Lawrence Ogbodi Odidika & Anor V The State (1977)

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A. R. ALEXANDER, C.J.N.

The appellants were the first and second accused persons amongst seven accused persons tried by a tribunal pursuant to the provisions of the Robbery and Firearms (Special Provisions) Decree 1970 No. 47 of 1970, as amended (hereafter referred to as the Decree”) on charges of (1) robbing one Sylvanus Mbama of a motor vehicle whilst armed with offensive weapons and (2) wounding him at or immediately before the time of the robbery. The other five accused persons were acquitted and discharged but the appellants were convicted and sentenced to death on both counts under the provisions of the Decree. Each appealed against his conviction and sentence.

Learned counsel for the appellants having abandoned his original ground 2 and grounds 3 and 4 of his additional grounds of appeal, argued the following grounds-

“1. The Tribunal erred in law in not making a finding about the age of the 1st appellant although there was evidence that his age was 15 years, and thereby failed to apply the provisions of the Children and Young Persons Act and Section 368 of the Criminal Procedure Act.”

“2. The Tribunal erred in law when it failed to consider the defence of alibi raised by both 1st and 2nd appellants.”

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“5. The Tribunal erred in law when it failed to make a specific finding on the time element between the first alleged assault by 1st and 2nd appellants (which was disbelieved), and the alleged attack on P. W. 3 when there was abundant evidence of overlap and this failure came to the wrong conclusion”.

“6. That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence”.

In their written judgment, the tribunal said –

“As to the incident, the members are satisfied that some thieves blocked the road on the night in question with intent to rob people and that this Sylvanus Mbama was robbed of his motor-cycle No. ECL 2421 on the 4/4/74 and the 1st and 2nd accused took part in the robbery. They were recognised by this Mbama on the night in question by the aid of the bright moonlight and by the aid of the light of his motor cycle and during the identification parade”.

In relying on the evidence of identity given by Sylvanus Mbama, a teacher and headmaster, in convicting the two appellants, the tribunal stated further that they had considered his evidence and his demeanour in the witness box and were satisfied that he recognized the 1st and 2nd accused on the night in question. The members said that they came to this conclusion after taking into account that the complainant Sylvanus Mbama also identified the 1st and 2nd accused during the identification parade made up of 15 persons. We are satisfied that these findings of the tribunal are amply supported by the evidence adduced at the trial and we found no substance or merit in the submissions of learned counsel for the appellant in respect of grounds 2, 5 and 6 and indicated at the hearing of the appeal that we found it unnecessary to call on learned counsel for the respondent in respect of these grounds.

However, in regard to the defence of alibi (ground 2) raised by each of the two appellants, who denied committing the offences, the 1st appellant testified that at the material time of the incident, he was at home. The 5th accused at the trial, Odidika Ikeagbajogu (father of the 1st appellant) who was acquitted and discharged said while under cross examination, for the first time, that the 1st appellant was in his house, on the date this incident happened. The 2nd appellant, also for the first time while under cross-examination, stated that on the night of the incident, he was sleeping in his house. He did not call any witness to support his alibi. The Supreme Court has held time and again that, on the defence of alibi, the law is that evidence of the alibi should not be disregarded by a trial court unless there is stronger evidence against it and that, while the onus is on the prosecution to prove the charge against an accused person, the latter has the duty of bringing the evidence on which he relies for his defence of alibi. See Yanor & Anor v. The State (1965) NMLR 337; Nwosisi v. The State (1976) 6 S.C. 109. Having regard to the ample evidence and reasoned findings of the tribunal in regard to the issues of identity of the 1st and 2nd appellants and their participation in the offences of which they were convicted, we hold that there is no substance or merit in the submissions of learned counsel for the appellants in regard to the defence of alibi raised by each of the two appellants and this ground of appeal therefore fails.

The appellants also testified that the 4th prosecution witness, Clement Emerole, bore them malice because of a dispute between him and members of their family about the ownership of an Iroko tree which led to a case in court. The tribunal, after fully considering this issue, rightly in our view, rejected this defence in arriving at their verdict.