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.
Learned counsel submitted that the evidence of P.W.1 which was not challenged proved the identity of the appellant as the offender and that identification parade was totally unnecessary. He cited the cases of Segun Balogun v. Attorney-General Ogun State (2002) FWLR (Pt.1000) 1287 at 1301; William v.The State (1992) 8 NWLR (Pt.261)515.
Learned counsel submitted that the concurrent findings of trial court and the court below on the identity of the appellant not perverse as they were supported by evidence on the record. He urged the court not to disturb such findings. He cited Sobakin v. The State (1981) 5 SC 75; Moses Jua v. The State (2010) 4 NWLR (Pt.1184) 217 at 260; Attorney-General Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (Pt.1011) 378.
It is now firmly established that the essential ingredients of the offence of robbery as stated in the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows:-
“(a) That there was a robbery or series of robbery.
(b) That each robbery was an armed robbery.
(c.) That the accused was one of those who robbed.
For the above stated ingredients of the offence of robbery, see as well Bozin v. The State (supra) at 469, Alabi v. The State (supra) at 523 and Awosika & Anr. v. The State (supra) at page 71.
The issue relating to identification of the appellant by P.W.1, the victim was strenuously canvassed by the learned counsel for the appellant. In most cases of robbery proper identification of the real culprit is very vital. Identification evidence is that which tends to show that the person charged is the same person seen at the locus criminis. See: Sunday Ndidi v. The State (2007) All FWLR (Pt. 381) 1617; Archibong v. The state (2006) 14 NWLR (Pt.1000) 349.
Learned counsel for the appellant seriously contended that an identification parade ought to have been conducted. Usually, there must be real doubt as to who was seen in connection with the offence to require an identification parade. See: Ogoala v. The State (1991) 2 NWLR (Pt.175) 509.
P.W.1 of the offence charged was the only eye witness in this matter. The trial judge believed his testimony and considered him as ‘a witness of truth in words and demeanour’. The witness stated how he bargained and agreed to carry the appellant and the appellant sat in front of the car with him. The appellant asked him to stop in the bush and an argument ensued. When P.W.1 refused to stop, the appellant brought out a gun and pointed it at him. He stopped and the appellant pushed him out; asked him to run into the bush and drove his vehicle away. P.W.1 said he saw he face of the appellant. As the time was around 6.00 pm, he could recognize him very well. P.W.1’s evidence established clearly that appellant committed robbery through extortion.
With the above scenario, it is clear that the findings of the trial court and the court below on the identity of the appellant as the culprit cannot be faulted. P.W.1 recognized him as such. There was no need for the staging of a farcical identification parade in the prevailing circumstance. The concurrent findings of the two courts below are rooted in credible evidence on record and they are not perverse. This court does not make a habit of disturbing such findings. See: Sobakin v. The State (supra); Moses Jua v. The State (supra) at page 260.
I have no hesitation in resolving issue (i) against the appellant and in favour of the respondent. Issue (ii) is whether the learned justices of the Court of Appeal misdirected themselves in 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 issue relates to the plea of alibi put up by appellant. Learned counsel for the appellant felt that client gave sufficient particularization of his whereabouts on the crucial date of the offence charged in establishing his alibi. Learned counsel cited the case of Udoebre v. The State (2001) 5 M.J.S.C. 146 at 156. He urged that the affirmation of the conviction of the appellant by the court below, being erroneous on point of law, should be set aside.
Learned counsel for the respondent on this issue submitted that where an alibi has been raised and there is a visual and positive identification of the accused which is believed by the trial court, the appellate court should not disturb such a finding. He felt that where there is more credible evidence fixing the accused person with the commission of the crime, the defencc of alibi will not avail him. Learned counsel cited the cases of Okon Udo Akpan v. The State (1991) 5 SCNJ 1; Samnel Attah v. The State (2010) 10 NWLR (Pt.1201) 190 at 217; Patrick Njovens & Ors. v The State (1973) All NLR 371 at 401 – 402.
Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yonor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113, Gachi v. The State (1973) 1 NWLR 331; and Odu & Anr v. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668.
In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:-
“There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.”
I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution But in a case like this one where the appellant was identified by P.W.1 without any equivocation, a straight issue of credibility arose. I am unable to say that the learned trial judge’s findings of fact which were backed by the court below were unreasonable or not supported by the evidence on record. If the alibi had been true, it would have been open to and incumbent on the appellant to call his brother, Kingsley to support his plea of alibi. This is more so since P.W.2 stated in her evidence to the hearing of the appellant that “I discovered that the accused went to the house of Kingsley at 8.00p.m and the alleged crime took place around 6.30p.m”. The appellant had the duty to call evidence in proof of where he was around 6.30p.m – the material time on the fateful day.
In short, the trial court and the court below rightly found that the evidence of P.W.1 and P.W.2 was credible and fixed the appellant with the commission of the offence charged. The findings of the two courts below in this respect are also concurrent. This court will not disturb same since they are supported by evidence on record and not perverse. See: Nkebisi & Anr. v. The State (2010) 5 NWLR (Pt.1188) 471; Dogo & Ors. v. The State (2001) 1 SCNJ 315.
The appellant felt that the case against him was not proved beyond reasonable doubt. I shall again state it that proof beyond reasonable doubt as evolved by Lord Sankey, L. C. in Woolmington v. DPP (1935) AC 485 is not proof to the hilt’ as stated by Denning, J., as he then was, in Miller v. Minister of pensions (1947) 3 All ER 373. It is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru v’ The State (1999) 2 NWLR (Pt.589) 87 at 98. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise, it will cleave.
In short, issue (ii) is also resolved against the appellant and in favour of the respondent.
In conclusion, I find that this appeal lacks merit. It is hereby dismissed. The judgment of the court below delivered on 18th February, 2010 which affirmed the conviction and sentence handed down by the trial court on 24th January, 2008 is hereby confirmed.
SC.197/2010