Fatai Olayinka V. State (2007)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

At the High Court of Lagos State, the appellant was tried and convicted on a three count charge of armed robbery under section 402(2)(a) of the Criminal Code Law of Lagos State and was sentenced to death by firing squad or by hanging. The judgment of the High Court was on the 26th of July 1985. The trial Judge was Honourable Justice I. O. Agoro. The offence was alleged to have been committed on the 14th of November, 1981.

Dissatisfied, the appellant appealed to the Court of Appeal. By its judgment of the 28th November, 2003, the appeal was dismissed. He has come on further appeal to this court. The parties, through their counsel, have filed and exchanged their briefs of argument. The appellant’s brief was prepared by Norrison I. Quakers of Olisa Agbakoba & Associates. That of the respondent was prepared by Mrs. Olaide Olayinka, Solicitor-General Lagos State. In the appellant’s brief of argument four issues were formulated for determination. Five issues were raised in the respondent’s brief: For reasons which I shall state hereinafter, I shall reproduce only the 1st issue of the appellant. The said issue is:

“Whether it was right for the Court of Appeal to uphold the judgment of the trial court convicting and sentencing the appellant to death by hanging for the offence of armed robbery in view of the nature and quality of evidence adduced by the prosecution, the procedural irregularities and the apparent infraction of the appellant’s Constitutional rights”

The respondent’s issue one is, in substance, to the same effect as that of the appellant.On the first issue the substance of the arguments of Norrison I. Quakers in the appellant’s brief are as follows:

The first submission is that to sustain a conviction of the under section 402(2)(a) of the Criminal Code Law of Lagos State, the prosecution had a duty of tendering the offensive weapons allegedly used in the robbery and that the failure so to do casts a doubt on the guilt of the appellant and which doubt, he contended, ought to be resolved in favour of the appellant. For this argument he relied on Alabi v. The State (1993) 7 NWLR (Pt. 307) 511: Martins v. State (1997) 1 NWLR (Pt. 481) 355.

Next is the prosecution’s failure to call two witnesses. The victims of the alleged robbery are stated to be Sunday Imosemi C (PW3), Mr. Henry Masha and Mrs. Agnes Masha. It was the submission of learned counsel that the prosecution and the trial court relied solely on the uncorroborated evidence of the PW3 and the failure to call the said Mr. Masha and Mrs. Masha was grave and fatal to the prosecution’s case. In support of this submission he cited Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 at 141: Chukwu v. State (1996) 7 NWLR (Pt. 163) 686 at 689: Nwosisi v. State (1976) 6 SC 109; Asemakaha v. State (1965) NMLR 317.Another complaint of the appellant is in the area of contradictions in the prosecution’s case. Learned counsel for the appellant submitted that there existed such contradictions in the case of the prosecution as rendered it doubtful and which doubts, he argued, ought to be resolved in favour of the appellant. For this submission he relied on Khaleel v. State (1997) 8 NWLR (Pt. 516) 237 at 247. He gave particulars and details of these contradictions in paragraph 4.03 – 4.04 of the appellant’s brief. These are contradictions as to the date of the commission of the offence. The weapons found on the appellant at the time of the alleged offence and the place of the arrest of the appellant. Still on contradictions and consequences, learned counsel referred to State v. Danjuma (1997) 5 NWLR (Pt. 506) 5 12 at 528-529: Gira v. State (1996) 4 NWLR (Pt. 443) 375 at 382; Onubogu v.State (1974) 9 SC I: and Ibeh v. State (1997) 1 NWLR (Pt. 484) 632 at 649. Learned counsel for the appellant further contended that the voluntariness or otherwise of the confessional statement was not examined by the trial court and submitted that the statement was, for that reason, inadmissible and conviction founded on it unjustifiable. He cited Okeke v. State (1995) 4 NWLR (Pt. 392) 676 at 683: Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383.

Learned counsel for the appellant asserted that the appellant raised the defence of alibi and which ought to have been investigated. It was submitted that the failure to investigate same was fatal to the prosecution’s case. Reliance was placed on Iortim v. State (1997) 2 NWLR (Pt.490) 7 11 at 731.

Appellant also alleged fundamental procedural irregularities in the arraignment of the appellant which irregularities, he submitted rendered the trial null and void. Counsel argued that the appellant’s arraignment recorded at page 18 of the record violates the provisions of section 33(6)(a) of the 1979 Constitution and section 36(6)(a) of the 1999 Constitution and section 2 I 5 of the Criminal Procedure Act. Counsel gave details of what he described as the non-compliance and cited Kajubo v. State (1988) 1 NWLR (Pt. 73) 721; and Erekanure v State (1993) 5 NWLR (Pt. 294) 385. It was submitted that the four conditions of a proper arraignment laid down in Kajubo and Erekanure were not complied with.

The appellant next raised the issue of proper identification. It was argued that from the circumstances of the case an identification parade ought to have been conducted and that the failure to so conduct the parade leaves the evidential burden of proof beyond reasonable doubt undischarged. In support of this submission, Okeke v. State (1995) 4 NWLR (Pt. 392) 676 at 688; Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; Alabi v. State (1993) 7 NWLR (Pt. 307) 511; Chukwu v. State (1996) 7 NWLR (Pt. 163) 686 at 690; Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Okosi v. State (1989) 1 NWLR (Pt. 100) 642; and Adamu v. State (1986) 3 NWLR (Pt. 32) 865 were cited.On this first issue the learned Solicitor-General of Lagos State, Mrs. Olaide Olayinka submitted that all the three ingredients of proof under section 402(2)(a) of the Criminal Code Law of Lagos State as laid down in Bozin v. State (supra) were established. There was no requirement that the offensive weapons used in the alleged robbery must be tendered, she argued. With respect to the failure of the prosecution to call the husband and wife victims of the alleged robbery, she argued that the prosecution was not bound to call every witness and that the failure to call those husband and wife was not fatal to the prosecution’s case and that the evidence of the single witness since believed by the trial court was enough to justify the conviction. For these submissions she relied on Oforlete v. State (2000) 7 SC (Pt. 1) 80 at 83; (2000) 12 NWLR (Pt. 681) 415: Ihemegbulam Onyegbu v. State (1995) 4 NWLR (Pt. 391) 510: Alonge v. Inspector General of Police (1959) 4 FSC: (1959) SCNLR 516.

With respect to contradictions it was argued that there were no such material contradictions as to the date of the commission of the alleged offence, the weapons found on the appellant at the time of his arrest and the place of his arrest as to affect the probative value of the prosecution’s case.

As regards the confessional statement exhibit ‘A’ the learned Solicitor-General referred to the opinion of the court below at page 224 of the record and its rejection and submitted that the trial court rightly relied on other evidence apart from exhibit “A” to sustain the conviction.

As respects the alibi raised, it was the submission of the learned Solicitor-General for it to be investigated, the appellant ought to have raised it at the earliest opportunity available to him and that it was too late in the day to raise it during the trial. For this submission he relied on Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; and Onyegbu v. State (1995) 4 NWLR (Pt. 391) 510.

Let me now consider the arguments which substance I have set down above. With respect to the submission of the appellant about the failure of the prosecution to tender the weapons of the alleged robbery and its effect on the prosecution I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Martins v. State (supra) and Alabi v. State (supra) cited by the appellant in support of the submission did not lay down or restate any such principle.