Abubakar Mohammed V The State (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant was arraigned with two others on a 6 count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 5 (b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments) ETC Act 1999. They all pleaded not guilty to the charge. The prosecution called 10 witnesses and tendered some exhibits. The witnesses were cross-examined. Each of the accused gave evidence in his own defence. The learned trial Judge convicted and sentenced the 1st and 2nd accused to death. The 3rd accused was discharged and acquitted.

The 1st accused (now appellant) appealed to the Court of Appeal Ibadan which dismissed the appeal. However the sentence of death for the offence of armed robbery was altered to robbery without firearms and the appellant was sentenced to 21 years imprisonment. Judgment was delivered on 16/6/2011. The appellant was still not satisfied and appealed against the conviction and sentence in the Notice of Appeal which was filed on 12/7/2011 containing 8 grounds of appeal from which learned counsel representing the appellant formulated the following five issues:-

1. Whether non compliance by police investigations with the time frame prescribed under Section 12(5) of the Robbery and Firearms (Special Provisions) Act (as amended) rendered the information upon which the appellant was tried null and void, irrespective of the exemption in Section 12(6) thereof
2. Whether the trial of the appellant by information filed by the Attorney-General of Ogun State without the fiat of the Attorney-General of the Federation rendered the trial a nullity, irrespective of provisions of Section 9(2) of the Robbery and Firearms (Special Provisions) Act (as amended)
3. Whether the arraignment of the appellant and consequently the entire proceedings of the trial court was not a nullity for non-compliance with Section 215 of the Criminal Procedure Law of Osun State
4. Whether the appellant ought not to be availed of the defence of alibi given the totality of evidence adduced at the trial
5. Whether the prosecution proved its case against the appellant beyond reasonable doubt

The respondent adopted the issues framed in the appellant’s brief.

Issue 1

The appellant submitted that he was convicted under Section 12(5) of the Robbery and Firearms (Special Provisions) Act which sets out a time frame within which police investigation must be concluded from the date of arrest. He contended that failure to comply with this time frame rendered the information upon which he was tried a nullity and subsection (6) will not save the information.

It was submitted on behalf of the respondent that it was practically impossible to conclude police investigations within 7 days as stipulated in Section 12(5) of the Act and it is in realization of this fact that the section has been made subject to Section 12 (6) so that failure to conclude police investigation within the limited time will not affect the validity of the prosecution.

Section 12(5) & (6) of the Robbery and Firearms (Special Provisions) Act provides as follows:-

“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 that seven days after the arrest of the offender and the file containing particulars of such investigation shall be sent to the Attorney-General of the State concerned or, where there is no Attorney-General, to the Solicitor-General of the State, not later than seven days after the conclusion of the investigation.

(6) Failure to comply with any of the provisions of subsection (5) of this section and of Sections 8(3) and 9 of this Act shall not affect the validity of any prosecutions under this Act.”

The evidence by Mrs. Alaba George (PW1) who was a victim of the robbery showed that the appellant and 2nd accused were arrested by 5a.m. on 15/2/1999 the date of the robbery and at the scene but they were not arraigned until 15/5/2002, three years after the offence was committed. The 9th prosecution witness, Sgt. Isaac Udoku stated that the case was transferred with the exhibits from Sango Ota Police Station to the Anti-Robbery Section of the State C.I.D. Abeokuta on 17/2/99 which is just two days after the appellant was apprehended. Also PW10, Onyeagoro Ebere, S.P. who was in-charge, Anti-Robbery Section Eleweran said the appellant was taken to him on 17/2/99 where he endorsed the statement of the appellant when he found that the statement was a confessional one. The issue for the delay in arraigning the appellant and the other accused was not raised during the trial.

Section 12(5) was put into the Act to ensure that investigation of accused persons who are apprehended during robbery operations is completed within a short time and there is no delay in their trial. Although Section 36(1) of the Constitution grants the right to fair hearing within a reasonable time to a person standing trial for an offence, where any delay is occasioned during investigation before he is arraigned for trial, this will not invalidate the trial as clearly spelt out in Section 12(6) of the Act. What the Constitution provides under Section 35(4) (a) is to arraign him within two months. The appellant’s remedy for the long incarceration without trial is the enforcement of his fundamental right to personal liberty. In the instant case the appellant was finally tried and convicted and would be entitled to enforce the right if his appeal succeeds.

Issue 2

Learned counsel for the appellant submitted that the powers of the Federal Attorney General and that of the State have been clearly spelt out in Sections 174(2) and 211(2) respectively of the 1999 Constitution on the commencement of criminal proceedings and these constitutional powers cannot be reduced or limited by statute. Consequently without the Attorney General of the Federation issuing a fiat to the Attorney-General of Ogun State, the latter cannot exercise any powers contained in Section 9(2) of the Tribunal (Certain Consequential Amendment, Etc) Act 1999 to file information against the appellant for a federal offence. He argued that if the statute is invoked to allow the Attorney-General of Ogun State to file the information and prosecute federal offences without the fiat of the Attorney-General of the Federation this will contravene the principle of the supremacy of the Constitution.