MOHAMMED UMOR v. THE STATE
(2018)LCN/11855(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/EK/89C/2016
RATIO
CRIMINAL LAW: WHERE A PERSON IS CHARGED WITH ARMED ROBBERY
“It is an established principle of law that it is not necessary that the person charged with armed robbery be armed with any firearm or any offensive weapon himself. Once he is in company of any person who is so armed when the offence was committed, it will suffice to find him guilty of the offence of armed robbery. See SECTION 1 OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP. R 11, LAWS OF THE FEDERATION OF NIGERIA 2004. OSUNG V STATE (2012) ALL FWLR (PT. 650) 1226 at 1245.” PER PAUL OBI ELECHI, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“It is settled principle of law as handed down by the Supreme Court, that Alibi as a defence should be raised at the earliest opportunity and that opportunity is in the investigation room. This will enable the police to investigate the alibi. The police cannot investigate an alibi raised at the trial. It is too late, it is an afterthought. See NDIDI V. SATTE (2007) ALL FWLR (PT 381) 1617 at 11647 PARAS. E-F; EBENEHI V. STATE (2009) ALL FWLR (PT. 486) 1825 at 1833 PARAS. C-E.” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“It is trite that the function of the evaluation of evidence is essentially that of a trial Judge and where the trial judge has unquestionably evaluated evidence and justifiably appraised the fact, it is not the business of an appeal Court to interfere, and substitute its own views for the view of the trial Court. See; BOLANLE V. STATE (2010) 4 WRN 26; AND OKOROJI V. STATE (2001) FWLR (PT. 77) 871. He then urged the Court to resolve this issue in the Respondent favour.” PER PAUL OBI ELECHI, J.C.A.
CRIMINAL LAW: OFFENCE OF ARMED ROBBERY
“The ingredients of the offence of armed robbery which the prosecutor needs to establish beyond reasonable doubt to secure the conviction of the Appellant for the one (1) count charge as preferred against him at the trial Court and which are as follows: (i) That there was a robbery (ii) That the robbery was an armed robbery (iii) That the Appellant while with the arms participated in the robbery. See Aruna v State (1990) 6 NWLR (pt 155) 125 at 135, Sowemimo v State (2011) ALL FWLR (pt 599) 1064, Bozin v State (1985) 2 NWLR (pt 8) 465 at 474.” PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
MOHAMMED UMOR – Appellant(s)
AND
THE STATE – Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Ekiti State Sitting at Ado Ekiti Judicial Division as delivered by His Lordship Hon. Justice J.O. Adeyeye on the 26th of June 2014. The said Judgment on one (1) count charge of the offence of Armed Robbery and he was sentenced to death by hanging. (Pages 88-105 of the Record)
The Appellant was charged before the High Court of Ekiti on one (1) count charge of Armed Robbery contrary to Section 1 (2) (a) of the Armed Robbery and Firearms (Special Provision) Act Cap R. 11 Vol. 14 Laws of the Federation of Nigeria 2014 on 15th July 2013 to which he pleaded not guilty. Trial therein commenced on the 25th day September 2013.
In the course of trial, the Respondent called five witnesses who gave evidence as PW1-PW5 and the Appellant gave evidence along with the co-accused person charged with him as 1st Accused Person. (Pages 21-53 and pages 60 of the Records respectively).
The Prosecution case at the Trial Court. The Prosecution’s case was that the Appellant with the co-accused person robbed one Mohammed Aliyu of one Cow, and at the time of the robbery, he was armed with offensive weapons to wit: cutlass along Igbara-Odo Road, Ikere-Ekiti in Ekiti State of Nigeria on the 17th day of February 2012.
The evidence of Mr Ajayi Ola and Mr Ajayi Muyiwa (pw1 and pw2 respectively) were that on the 17th day of February 2012 they were on duty with other members of vigilante group employed by Ikere Local Government, Ikere ?Ekiti when a night guard at about 10.30 p.m. came to report to them that he suspected a vehicle parked along Igbara ? Odo Road because he had never seen such vehicle along that road before. Pw1 and pw2 said that shortly after they got the information from the night guard, one Hausa man ran to them and reported that armed robbers attacked them and took away their cows. PW1 said that himself, PW2 and Mr Idowu Aparimo went to investigate. PW1 said that on getting to the scene, he saw a fourteen seater bus along the road, a cow already inside the bus and a second cow been loaded. PW1 said that he was about to ask the people loading the cows questions, when other members of the robbery gang came out from the bush and attacked them.
PW1 said that he was hit on the head with iron. PW1 said that the Appellant and the co-accused entered the bus and escaped with it. PW2 said that when he got to the scene, he saw a cow in the white bus, that the robbers were trying to load the second cow. PW2 said that he stopped to see what was happening when they were attacked with cutlass and sticks. Pw2 said that he wanted to fight the robbers, when they took to their heels and ran into the bush and the 2nd accused person escaped with the bus. PW2 said that they pursued the bus. Pw2 said that the following day, the police called them that they have arrested the accused persons and they went to the police station at Ikere where they saw the accused persons.
The Police during their investigation arrested the Appellant and the co-accused person. The prosecution at trial tendered the written statement of the Appellant. The Appellant’s first statement made at Ikere Police station was admitted in evidence and marked as ‘Exhibit A’ but the Appellant second statement made at the state C.I.D. was objected too but overruled by the learned Trial Judge and marked as ‘Exhibit C’.
The Appellant testified on his own behalf and did not call any witness. The Appellant’s case that he was not involved in the robbery incident. The Appellant said that he was called out on the early morning of the 18th day of February 2012 by his boss, Mr Mohammed Umor (Co-accused) to assist one Alhaji Umoru, whose vehicle has broken down. The Appellant said that he was arrested with the co-accused by the Police at a checking point along Igbara-Odo Road.
The learned Trial Judge held that ‘there is sufficient direct and circumstantial evidence in the case which points irresistibly to the guilt of the accused persons’. The learned Trial Judge therefore held that the prosecution had proved its case of armed robbery against the Appellant.
Being dissatisfied with the decision of the lower Court, the Appellant herein filed a Notice of Appeal dated 4th May, 2016 albeit, out of time but pursuant to the Order of this Honourable Court made on the 20th day of April, 2016, containing two(2) grounds of appeal. The Notice appears at pages 108-109 of the Record. Subsequently, two (2) additional grounds of appeal were incorporated into the Amended Notice of Appeal dated 29th day of March, 2017 and filed on the 30th day of March, 2017, pursuant to the order of this Honourable Court made granting leave to file same on the 21st day of March, 2017.
ISSUE FOR DETERMINATION
(1) Whether or not there was sufficient evidence before the trial Court to support the Appellant?s conviction of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004?
(2) Whether the Honourable Court was right to have convicted the Appellant without any evidence of identification since he was not arrested at the scene of crime?
ISSUE 1
Whether or not there was sufficient evidence before the trial Court to support the Appellant?s conviction of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.
According to learned Appellant counsel this;
First issue is distilled from grounds 1, 2, 3, grounds of appeal as contained in the Amended Notice of Appeal filed by the Appellant in this matter. The ingredients of the offence of armed robbery which the prosecutor needs to establish beyond reasonable doubt to secure the conviction of the Appellant for the one (1) count charged as preferred against him at the trial Court and which are as follows:
(i) That there was a robbery
(ii) That the robbery was an armed robbery
(iii) That the Appellant while with the arms participated in the robbery.
All these above three ingredients according to learned counsel must co-exist and they must each be proved before the Appellant can be found guilty of the crime. Demo Oseni v. The State (2012) 2 SC (Pt. 11) 51
It is contended that the duty of the prosecution in criminal cases has been settled in a plethora of authorities. Simply put, the prosecution has the duty to prove the case against the accused person (Appellant) beyond reasonable doubt. Section 135 of Evidence Act 2011, The State v. Oladotun (2011) 10 NWLR (Pt. 1256) 542 at 572. This burden never shifts. Where the prosecution fails in this duty, the Appellant must be discharged and acquitted- Kayode v. The State (2012) 11 NWLR (Pt. 1312) pg. 523 at pgs. 540-541.
The evidence relied upon by the learned Trial Judge in convicting the Appellant for the alleged offence are the statements of PW1 and Pw2 that they were attacked by other members of the robbery gang, who came out of the bush.
From the evidence of PW1, PW2 and PW3, it is submitted by learned counsel that there was no evidence that the Appellant was armed and it was therefore wrong in law for the trial Court to say that the accused persons were not seen with arms or offensive weapons is not sufficient to conclude that the accused persons were not armed or that it was not established by the prosecution that the robbery was an armed robbery.
The prosecution he stated did not prove the ingredients of armed robbery against the appellant.
He then urged the Court to resolve this issue in favour of the Appellant.
ISSUE 2
Whether the Honourable Court was right to have convicted the Appellant without any evidence of identification since he was not arrested at the scene of crime?
The second issue relates to ground 4 of the grounds of appeal as contained in the Amended Notice of Appeal. In plethora of cases, it has been held that identification parade is essential in the following instances.
(a) Where the victim did not know the accused person before and the first acquaintance with him was during the omission of the offence.
(b) Where the victim or witness was confronted by the offender for a very short time and;
(c) Where the victim, due to time and circumstance, might not have had the full opportunity of observing the features of the accused (person). See ADEBIYI V. THE STATE (2016) 10 SCM. See also IKEMSON V. STATE (1989) 3 NWLR (PT. 100) 642; CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686; EYISI V. STATE (2000) 15 NWLR (PT.691) 555
From the Record, it is obvious that no identification parade was done. We submit that this offence happened at night, while the learned trial judge held that ”a night guard at about 10:30 p.m came to report them.” see page 88 of the Record. We also submit that the witnesses only glanced at the offender. PW2 said ..As they stopped to see what was happening, they were attacked with cutlass and sticks?. See page 90 of the Record.
It is submitted that all the Prosecution’s witnesses have no time under the circumstance they faced that night to have had the full opportunity to observe the features of the Appellant.
He then submitted that since the Appellant raised the defence of alibi at the earliest opportunity and in his statements, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. See: Kabir Almu v. the State (2009) 4-5 SC (Pt. III) 33. Furthermore, in Idowu Salami v. The State (1988) 7 SC (Pt III) 89 states: Once the accused has set forth his abili, it is not his duty to establish by evidence the alibi but for the prosecution to disprove it.
The Court is therefore urged to disallow the conviction and sentencing of the Appellant on the failure of the prosecution to prove one of the ingredients of armed robbery, that is, that the Appellant was armed. See Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 on the presumption of the Appellant’s innocence until proven guilty and Jeremy Bentham’s Utilitarian Philosophy which says that ”It is better than ten guilty persons escape than that one innocent suffer.”
Moreso, as the alleged offence carries stiffer and capital punishment which may be irreversible in any subsequent discovery of the Appellant’s innocence.
He then urged the Court to resolve this issue in favour of the Appellant.
On the whole, he urged the Court to allow the Appeal and set aside the judgment of the lower Court and acquit and discharge the Appellant.
The Respondent formulated the following issues for determination in this appeal thus:
(a) Whether the failure to conduct identification parade by the Respondent is fatal to its case in view of the available evidence before the trial Court (Ground 4)
(b) Whether the lower Court was not right in deciding that upon the totality of evidence adduced by the Respondent, the case of armed robbery of 17/2/2012 was proved beyond reasonable doubt against the Appellant.(Ground 1,2,&3).
ARGUMENT ON ISSUES
ISSUE ONE
(a) Whether the failure to conduct identification parade by the Respondent is fatal to its case in view of the available evidence before the trial Court (Ground 4)
Learned respondent counsel submitted that the failure of the prosecution to conduct identification parade is not in any way fatal to its case. This is so because the question whether the Appellant was properly identified or not is a question of fact to be determined by the trial judge. See Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439 at 442
In the case at hands, there was no mistake in the identity of the appellant considering the unchallenged evidence of the prosecution?s witnesses which clearly fixed and linked the Appellant with the commission of the alleged offences.
It is the law that identification parade should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the alleged reasons. See: IKEMSON V STATE 2010 1991 (2) NWLR (PART 175) 509; AWOSIKA V STATE (2010) 18 WRN 149 AT 178.
Worthy of note is the testimony of PW2 who was a member of the vigilante who gave evidence that he saw the faces of the accused persons because of the moon light and the light of the motor cycle. This piece of evidence really fixes the Appellant and accurately fixed him to the Scene of crime on the 17/2/2012. Unfortunately, the Appellant never challenged this piece of evidence when he testified for himself on the 30/4/2014 in open Court.
It is submitted that there are instances under our criminal Justice system where the necessity of conducting identification parade will be dispensed with. These are:
(a) Where there is good and cogent evidence linking the accused person to the alleged crime on the day of incident.
(b) By the accused’s confessional statement, he identified himself. See OSUNG V STATE (2010) 5 WRN 132 at 137.
The credible evidence of PW2 amongst other prosecuting witnesses were not cross-examined on their pieces of evidence during cross-examination. See Oforlete v. State (2009) 8 ACLR 369 at 405, Alor v. State (1998) 1 ACLR 658 AT 669.
He then urged the Court to resolve this issue in favour of the Respondent.
ISSUE 2
Whether the lower Court was not right in deciding that upon the totality of evidence adduced by the Respondent, the case of armed Robbery of 17/2/2012 was proved beyond reasonable doubt against the Appellant (Grounds 1, 2, & 3 of the grounds of Appeal).?
Learned counsel submitted that the prosecution called five witnesses and proved by direct and circumstantial evidence the ingredients of the offence of armed robbery against the Appellant thus
(a) That there was a robbery or series of Robberies
(b) That the accused person was or with the robbers who took part in the robberies. See Aruna v. The State (1990) 6 NWLR (Pt. 155) 125 AT 135, Sowemimo v. State (2011) ALL FWLR (Pt. 599) 1064, Bozin v. State (1985) 2 NWLR (Pt. 8) 465 at 474
In establishing the first ingredient i.e. there was a robbery or series of robberies, PW3 the complaint/victim and PW1, PW3, PW4 and PW5 were consistent in their evidence that there was a robbery along Igbara Odo-College Road in the night of 17/2/2012. PW3 testified that he was sleeping in his camp along College road when he observed that his cows were running his direction and in his bids to ascertain what was pursuing the cows, he saw the appellant and other members of his gang holding cutlasses. He saw them because there was moonlight. PWs 1 & 2 were also unanimous in their testimony that they saw the Appellant and the co-accused (Ojo Ojomo) where a white bus was parked trying to put a cow inside it.
In establishing the second ingredient, i.e. that the robbery was armed robbery.
The prosecution also called direct eye witness to establish this. PW3 was unequivocal in his testimony that he saw the robbers with cutlasses when they invaded his camp. PW1 & 2 maintained in their evidence that they saw the appellant and the co-accused trying to put a cow in a white bus and they challenged them and almost immediately members of the gang came out from the bush and attacked them which paved way for the appellant to escape from the scene with the already-loaded cow without closing the booth of the bus. The Appellant confirmed during his testimony that he is the owner of the white bus they were arrested with and that he engaged Ojo Ojomo, the co-accused as his driver as he can’t drive.
It is an established principle of law that it is not necessary that the person charged with armed robbery be armed with any firearm or any offensive weapon himself. Once he is in company of any person who is so armed when the offence was committed, it will suffice to find him guilty of the offence of armed robbery. See SECTION 1 OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP. R 11, LAWS OF THE FEDERATION OF NIGERIA 2004. OSUNG V STATE (2012) ALL FWLR (PT. 650) 1226 at 1245.
On the third ingredient i.e. that the Appellant was one of the robbers who took part in the robbery, it is our humble submission that the respondent with the overwhelming and uncontroverted evidence of its witnesses especially PW1 & 2, already analyzed above, coupled with circumstantial evidence had established that the Appellant was one of the robbers who invaded the camp of the PW3 on 17/2/2012 and violently stole his cow.
It is in evidence that the PW 1 & 2 pursued the appellant when they escaped from the scene and they met police at a check point. They explained to the police what has happened. It was the description given by these witnesses that led to the arrest of the appellant on the second day of the incident. The appellant and the co-accused were arrested with a white bus. It is submitted that this is a circumstantial evidence which conclusively point to the fact they were responsible for the armed robbery of the 17/2/2012. See CHUKWU V. STATE (2007) ALL FWLR (PT. 389) 1224 at 1229-1230.
The appellant contended that the police officer who arrested the appellant was not called as a witness and thereby maintained that the respondent has not proved the case beyond reasonable doubt.
He argued further that the conviction and subsequent sentence of the appellant were based on the statement of PW1 & 2.
It is submitted that the prosecution has no duty to call a barrage of witnesses before the Court can convict an accused person. One witness of truth can result in the conviction of an accused person unless in an offence where corroboration is statutorily required. See; AKPA V. STATE (2008) ALL FWLR (PT 420) 644 at 651.
The Appellant contended that he timeously raised a defence of alibi and that once that is done, the burden is on the prosecution to investigate and rebut the defence. It is submitted that:
Even though this case was investigated at two levels of Police investigation, Exhibits A & C being Appellant’s statement did not contain any defence of Alibi in any of the Exhibits.
It is settled principle of law as handed down by the Supreme Court, that Alibi as a defence should be raised at the earliest opportunity and that opportunity is in the investigation room. This will enable the police to investigate the alibi. The police cannot investigate an alibi raised at the trial. It is too late, it is an afterthought. See NDIDI V. SATTE (2007) ALL FWLR (PT 381) 1617 at 11647 PARAS. E-F; EBENEHI V. STATE (2009) ALL FWLR (PT. 486) 1825 at 1833 PARAS. C-E.
It is equally settled that where the defence of alibi consists of vague accounts which are simply placed before the Courts as make-believe of plea of that defence which are completely devoid of material facts worthy of investigation, there would be no need for investigation. See; SAKA VS. STATE (2006) ALL FWLR (PT 335) PG 148 at 163 OSUAGWU VS. THE STATE (2013) 5 NWLR (PT. 1347) PG. 360.
It is further submitted that the defence of alibi cannot avail the appellant in view of the overwhelming, unshaken and unchallenged evidence adduced by the prosecution witnesses especially PW1, PW2 and PW3 which clearly fixed the defendants to the scene of crime and other circumstantial evidence which undoubtedly linked the appellant with the armed robbery of 17/2/2012.
The evidence of these witnesses which are concrete coupled with other circumstantial evidence undoubtedly linked the defendant with the offence. See OMOTOLA & ORS V. STATE (2009) ALL FWLR (PT. 464) 1490 AT 1509. ADETOLA V. THE STATE (1992) 4 NWLR (PT 235) 267 AT 269, NWABUEZE & ORS V. STATE (1998) 7 SCNJ (PT. 11) 248 AT 263.
It is therefore submitted that the evidence of the prosecution witnesses effectively neutralizes the defence of alibi put up by the Appellant, and urged the Court to so hold.
Learned counsel then contended that the learned trial judge after a painstaking review of evidence adduced by the prosecution and the defence and evaluation of same, found that there was a robbery in the palace of PW1 on 17/2/2012, and that the robbers were armed, and that the Appellant participated in the robbery.
It is trite that the function of the evaluation of evidence is essentially that of a trial Judge and where the trial judge has unquestionably evaluated evidence and justifiably appraised the fact, it is not the business of an appeal Court to interfere, and substitute its own views for the view of the trial Court. See; BOLANLE V. STATE (2010) 4 WRN 26; AND OKOROJI V. STATE (2001) FWLR (PT. 77) 871. He then urged the Court to resolve this issue in the Respondent favour.
It is finally submitted that the lower Court rightly held that the alleged offence of armed robbery against the appellant was proved beyond reasonable doubt in view of the cogent and compelling evidence adduced against the Appellant, which clearly established that the appellant was one of the armed robbers that invaded the camp of PW3 on 17/2/2012.
The Court is therefore urged to dismiss the Appeal and affirm the decision of the trial Court of 26th day of June 2014 where in it convicted the Appellant and sentenced him to death.
To go into the issues formulated for determination by the parties, I shall adopt the issues as formulated by the Appellant thus:
1. Whether or not there was sufficient evidence before the trial Court to support the Appellant?s conviction for Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004?
2. Whether the Honourable Court was right to have convicted the Appellant without any evidence of identification since he was not arrested at the scene of crime?
ISSUE 1
Under the Nigerian Legal System, the criminal jurisprudence is to the effect that the Accused Person is presumed innocent until the contrary is proved and that the onus of proving that he is guilty of the offences charged is on the prosecution. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). By virtue of the provision of Section 36(5) of the Constitution, Nigeria operates an adversarial system that presumes a man innocent until he is proved guilty. In the case of FEDERAL CIVIL SERVICE COMMISSION VS LAOYE (1989) 2 NWLR (PT 106) 652 the Supreme Court confirmed the above stated position of law and in fact went ahead to state that to presume otherwise ?will constitute an unwarranted attack on our system of criminal justice?. See also ALABI VS THE STATE (1993) 9 SCNJ (PT 1) 109. So, the law is that the onus of proving that the Appellant is guilty of the offences preferred against him in this case is on the prosecution.
This first issue is distilled from grounds 1, 2, 3 ground of appeal as contained in the Amended Notice of Appeal filed by the Appellant in this matter.
The ingredients of the offence of armed robbery which the prosecutor needs to establish beyond reasonable doubt to secure the conviction of the Appellant for the one (1) count charge as preferred against him at the trial Court and which are as follows:
(i) That there was a robbery
(ii) That the robbery was an armed robbery
(iii) That the Appellant while with the arms participated in the robbery. See Aruna v State (1990) 6 NWLR (pt 155) 125 at 135, Sowemimo v State (2011) ALL FWLR (pt 599) 1064, Bozin v State (1985) 2 NWLR (pt 8) 465 at 474.
Learned Appellant counsel had made several submissions that the prosecution did not prove the ingredients of the offence of armed robbery against the Appellant.
On the other hand, the Respondent in establishing the first ingredient i.e. there was a robbery or series of robberies PW3 the complainant/victims and PW1, PW3, PW4 and PW5 were consistent in their evidence that there was a robbery along Igbara-Odo College road in the night of 17/2/2012. Pw3 testified that he was sleeping in his camp along College road when he observed that his cows were running towards his direction and in his bids to ascertain what was pursuing the cows, he saw the appellant and other members of his gang holding cutlasses.
He saw them because there was moonlight. PWs 1 & 2 were also unanimous in their testimony that they saw the appellant and the co-accused (Ojo Ojomo) where a white bus was parked trying to put a cow inside it.
In establishing the second ingredient, i.e. that the robbery was armed robbery. The prosecution also called direct eye-witness to establish this. PW3 was unequivocal in his testimony that he saw the robbers with cutlasses when they invaded his camp. PWs 1 & 2 maintained in their evidence that they saw the appellant and the co-accused trying to put a cow in a white bus and they challenged them and almost immediately members of the gang came out from the bush and attacked them which paved way for the appellant to escape from the scene with the already-loaded cow without closing the booth of the bus. It is vivid and logical for me to conclude that the appellant and those who emerged from the bush to attack PWs 1 & 2 were members of the same gang of armed robbers. The appellant confirmed during his testimony that he is the owner of the white bus they were arrested with and that he engaged Ojo Ojomo, the co-accused as his driver as he can’t drive.
Learned Appellant counsel had submitted that there was no evidence that the Appellant was armed. Be it so or not, it is however not necessary that the person charged with robbery be armed with any Firearm or any offensive weapon himself. Once it is observed that the Appellant was found to be in company of any person who is so armed when the offence was committed, it will suffice to find him guilty of the offence of armed robbery. See Section 1 of the Robbery and Firearms (Special Provisions) Act Cap 11 Laws of the Federation of Nigeria 2004, Osung v State (2012) ALL FWLR (pt 650) 1226 at 1245.
On the third ingredient i.e. that the Appellant was one of those who took part in the robbery the evidence of PW1 and PW2 and other circumstantial evidence embodied in the proceeding had established in no small way that the Appellant was one of the robbers who invaded the camp of the PW3 on the 17th February, 2012 and violently stole his cow.
It is in evidence that the PW 1 & 2 pursued the appellant when they escaped from the scene and they met police at a check point. They explained to the police what has happened.
It was the description given by these witnesses that led to the arrest of the appellant on the second day of the incident. The appellant and the co-accused were arrested with a white bus. This is a circumstantial evidence which conclusively point to the fact they were responsible for the armed robbery of the 17th day of February, 2012. See Chukwu v State (2007) ALL FWLR (pt 389) 1224 at 1229-1230.
On the alleged inability and or failure to call the police officer who assisted the Appellant, what may just be said there is that the prosecution has no duty to call a particular witness or a barrage of witnesses before the Court can convict an accused person or have its case proved beyond reasonable doubt. One witness of truth can result in the conviction of an accused person. This is so because credibility does not depend on the number of witnesses called. Therefore, the argument and submission of the Appellant that the prosecution ought to have called the said policeman to testify is neither here nor there.
The Appellant contended that he timorously raised a defence of alibi and that once that is done, the burden is on the prosecution to investigate and rebut the defence.
This case was investigated and Exhibits A & C being statements obtained in evidence.
However, there is no where the Appellant raised a defence of Alibi in either Exhibit A or C.
It is a settled principle of law as handed down by the Supreme Court, that alibi as a defence should be raised at the earliest opportunity and that opportunity is in investigation room. This will enable the police to investigate the alibi. The police cannot investigate an alibi raised at the trial. It is too late, it is an afterthought. See Ndidi v State (2007) ALL FWLR (pt 381) 1617 at 1647 Paras E-F; Ebenehi v State (2009) ALL FWLR (pt 486) 1625 at 1833 Paras C-E.
An Alibi defence is a defence which is aimed at persuading the Court that the accused person could not possibly be at the scene of the crime as he was somewhere else. Most probably there were people who could testify that the time the alleged crime and the date of the crime too, he was not at the scene of crime in raising the defence of Alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi to enable the police to check the details.
Failure to do same weakens the defence. See Sowemimo v. State (2004) 11 NWLR (PT. 885) 575, Nsofor v. State (2007) 10 NWLR (PT. 775) 274. The Appellant in this case did not furnish any details to substantiate his defence of alibi. Consequently, the defence of alibi does not avail him.
In addition, the evidence of PW1, PW2, and PW3 clearly fixed the Appellant to the scene of crime and the robbery incident on the 17/2/2012. Other circumstantial evidence also abound which linked the Appellant with the commission of the crime. The Appellant was arrested the next day in company of Ojo Ojomo with the white bus used in stealing the cows by the Special Response squard attached to College/Igbara-Odo Road and brought to Ikere Divisional Police, Headquarters Ikere Ekiti for investigation. The defence of alibi has been demolished by the credible evidence of the prosecution witnesses.
This issue is therefore resolved in favour of the Respondent.
ISSUE 2
Appellant’s contention in this issue is that the incident happened in the night and that the Appellant confronted the victim and the witnesses for a very short time and that necessitated an identification parade imperate.
In respect of this issue, the evidence of PW2 who was a member of a vigilante group stated both in his testimony in Court and even under cross-examination testified as follows:
”… I saw the faces of the accused persons because there was the moon light and the light of my motorcycle was on?I could identify the two accused persons because they were the people trying to load the second cow when we got to the scene and on seeing us they looked back and I saw their faces” (see: pages 28-29) of the record refers)
As a mark of admission, the Appellant did not challenge this piece of evidence when he testified in Court on the 30/4/2014. As a result, I do not therefore agree with the Appellant counsel?s submission that all the prosecution witnesses have no time under the circumstance they faced that night to have had the full opportunity to observe the features of the Appellant. Even the prosecution witnesses have not complained of any difficulty in identifying the Appellant for the learned Appellant’s counsel to go into such submission.
It is trite that where there is a clear evidence linking the Appellant with the offence alleged, it will not be necessary to carry out an identification parade whether or not the Appellant was arrested at the scene of crime or not. See Emmanuel Ugbunba v. The State (1993) 6 SCNJ 217. Consequently as a rule, an identification parade is not a sine qua non for identification of suspects in every case where there has been a fleeting encounter with the victim of the crime, if there is any other piece of evidence leading overwhelmingly to the identity of the perpetrator of the crime. See Jonathan Igbi & Anor v. The State (2000) 2 SCNJ 63.
The law is settled that the question whether an accused person was properly identified is a question of fact to be considered by the trial Court. In the present case at hand, the trial Judge believed the PW2 on his identification evidence and acted on it in his judgment.
It is trite that the function of the evaluation of evidence is essentially that of the trial judge. However, where the trial judge has unquestionably evaluated the evidence and justifiably appraised the facts, it is no more the business of the Appeal Court to intervene and substitute its own views for the view of the trial Court. See BOLANLE V. STATE (2010) 4 WRN 26, OKOROJI V. STATE (2001) FWLR (PT. 77) 871.
There was no need for any identification parade in this case even though the Appellant was not arrested at the scene of crime. The evidence of PW2 was very cogent and convicting as to the proper identification of the Appellant.
Therefore the trial Court was right to have convicted the Appellant as there was cogent evidence as to his identification and involvement in the commission of the offence on the 17/2/2012.
This issue is resolved in favour of the Respondent.
All the two issue formulated in this Appeal are all resolved in favour of the Respondent. The Appeal is devoid of merit and consequently dismissed. The Judgment of the Trial Court of 26th June 2014 convicting and sentencing the Appellant to death for armed Robbery is hereby affirmed.
Appeal Dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of a preview of the judgement just delivered by my learned brother, PAUL OBI ELECHI, JCA and, I agree that this appeal fails and that the same be dismissed.
I dismissed this appeal the decision of the High Court of Ekiti State delivered by Honourable Justice J.O Adeyeye on the 26th day of June, 2014 is hereby affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
Adewale Adesina, Esq.For Appellant(s)
Kolapo Kolade A.G. Ekiti State with him, Gbemiga Adaramola DPP and M. Abiola legal Officer.For Respondent(s)
