Kamorun Alimi Adios V. The State (1986)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The appellant was charged before the High Court of Ogun State, sitting at Ilaro, with the offence of armed robbery punishable under S.1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.

He pleaded not guilty to the charge. However, at the conclusion of his trial, he was, on the 30th day of March, 1984, found guilty as charged, and sentenced to death. His appeal to the Court of Appeal was dismissed. He has further appealed to this Court.

Originally only one ground of appeal was filed, but subsequently leave was granted to the appellant to file six additional grounds.

In the brief of argument filed by Chief Akande for the appellant, issues for determination in this appeal were formulated as follows:-

“(i) The issue for determination in the appeal as formulated in the grounds of appeal concerns the question. (1) whether any irregularity occurred, in the course of trial, as to render that trial a nullity, having regard to section 12 of the Robbery and Fire Arms (Special Provisions) Decree 1984, and section 1(4) of the Robbery and Fire Arms (Special Provisions) Amendment) Decree, 1984.

(ii) If the answer to (1) above is in the negative, the issue would then arise as to whether, such non-direction or mis-direction on the defence of Alibi, sufficiency or propriety or otherwise of the proof of identification, as elicited in the Record of proceedings, would vitiate the case for the prosecution, or

(iii) Whether the prosecution had proved their case against the accused (sic) beyond reasonable doubt, as required by law, or were the instances or particulars of misdirection, such as to warrant the inference or conclusion that, there was mis-trial and thereby entitling the appellant to a retrial or a verdict of acquittal. (sic)”

On the question of jurisdiction which was raised in the first additional ground, Chief Akande submitted that by section 12 of Decree No.5 of 1984, the provisions of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 had been repealed, and, consequently, all such cases that were pending before the High Court were to be transferred to the Tribunal. It was his contention that by virtue of Section 1(4) of the Robbery and Firearms (Special Provisions) (Amendment) Decree No.21, the High Court of Ogun State had no jurisdiction to try the appellant when it did. The trial of the appellant was therefore a nullity.

Now, section, 1(4) of Decree No: 21, which Chief Akande claimed ousted the jurisdiction of the High Court reads as follows:-

1(4) Notwithstanding anything to the contrary in any enactment including any rule of law, where proceedings, other than proceedings to which subsection (2) of this section relates, are pending before the High Court of a State; the Judge of that Court shall, on the date of the commencement of this Decree forthwith and without any further assurance, transfer or cause to be transferred such proceedings to the appropriate tribunal and upon such transfer, the proceedings shall be deemed to have been filed in accordance with the provisions of this Decree.”

Now the underlined portion of the subsection makes it clear that the proceedings to which subsection (2) relates are exempted from the provisions of S.1(4) of the Decree. Those proceedings are part-heard matters pending before any High Court on the date when the Decree came into force, and which proceedings “shall be continued and completed as if the provisions of this Decree had never been made.” Decree No. 21 came into force on 31st December 1983. The record shows that the plea of the appellant was taken on 5th December, 1983. It is therefore clear that as at the commencement of Decree No. 21, the case of the appellant was a part-heard matter before the High Court which Court, by virtue of the provisions of section 1(2) of the Decree, had jurisdiction to continue to hear it as if the Decree had never been made. This ground of appeal therefore fails.

The complaint in the additional ground five of the grounds of appeal was that the defence of alibi put up by the appellant was never investigated by the police.

It is a well established principle of law that once an alibi has been raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. See Adedeji v. The State (1971) 1 All N.L.R. 75.