of Assembly.

Learned counsel for the respondent said armed robbery is not a matter on the exclusive or concurrent legislative list but a residual matter which the National Assembly does not have the legislative competence to legislate over. That in that vein the Act of 1990 was made by the Federal Government of Nigeria for the use of the States. He relied on Emelogu v The State (1988) 2 NWLR (Pt. 78) 524.

The grouse of the appellant is that the law under which the appellant was charged before a High Court of Ogun State was an Act of the National Assembly which prosecution ought to be made by the Federal Attorney General or such officer in the Federal Ministry of Justice or may be a legal practitioner armed with the fact of the Federal Attorney General.

The respondent is not at peace with that position of the appellant stating that the Robbery and Firearms Act as amended was deemed to have been made by the State House of Assembly being intended for State offences of armed robbery not for Federal.

References to certain relevant statutes would help to clear the way. Section 174 of the 1999 Constitution provides as follows:

“174(1). The Attorney General of the Federation shall have power:

(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court martial , in respect of any offence created by or under any Act of the National Assembly”

Conversely section 211 of the same 1999 constitution provides thus:

“(1). The Attorney General of a State shall have power (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than court martial in respect of any offence created by or under any law of the House of Assembly.”

The law in question or central to this appeal is the Robben7 and Firearms (special Provisions) Act 1990 and Section 9 thereof provides in clear terms that 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 particular- state as the Attorney General or the Solicitor-general as the case may be had authorized to take the prosecution.

Learned counsel for the appellant contends that Section 9 of the Robber}’ and Firearms Act 1990 is pitched against Section 174 of the 1999 constitution and so without the Federal Attorney -General or the Federal Officers a prosecution for armed Robbery just would not fly. That debatably would have been so, had not section 315 (1) of the 1999 constitution made the provision that removed the possibility of a lacuna with the following provision:

“Section 315(1) ………………….. subject to the provisions of this constitution, an existing law shall have effect where such modifications may be necessary to bring it into conformity with the provisions of this constitution and shall be deemed to be:

(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this constitution to make law and

(b) A law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the constitution to make law.”

It is to be seen that the issue of the Supremacy of the Constitution over any other legislation including the Robber}’ and Firearms Act does not arise since the Constitution by itself had bridged whatever gap that would have thrown up the supremacy challenge. Therefore the judicial I authorities cited by learned counsel for the appellant like Adekoye v N. S. P. M. Company Limited (2009) ALL FWLR (Pt. 463) 1263 at 1276; Securities and Exchange Commission v Kasuma (2009) ALL FWLR (Pt. 475) 1684 etc are not relevant for our purposes in this appeal. For effect this issue herein has been properly dealt with by this court in Emelogu v The State (1988)2 NWLR (Pt. 78) 524 wherein this court in full session had held that by virtue of Section 191 of the 1979 constitution impari materia with Section 211 of the 1999 constitution the power to institute the prosecution of criminal case is vested in the State Attorney-General and because the Robbery and Firearms (Special Provisions) Act 1990 operates as a state law, it is within the ambit of the authority of the State Attorney-General of Ogun State to prosecute.This issue without doubt is in favour of the respondent as here is no question of a lack of jurisdiction on the State Court of Ogun State to adjudicate or a lack of locus standi of the State Attorney General.

ISSUE NO 2

Whether the information upon which the appellant was tried was not incompetent in view of the failure of the prosecution to file same within the mandatory statutory time frame of 21 days stipulated by sections 9 (3) and 12(5) of the Armed Robbery and Firearms Act.

Learned counsel for the appellant said that by virtue of Section 9 (3) and 12(5) of the Armed Robber}7 Firearms (Special Provisions) Act, the prosecuting authorities have a maximum of 21 days to institute criminal proceedings from the day of the arrest of an alleged offender. That for the reason above the information charging the appellant w7hich was not done until 29th March, 2000 after being arrested on the 15m February, 1999, a period of over one year and in excess of the period allowed. He said this lapse goes to the jurisdiction of the court to adjudicate and the action was incompetent. He cited W. A. P.C. Plc v Adeyeri (2003) 12 NWLR (Pt. 835) 517; Minister of Works and I Housing v Shittu (2008) ALL FWLR (Pt. 401) 847 at 863: Chukwuogor v Chukwuogor (2007) ALL FWLR (Pt. 349) 1154; Orakul Resource Limited v NCC (2007) LL FWLR (Pt.390) 1482.

Countering the above submission, learned counsel for the respondent said the appellant’s contention was based on a none existent provision of the law. Sections 9, 10, 11, 12 and 14 of the Robbery and Firearms (Special Provisions) Act 1990 having been deleted before the appellant was charged.

The charge upon which the appellant was arraigned was based on Section 5(b) and 1 (2) (a) of the Robbery and firearms (Special Provisions) Act 1990 as amended by Tribunal (Certain Consequential } Amendments etc) Act 1999. This 1999 amendment Act deleted certain j Sections of the 1990 Act including sections 9 – 12 and 14 of which the 1 provision requiring the filing of the information within 21 days had been j deleted. Therefore the submission of the Tribunal acting without j jurisdiction on account of an incompetent charge or information does not J arise.

This Issue 2 is also resolved against the appellant.

ISSUE NO 3.

Whether the irregularities in the taking of the plea of the appellant at his arraignment were not of such fundamental nature as to deny the appellant fair trial and thus render the entire proceedings a nullity.

Learned counsel for the appellant said the way the trial Judge recorded the taking of the plea did not show that each count was read individually to each accused who pleaded individually and so in breach of Section 215 of the Criminal Procedure Code and fatal to the proceedings. He cited Ayinde v The State (1980) 2 NCR 242; Kajubo v The State (1988) 3 SCNJ (Pt. 1) 79; Ovediran v The Republic (1967) NMLR 122; Josiah v The State (1985) 1 SC 406; Daniel Adeove v The State (1999) 4 SC (Pt. II) 67 at 71.

For the respondent was posited that the record at page 13 showed that the charge was read and explained to the appellant in Yoruba language who having perfectly understood the same pleaded not guilty to the 6 counts of the charge. That the important thing is that an accused is not misled as to what he is facing. That Section 215 of the Criminal Procedure Law of Ogun State was complied with.

The appellant raises the issue of a flawed plea taking not in keeping the law as it was not recorded that the charge was read individually and explained individually and the understanding per person. The learned trial Judge had recorded as follows:

“The charge is read and explained to the 2nd and 3rd accused persons in Yoruba and having perfectly understood same, they all pleaded not guilty to the 6 count charge.

Of note is that he accused persons were represented by learned counsel and so if there was an irregularity in the plea taking would have raised the point being also an officer of the court. However the learned trial Judge having recorded that the accused “perfectly understood” means it was to his (judge’s) satisfaction which is what Section 215 of the Criminal Procedure Law of Ogun State required. Nothing is shown of any irregularity or infraction of what the law has provided and there is nothing to point to the appellant and his co-accused having been misdirected or misled in any way as to the nature of the charge or any suggestion of a miscarriage of justice in the course of the plea.

This issue 3 is also resolved against the appellant.

ISSUES NO 4 & 6

Whether the court below was right in agreeing with the trial court that in the circumstances of the case, an identification parade was not necessary, given the fact that the appellant was neither arrested at the scene of crime nor did any of the prosecution witnesses know him before. Also the matter of recent possession.

For the appellant was put across that the identification of the appellant was not properly ascertained since he was not arrested at the scene in the process of committing the offence or confessed to committing the offence. This especially since he was not known to the victims or witnesses previously and so the conviction and sentence cannot be sustained. He referred to Adisa v The State (1991) 1 NWLR (Pt. 168) 490 at 509; Omopupa v The State (2008) ALL FWLR (Pt. 445) 1648 at 1671.

Learned counsel for the respondent said the appellant was arrested shortly after the offence was committed around the scene of crime with some of the items stolen in his custody. That an identification parade was not necessary.

The need of identification parade being touted by the appellant smacks of an afterthought, when the appellant made a Confessional Statement admitted in evidence without protest or challenge. That Statement taken alongside the fact that appellant and another of his colleagues were seen close to the scene of the crime having 3 bags which the victims identified as their stolen property and some other items properly identified by the owners within some hours of robbery. The circumstances made unnecessary an identification parade as the appellant and his co-accused were unable to rebut the presumption of law, that a person found so soon after a robbery with items stolen at the incident is either the thief or robber or received the items knowing them to have been stolen. See Section 167 (a) Evidence Act.

Indeed there is enough on which the presumption under Section 167 (a) of the Evidence Act would be successfully invoked to the effect that the appellant being found not far from the scene of crime within hours of the robbery with the robbery items was one of those who committed the crime.

The two issues 4 and 6 are resolved against the appellant.

ISSUE NO 5

Whether the court below was right in holding that the appellant did not provide sufficient particulars to avail himself of the defence of Alibi.

Learned counsel for the appellant said that appellant thneously raised his defence of Alibi with particulars. That the prosecution failed to dislodge the defence and so it should be favourable to the appellant. He cited Oshodin v The State (2002) FWLR (Pt. 90) 1336 at 1345; Njiowuemeni v The State (2001) FWLR (Pt. 55) 538 at 546 – 8 etc.

For the respondent was submitted that the alibi put forward by the appellant would not avail him since the evidence pinned him at the scene of crime at the material time. Also that appellant had not even supplied sufficient particulars for investigation and support of the alibi. He cited Emmanuel Eke v The State (2011) 3 NWKR (Pt. 1235) 589; Yanor v the The State (1965) NMLR 337; Ochemaie v The State (2008) 6 SC (Pt. II); Udoebrev The State (2001) 6 SCNJ 54.

In this respect there was nothing on which an alibi could be investigated and placed along with the answer to issue 4 whereby the appellant was effectively pinned to the incident and the crime scene, the prosecution cannot be impugned that an alibi was not investigated and not fatal. See Ochemaie v The State (200S.) 6 SC (Pt. IT) Yanor v the The State (1965) NMLR 337; Udoebre v The State (2001) 6 SCNJ 54.

This issue is also resolved against the appellant. That being so, from the above and the well articulated reasoning in the lead judgment, I dismiss this appeal as lacking in merit.

 

COUNSELS

Dr. Akin Onigbinde, Richard Baiyeshea, Stewart David, Deji Adeyemi for Appellant

B. A. Adebayo Esq. DDPP Ogun State, Olumuyiw^a Ogunsanwo, Asst. Chief State Counsel Ogun State for the Respondent.|

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