Lateef Saka V. The State (1981)

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IRIKEFE, J.S.C.

After hearing counsel for the parties in this matter, we allowed the appeal, set aside the conviction recorded against the appellant in the court of trial which had been upheld by the Court of Appeal and substituted therefore a verdict of acquittal. We indicated then, that we would give our reasons for doing so at a later date, and this we now do.

The appellant and one other person who was discharged at the end of the prosecution’s case were charged before the Lagos State Robbery and Fire-arm Tribunal with robbery, punishable under Section 1 (2) (b) of the Robbery and Fire-arm (Special Provisions) Decree, 1970 as amended by Decree No. 48 of 1971 and Decree No. 29 of 1974. Upon conviction, the offence carried a peremptory sentence of death by firing squad.

The facts in this case are not in dispute. They run as follows: At about 10 p.m. on the night of 17th May, 1974, one Sunday Kolawole (4th P.W.) the driver of a taxi-cab No. LSA 7907, a Toyota Corolla was hailed to stop along Ikorodu Road, Lagos, by three men standing at the side of the road. One of the men was dressed in military uniform while two were in civilian attire. The man in military uniform carried a rifle. The men asked Kolawole for a lift to a point near mile 12 on the Lagos-Ikorodu road where they alleged that their vehicle had broken down.

Kolawole agreed to do this and while one of the men in civilian dress sat with him at the front, the other two sat at the rear. On arrival at Ketu (mile 12), Kolawole stopped to enable the men get off the vehicle but they pleaded with him that their vehicle was still a little way ahead. He then moved on, and not long after, the man sitting by his side pleaded with Kolawole to stop to enable him answer the call of nature. As he did so, one of the men ejected him from the car, gripped him by the neck while another tried to stab him in the stomach.

He dodged the stab on the stomach but was injured on the right eye-brow and the back of the head. Kolawole managed to escape from his assailants who then drove his vehicle away. The stolen vehicle though being plied for hire by Kolawole was owned by one Taiwo Adebanjo (P.W.3). Much later that night, at about 4 a.m. on 18th May, 1974, P.W.9 Police Constable Felix Adebayo Akerele while on his way to report for duty saw 4 men engrossed in conversation standing beside a Toyota-Corolla car without identification number plates parked by the side of the road. His suspicion being aroused, Akerele challenged the men, two of whom turned out to be the appellant and the man who was discharged. Akerele called for the production of the vehicle papers but was told they were with one Alhaji Audu. He then asked to be taken to the said Audu.

Audu on being confronted offered money to Akerele which the latter refused to accept, and it was while this discussion was going on that the appellant bolted away. Akerele eventually succeeded in taking the vehicle and the man discharged at the trial to the police station. At dawn on the following day, P.W.4, Sunday Kolawole who in the meantime had received medical attention for his injuries, came to the police station and had no difficulty in identifying the vehicle impounded there by P.W.9, Akerele, as the one stolen from him the previous night. Later still, the appellant was arrested by the police with the aid of the man who was discharged at the trial and at an identification parade, Kolawole was able to identify the appellant as the man in military attire armed with a rifle who had halted him on that fateful journey to ketu on the night his vehicle was forcibly removed from him.

Neither the appellant nor indeed the man who was discharged had legal representation at any stage of the trial. The appellant gave evidence in his own defence and called no witnesses. His defence was a denial and an alibi. The tribunal appraised the totality of the evidence and understandably took the view that the appellant had been found in possession of the car soon after the robbery and his alibi destroyed by the prosecution and convicted him as charged. The appellant’s appeal to the Court of Appeal on grounds of law and facts was dismissed and hence this final appeal to this court.On the facts found by the tribunal, I am in no doubt that, the tribunal’s conclusions thereon could not be said to be unreasonable. The issue of law canvassed before the Court of Appeal was however, not free from difficulty. That court said so in so many words per Nnaemeka-Agu, JCA., thus:- “By far the most important and, perhaps, the most difficult, ground of appeal urged in favour of the appellant was ground 1 of the substituted grounds: That the tribunal did not comply with the provisions of Section 287 (1) (a) (i)-(iii) of the Criminal Procedure Law. Alhaji Olugbani, Legal Adviser for the State conceded it, rightly in my view- that the section was not complied with. He further conceded it that the Criminal Procedure Law applies in the case by reason of the Robbery and Firearms Tribunal (Procedure) Rules published as LN. 56 of 1975.”

The short issue of law raised by this appeal was whether the non-compliance by the Tribunal (which was not disputed) with the provisions of Section 287(1) (a) (i)-(iii) of the Criminal Procedure Law was fatal to the conviction in this case, in view of the fact that the court failed to assign counsel to defend the appellant. For the appellant, it was submitted that the non-compliance disclosed in this case went beyond a mere irregularity in regard to which the proviso to Section 26(1) of the Supreme Court Act (No. 12 of 1960) would apply. This proviso reads:- “Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” It was this proviso which was re-enacted in Section 20(1) of the Federal Court of Appeal Act (then Decree No. 43 of 1976), that the Court of Appeal relied upon in dismissing the appeal.

Section 287(1) (a) (i)-(iii) with which this appeal is concerned provides:-

“(1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and –

(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely:-

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination; or