Fabian Nwaturuocha V The State (2011)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division (hereafter referred to as ‘the court below’) delivered on 18th February, 2010 which upheld the decision of Bello, J. of the High court of Justice, Abuja Federal Capital Territory delivered on 24th January, 2008. It is apt to note it here that the trial judge convicted and sentenced the appellant to 11 years imprisonment and a fine of N250,000:00 as mandated by the applicable law for the offence of robbery punishable under section 298 of the Penal Code.

At the trial court, the appellant was arraigned for the offence of robbery. The respondent maintained that the appellant robbed one Taye Musa (P.W.1) a driver of his commercial vehicle, Toyota Starlet car with Registration No. AA 4445 ABJ at gun point around 6.30 pm on 22nd October, 2004. On 15/6/05 when the charge was read to the appellant, he pleaded not guilty. The prosecution called two witnesses to substantiate their case. Thereafter, the appellant testified in his own defence and called two other witnesses. In the judgment delivered on 24th January, 2008, the learned trial Judge convicted the appellant and sentenced him as stated above.

The appellant felt unhappy with the stance of the trial judge and appealed to the court below which heard the appeal and found same to be unmeritorious in its own judgment handed out on 18th February, 2010. It dismissed the appeal and affirmed the judgment of the trial judge.

The appellant still felt aggrieved and has decided to appeal to this court. Briefs of argument were duly filed and exchanged by the parties. On 16th of December, 2010 when this appeal was heard, each counsel adopted and relied on the brief of argument filed on behalf of his client.

Two (2) issues formulated for the due determination of the appeal on page 2 of the appellant’s brief of argument read as follows:-

“(i) Whether the prosecution proved the case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the appellant by the Court of Appeal.

(ii) Whether the learned Justices of the Court Appeal misdirected themselves on their evaluation of the evidence with which they found that the appellant did not give a detailed particularization of his whereabouts on the crucial day of the offence, which misdirection in turn, led to a miscarriage of justice to the appellant.”

The above reproduced two issues were adopted by the respondent. I am of the considered view that such a stance is commendable.

Arguing issue (i), learned counsel for the appellant stated the ingredients of the offence of robbery vide the provision of section 296 of the Penal code. He submitted that it is an immutable principle of law that the prosecution must establish the guilt of an accused person beyond reasonable doubt in a criminal case. He asserted that such a duty remains static until discharged by the prosecution. He referred to the case of Ogidi v. The State (2005) 5 M.J.S.C. 155 at 173 – 174.

Learned counsel opined that the critical question begging for an answer is whether the evidence of P.W.1 regarding the recognition of the appellant as the person who robbed him of the commercial car has the potency superimposed on it by both the trial court and the court below. He felt that an identification parade was essential and required in the prevailing circumstance. He cited the cases of Ani v. The State (2009) 6 M.J.J.S.C (Pt.11) 1 at 8; Almu v. The State (2009) 4 M.J.S.C (Pt.11) 147 at 163; Balogun v. Attorney-General Ogun State (2002) 4 M.J.S.C. 45 at 58; R v. Turnbull (1976) 3 Att ER 549 at 552; Ukpabi v. The State (2004) 9 M.J.S.C. 120.

Learned counsel urged the court to find in favour of the appellant by holding that the affirmation of the conviction and sentence of the appellant by the court below is an error of law which led to a miscarriage of justice to the appellant.

On issue (i),learned counsel for the respondent submitted that for the prosecution to secure conviction for the offence charged herein, it must prove that there was robbery; that the robbers were armed and that the appellant was the robber or among the robbers. He cited the cases of Bozin v.The State (1985) 2 NWLR (Pt. 8) 465 at 469, Alabi v. The State (1993) 7 NWLR(Pt. 307)511 at 523; Awosika & Anr.v.The State (2010) 9 NWLR (Pt.1198)49 at 71.

Learned counsel observed that it is not in dispute that there was robbery on 22nd October, 2004 along Usman Dan / Bwari Road, Abuja and that same was accompanied with a dangerous weapon – a gun as discernible from the evidence of the two prosecution witnesses. He felt that the dispute relates to whether the appellant participated in the robbery. Learned counsel maintained that the real question is whether P.W.1 properly and sufficiently recognized the appellant as the person who robbed him of his Toyota Starlet car with Registration No. AA 445 ABJ.