Fabian Nwaturuocha Vs The State (1990)

LawGlobal-Hub Lead Judgment Report

C. M. CHUKWUMA-ENEH, JSC – I have had the advantage of reading before now the lead judgment prepared and delivered by my learned brother Fabiyi JSC in this matter. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I endorse the orders contained therein. C. NI. CHUKWUMA-ENEH, JUSTICE, SUPREME COURT

|JUDGMENT|(Delivered by BODE RHODES-VIVOUR JSC)|I read in draft the judgment delivered by my learned brother, Fabiyi JSC. I agree with his lordships reasons and conclusion that the appeal lacks merit. The charge against the appellant before trial court read as follows:|”That you Fabian Nwaturwocha on or about the 22nd day of October, 2004 and also on or about the 28th day of October, 2004 along Usman Dan Bwari Road, Abuja, within the jurisdiction of this Honourable Court robbed at gun point Taye Musa and Temihan Benga of a Toyota starlet Car with Registration Number AA445 ABJ and a Mazda Car with Registration Number 516 RBG respectively and thereby committed an offence punishable under Section 298 of the Penal Code.|To succeed the prosecution must prove the following:|

|1. That there was an armed Robbery,|2. That the accused/appellant was armed,|3. That the accused/appellant, while armed participated in the Robbery.|See Alabi v State 1993 &NWLR pt.301 p.115|The standard required is proof beyond reasonable doubt. See Section 138 (1) of the Evidence Act. Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.

This court will not interfere with concurrent findings of the trial court and the Court of Appeal on issues of fact except where the findings are perverse, or there is established a miscarriage of justice or a violation of principles of low or procedure. See Igwego v. Ezengo 1992 6NWLR pt.249 p.561|Enang v. Adu 1981 11 -12 SC p.25.|In my view the trial court carefully considered and evaluated the evidence in the case and have come to the|JUDGMENT|(Delivered by Olufunlola Oyelola Adekeye, JSC)|PAGE| 9|I had read before now the judgment just delivered by my brother J.A. Fabiyi, JSC.

I agree with his reasoning and conclusion that this appeal lacks merit. The appellant, Fabian Nwaturuocha was arraigned before the High Court of the Federal Capital Territory, Abuja for armed robbery punishable under Section 298 of the Penal Code.|The particular of the offence reads as follows: -|”That you Fabian Nwaturuocha on or about the 22nd day of October 2004, along Us man Dam/Bwari Road, Abuja within the jurisdiction of this honourable court robbed at gun point Taye Musa and Temihan Benga of a Toyota Starlet Car with Registration Number M 445 ABJ and Mazda Car with Registration Number 516 RBC and thereby committed an offence punishable under Section 298 of the Penal Code.”

|At the hearing of the case before the trial court, the prosecution now respondent, called two witnesses, the driver who was robbed of the vehicle at gun point and the investigating police officer. The appellant gave evidence and raised the defence of alibi. The learned trial judge found him guilty of the charges. In convicting him, sentenced him to eleven years prison term and a fine of N250,000,000 in addition. The appellant registered his dissatisfaction with the judgment at the Court of Appeal, Abuja.

The lower court affirmed his conviction and sentence. He was still aggrieved by the decision of the lower court and that prompted him to appeal to this court.|The ingredients of the offence of Armed Robbery under Section 298 of the Penal Code are:|1. That the accused committed theft.|2. That he caused and attempted to cause some person|a. Death, hurt or wrongful restraint or|b. Fear of instant death or instant hurt or instant wrongful restraint|

3. That he did as above.|a. In committing theft or|b. In order to commit theft or|c. In carrying away or attempting to carry away the property obtained by the theft;||4. That he acted as in (b) above voluntarily or prove|i. That the accused committed exotortion|ii. That he was at the time of committing it in the presence of the person in fear of instant death or of instant hurt or of instant wrongful restraint|iii.That he committed it by putting that person or some other person in fear of instant death or of instant hurt or of instant wrongful restraint|iv.That he thereby induced the person to deliver up then and there the thing exorted.

|PAGE| 10|It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt.|Aigbadion v. State (2000) 4SC pt.1 pg.1|Agbe v. State (2006) 6 NWLR pt.977 pg. 545|Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990|Akinyemi v. State (1999) 6 NWLR pt.607 pg.449.|Alonge v. I.G.P. (1959) SCNLR pt.576.|

In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged.|Amadi v. The State (1993) 8 NWLR pt.314 pg.644 at pg.668.|Alor v. The State (1997) 4NWLR pt.501 pg.511.|The prosecution relied on the evidence of the victim of the incident, which was based on his proximity to the accused/appellant prior to the incident.

The appellant and the PW1 met at Dutse junction. The appellant needed a vehicle to convey him to Ushafa. They both bargained and he agreed to carry him. The appellant sat in front of the vehicle. He asked the PW1 to park as he wanted to ease himself in the course of the journey. When PW1 did not agree to stop immediately -the appellant brought out a gun to force him to stop.

At that spot where there was nobody and it was then dark. PW1 put the time at 6pm. The appellant opened the door of the car and pushed PW1 out of the car asking him to run into the nearby bush. Obviously the incident gave enough room to PW1 to identify the appellant. They were both together inside a car -and not that they were making contact from a distance to each other.|

In his defence of alibi -the appellant gave evidence that: -“|On the day the car was alleged snatched, I was with my brother throughout after I closed from the office after 6pm.” The appellant clearly raised the defence of alibi. Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else, at a place where most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.

|Sowemimo v. The State (2004) 11 NWLR pt.885 pg.515|Aiguorehian v. State (2004) 3 NWLR pt.860 pg.367|Onyegbu v. The State (1995) 4 NWLR pt.391 pg.510.|PAGE| 11|An accused must not raise the defence of alibi at large -he must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi.|Nsofor v. State (2002) 10NWLR pt.775 pg.274.|Balogun v. A-G Ogun State (2002) 6NWLR pt.763 pg.512.|PW2 investigated the alibi raised by the appellant and discovered that he went to the house of Kingsley his brother around 8pm -whereas the alleged crime took place around 6.30pm.

The appellant failed to account|There is overwhelming evidence from PW1 linking the appellant to the crime on the day of the incident -a formal identification parade is unnecessary in the circumstance of this case. The scenario is that in which PW1 can easily identify the appellant regardless of his evidence that it was already dark.|An identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances-|a.Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.

|b.Where the victim or witness was confronted by the offender for a very short time.|c.Where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused. None of the forgoing applies to this case as PW1 had ample opportunity to familiarise and later recognise the appellant.|Ukpabi v. State (2004) 11 NWLR pt.884 pg.439.

|Ebiri v. State (2004) 11 NWLR pt.885 pg.589|With fuller reasons given by my lord in the lead judgment, I also dismiss this appeal and affirm the conviction and sentence of the two lower courts.|Olufunola Oyelola Adekeye|Justice, Supreme Court|APPEARANCES:|R.O. Ahonaruogho Esq. for the Appellant.|D.C. Enwelum Esq., for the Respondent.|

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Other Citation: (1990) LCN/2428(SC)