Mufutau Aremu & Anor V. The State (1991)

LawGlobal-Hub Lead Judgment Report

P. K. NWOKEDI, J.S.C 

The appellants were charged before the Ikeja High Court in Lagos State, with the offence of armed robbery, contrary to section 402(2)(a) of the Criminal Code of Lagos State. The particulars of the offence show that, “on or about the 8th day of January, 1983, at Oshodi, in Ikeja Judicial Division, being armed with offensive weapons, to wit cutlass, robbed one Olayinka Ojikutu of his 504 Peugeot car with registration number LA 30 MA”.

The prosecution called five witnesses in proof of its case. Each appellant gave evidence in his defence but called no witness. The case for the prosecution was that on 8th January, 1983, at about 8.30p.m, the PW1 (Olayinka Ojikutu), the owner of the 504 Peugeot car Number LA 30 MA, and PW2 his passenger, were attacked by a gang of four persons, all armed with cutlasses, at a point along Oshodi/Apapa Expressway. The appellants were members of this gang. They surrounded the said car and smashed its windscreen.

As the PW1 tried to get out of the car, the second appellant gave him matchet cuts on various parts of his body. The PW1 and PW2 managed to escape from this vicious attack. Two of the assailants entered the vehicle of PW1 and made away with it. The other two made their escape in a get away taxi cab which they had used to partially block the road, thus compelling the PW1 to slow down at the scene of the crime. PW1 stated that he was able to identify the two appellants at the scene of the attack because the area was properly illuminated and he had the headlights of his car on.

PW2 also identified the appellants as the two that jumped into the car of the PW1 and then drove off. PW1 was taken to hospital by PW2. Both, later the same day, reported the incident at Oshodi Police Station. The following day, at about 9.00 a.m, at the border town of Idiroko, the stolen car and another, were halted by a Customs Officer for checking and identification. The route taken by the two cars was an unauthorized route to the Benin Republic. The first appellant was driving the stolen car. He was led by a taxi cab in which the second appellant was travelling. The two were together traveling to the Republic of Benin. The Customs Officer, who testified as PW4, demanded the particulars of the two vehicles.

The second accused alighted from the taxi cab and requested the customs Officer to allow them free passage as they were driving to Ifonyin market. As PW4 insisted on the particulars of the two vehicles, the second appellant produced the particulars of the Peugeot 504 with Registration LA 30 MA, driven by the first appellant. He could not produce the particulars of the Datsun taxi cab in which he was travelling. PW4 still demanded to see the particulars of the taxi cab. At this stage, the driver of the said taxi cab took off in his vehicle and escaped into the Republic of Benin. The first appellant tried to escape but was apprehended after a chase.

The appellants were arrested by PW4 and handed over to the Idiroko Customs office together with the vehicle Peugeot 504 No. LA 30 MA. The case was later transferred by the Idiroko Police to the Ikeja Police and then to the State C.I.D. On 9/1/83, the PW4 contacted the PWI and informed him of the recovery of his car. PW1 and PW2 travelled with PW4 to Idiroko, where PW1 identified his vehicle. PW1 claimed to have identified the appellants at the Ipokia hospital in Idiroko. PW2 claimed to have seen the appellants in the Police cell at Idiroko. At the State C.I.D, each appellant made a voluntary statement which was confessional. Each was taken before a superior Police Officer and each confirmed his statement was correctly recorded.

The two statements were admitted in evidence without any objection, as Exhibits A and B for the first and second appellants respectively. The statements were recorded by PW5, a Police Sergeant attached to the State C.I.D. Each statement gave a detailed account of the preparations for the robbery and the actual robbery itself, confirming substantially the evidence as to the manner and mode of the attack as testified by PW1 and PW2, and the arrest of the appellants at Idiroko as recounted by the PW4.

In their defence at the trial, each appellant gave evidence on oath and denied the charge. The first appellant stated that he was hired by one Alhaji, whom he did not know, to drive the Peugeot 504 car to Ifonyin Market, while the Alhaji himself would drive the taxi cab. They took off from Agege. The Alhaji led the way in a taxi cab and he followed, driving the said Peugeot car. When they were accosted by the PW4, the Alhaji gave the particulars of the taxi cab to the PW4. The Alhaji took from him the particulars of the Peugeot car and handed same over to the PW4. The Alhaji then entered the taxi cab and drove away, after some discussions with PW4. He denied making Exhibit A at the State C.I.D. He claimed that he made statements at the Idiroko Police Station and to a Customs official. The second appellant also denied the charge. His evidence was that he was a passenger in an Urvan bus travelling to Ifonyin market to make purchases.

He had alighted from the vehicle to ease himself. Before he had finished, the bus had departed. As he wanted to board another bus, Customs Officials arrested him because he had refused to give them some money. He also denied making Exhibit B and like his co-appellant, stated that he made a statement to the Police at Idiroko. Each appellant denied knowing the other, before their arrest at Idiroko. As to their movements on 8/1/83, the first appellant stated, under cross-examination, that he was in his home at about 6.45 p.m. The second appellant testified also in cross-examination stating “I went to work on 8/1/83 to paint a shop at Ketu and I came home immediately I finished the work.”

The learned trial Judge carefully considered the evidence led by the prosecution and the defence. He disregarded the evidence of the PW1 and PW2 on the identification of the appellants because the circumstances of the identification were in his view irregular. The usual identification parade he held, would have been employed in the case. Except for this, as already stated, he accepted the evidence led by the prosecution and rejected that of the defence.

He relied on the confessional statements of the appellants, Exhibits A and B, which he held corroborated the evidence of the PW4. He held that the appellants being found in possession of the vehicle within 12 hours of the same having been stolen, were presumed under section 148(a) of the Evidence Act, to be the thieves that stole the vehicle. The learned Judge found each appellant guilty as charged and sentenced each to death. Naturally dissatisfied with the conviction and sentence, the appellants appealed to the Court of Appeal. The issues set down for determination in the Court of Appeal by the appellants based on their five grounds of appeal were as follows:

“1. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death whilst relying upon irreconcilable and contradictory testimonies of the prosecution witnesses and when no explanation was offered by the prosecution for such material contradiction.   2. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death without first considering in detail the defence of Alibi set up by the appellants.   3. Whether the learned trial judge was right when he held that the second appellant was within the meaning and purport of section 148(a) of the Evidence Act in “recent possession” of the alleged stolen vehicle.   

4. Whether the learned trial Judge was right when he convicted and sentenced the appellants to death whilst relying on Exhibits “A” and “B” when in fact the whole of the purported confessional statements were never tendered in evidence by the prosecution.   5. Whether the learned trial Judge was right to have convicted the appellants of the offence of armed robbery when no offensive weapon not any medical card/report was tendered in evidence by the prosecution offered for their non-production”. The Respondent also set down the following issues for determination.

“(a) Whether there are any material contradictions in the evidence of the prosecution witnesses. (b) Whether the evidence of each appellant establish a defence of alibi. (c) Whether the second appellant was in possession of the stolen vehicle at the time of his arrest. (d) Whether the failure of the prosecution to tender the appellant’s statements to the police at Idiroko was fatal.” The Court of Appeal adopted the issues raised by the respondents as being more appropriate. The appeal was therefore considered on these issues.

On the first issue above, the Court of Appeal held that the alleged contradiction related to the evidence of the PW1 and PW2 on identification of the appellants. This the Court of Appeal held was correctly rejected by the learned trial Judge. Besides this however, the Court of Appeal was of the view that there was sufficient evidence to found the conviction. There was the evidence of the PW4 as to recent possession, and the statements of the appellants in which each confessed the crime.

In respect of the second issue, the Court of Appeal held that while it was correct to contend that the trial Court did not consider the defence of alibi, the lapse did not occasion a miscarriage of Justice. On the issue of recent possession the Court held that the doctrine of “recent possession” put on the first appellant the burden of dislodging the presumption under section 148(a) of the Evidence Act. In the case of the second  PAGE| 5 appellant, he admitted his presence at Idiroko, as a transit passenger.

The Court below was of the view that “his statement Exhibit B is a detailed account of the preparation for the robbery, the dramatis personae, the actual robbery and the journey to Idiroko the next morning. Exhibit B agreed in material particular with the evidence of PW4. Thus the conviction of the second appellant will depend upon whether or not Exhibit B was voluntary or not.” The learned trial Judge accepted the statement as voluntary, a finding confirmed by the lower Court. On the alleged statements made at Idiroko Police Station, the lower Court held as follows –    

“The statements in question were alleged to have been made at Idiroko, whereas Exhibits A and B were made at the State C.I.D. Yaba. Both were tendered by PW5. The appellants signed the statements which were later endorsed by ASP Akapo. PW5 was not cross-examined about the alleged statements made earlier at Idiroko. Indeed it was under cross-examination that each appellant claimed to have made a statement to the Police at Idiroko. It is these statements which are alleged to have been suppressed. It is difficult to hold this against the prosecution as the issue was not raised when PW5 testified.”

The trial Court rejected the Appellants’ evidence on this score, a finding confirmed by the Court of Appeal. The Court (F.O. Awogu J.C.A. delivering the lead judgment) held that it was satisfied that both appellants were rightly convicted of armed robbery as charged, dismissed the appeal and affirmed the conviction and sentence of each appellants by the trial Court. B. O. Babalakin and U. A. Kalgo, JJ.C.A. concurred with the said Judgment. Further dissatisfied, each appellant has appealed to this Court. Their notices of appeal were identical. The grounds of appeal filed, without their particulars, are as follows:-     “GROUND OF APPEAL

1. The learned Justices of the Court of Appeal erred in law when they convicted and sentenced the appellant to death in the face of material contradictions existing in the evidence of both PW1 and PW2, more particularly as regards the identity of the appellants and the circumstances surrounding his arrest. Moreso, when they held that the identification of the appellant was not reliable and thereby occasioned miscarriage of justice.

2. The learned Justices of the Court of Appeal erred in law when they convicted and sentenced the Appellant whereas no identification parade was even conducted nor the appellant arrested at the scene of the alleged crime.     3. The learned Justices of the Court of Appeal erred in law when they held the confessional statement of appellant, Exhibit A, is admissible when a previous statement made by the appellant immediately his purported arrest at Idiroko was not accounted for by the prosecution.    

4. The learned Justices of the Court of Appeal erred in law when they confirmed the conviction and sentence of death against the appellant whereas neither the alleged stolen vehicle nor the offensive weapons were exhibited at the trial”. In their amended joint appellants’ brief of argument filed on 10th October, 1990, the following issues were set down for determination.     “ISSUES FOR DETERMINATION     1. Whether the prosecution fixed the appellants with commission of the offence of armed robbery having regard to the evidence on their identity.    

2. Whether the second appellant was in possession of the stolen vehicle at the time of his arrest.     3. Whether the failure of the prosecution to tender the appellants statements at Idiroko was fatal.     4. Whether the evidence of each Appellant established a defence of alibi.” PAGE| 6 The issues set down by the Respondent were the same that were outlined in the Court of Appeal, already reproduced.

There were some slight differences in the formulation of the issues in this Court, but by and large, they are identical. On the first issue, learned counsel for the Appellants argued that the Court of Appeal having accepted the finding of the trial Court that the identification of the appellants by the PW1 and PW2 was irregular and rejected same, it was in error to have held that the evidence of PW4 established the identity of the appellants as those who robbed the PW1 and PW2. Counsel submitted that without the evidence of PW1 and PW2 on identification of the appellants the essential elements of stealing the car with violence were therefore lacking. The identification by PW4 did not establish that the appellants were the persons who robbed PW1 of his car.

To the above argument, learned legal officer for the respondent, replied that the identification by the PW1 and PW2 related to the locus in quo while that by the PW4 related to the arrest at the border post of Idiroko. The acceptance of the evidence of the PW4 related to the issue of recent possession of the stolen vehicle by the appellants. The evidence of armed robbery given by PW1 and PW2 was uncontradicted and unchallenged and what is more believed by the trial Judge. Both the trial Court and the Court of Appeal correctly rejected the identification of the appellants as members of the gang that attacked PW 1 and PW2 at the scene of the crime.

This rejection had nothing to do with evidence of the PW4, the Customs Officer, who arrested the appellants at the border town of Idiroko. His identification is the material basis of the issue of recent possession of the stolen vehicle which when related to the time of the theft, raised the presumption under section 148(a) of the Evidence Act on which the trial Court acted. Besides the rejected evidence of PW1and PW2 on identification of the appellants, there was further, Exhibits A & B, the confessional statements of the appellants which anchored them at the locus in quo as perpetrators of the robbery.

The statements Exhibits A and B were admitted without objection. There was no complaint in the lower Court or in this Court to the effect that the same should not have been admitted, or if admitted, should not have been acted upon by the trial Court. Once the statements were properly admitted, no amount of retraction will vitiate their admission as a voluntary statement. See R. v. Itule (1961) 1 All NLR 462 at 465;(1961) 2 SCNLR 183 Akinfe v. State (1988) 3 NWLR (Pt. 85) 729 at 746. However, before a conviction can be properly founded on such a retracted confession, it is desirable to have some evidence outside the confession, which would make it probable that the confession was true. Corroboration however slight must be sought for. See Salawu v. State (1971) 1 NMLR 249 at 252: Akinfe v. State (supra). This was exactly what the trial Court did.

The Exhibits A and B corroborate not only the evidence of the PW4 in material derails, but also the evidence of the PW1 and PW2 as to the robbery attack and its manner of execution. On the issue of the doctrine of recent possession called in aid of the conviction of the appellants, he submitted that since the first appellant was kept in custody from 9th January 1983 up to time of his trial, it could not have been possible for him to produce the Alhaji.

Further, the Police failed to take first appellant to Agege to find out whether or not, an Alhaji of that description lived there. As to the second appellant. he submitted that the stolen vehicle was not found in his possession. Rather he was a passenger in another vehicle bound for Ifonyin market in the Republic of Benin. He argued that section 148(a) of the Evidence Act could not be properly invoked against the second appellant as the stolen vehicle was not found in his possession.

He submitted that the circumstances under which the doctrine would apply, enunciated by this Court in Eze v. State (1985) 3 NWLR (Pt.13) 429 and 438, were missing with respect to the second appellant. He contended that the Court of Appeal was wrong in upholding the findings, of the trial court in this respect. To this, learned legal officer replied that the production of the particulars of the stolen vehicle by the second appellant to the PW4 was enough to infer that he was in possession thereof. The vehicle particulars were documents of ownership or ostensible control over a vehicle. Relying on Everest Eze v. State (1985) 12 S.C.4 at page 23; (1985) 3 NWLR (Pt. 13) 429 he adopted the dictum of Oputa, J.S.C. (as he then was) that –     “Possession implies not only physical power or custody over the res but also (and more importantly) the power to exclude others.” In respect of the first appellant, he was found inside the vehicle, driving it. It beloved him to offer reasonable explanation of his possession of same. Section 148(a) of the Evidence Act provides as follows:-     “that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”.

The above is not a presumption of law. It is an inference which the Court, may be constrained to draw from the facts of the case after taking into consideration all the circumstances of the case. Whether the Court draws an inference that the recent possessor is the thief or the receiver would again be dependent on the facts proved in evidence. See Isaac Schama and Jacab Abramavitch (1914) 1 CAR 45. In Kwarite, Kwashie v. R. 13 W.A.C.A. 86 where the trial Court directed that a verdict of receiving instead of stealing be entered under the said section. West Africa Court of Appeal held as follows:    

“With due deference to the learned Judge we are unable to agree with that direction. It is a presumption of fact, and not an implication of law, from evidence of recent possession of stolen property unaccounted for, whether the offence of stealing or receiving has been committed (Rex v. Longmead of Cox C.L. 7464). The law on the point was thus set out in the well known case of R. v. Burdett 4B Ald.147.

“If a theft has been committed and shortly afterwards the property is found in possession of a person, who can give no account of it, it is presumed that he is the thief” This is generally referred to as the doctrine of recent possession in our criminal law. It was not disputed that the vehicle of PW1 was stolen at between 8.30p.m and 9.00p.m on 8/1/83. There was evidence that the stolen vehicle was driven off by two of the armed robbers.

It was also not disputed that the first appellant was arrested the following morning at 9.00a.m., driving the stolen vehicle through an unauthorized route, heading towards the Republic of Benin. Oputa J.S.C. in Everest Eze v. State (1985) 12 S.C.4 at 23; (1985) 3 NWLR (Pt. 13) 429 in circumstances not dissimilar from the present, held that the possessor of the key of a motor cycle was possessor of the said motor cycle. Here, besides the possession of the particulars of the vehicle, there was evidence of the representations made by the second appellant to the PW4 concerning the stolen vehicle. The second appellant requested free passage for their two vehicles. When accosted, he produced the particulars of the stolen vehicle and tendered these to the Customs Officer, PW4, when he demanded them.

It was the second appellant who explained to PW4 that the two vehicles were traveling to Ifonyin market. The above action showed that he was interested in the said vehicle and had control over its movements. The trial Court found that he was in the company of the second appellant and that the two were traveling together, though in two separate cars.

He was on the evidence accepted by the trial Court in possession of the stolen vehicle with the first appellant. Section 148(a) of the Evidence Act is above reproduced. A trial Court may in the circumstances above outlined, presume that the appellants found in possession of a vehicle stolen about 12 hours earlier were the persons who stole the vehicle in question. See R. v. lsa Braimoh (1943) 9 WACA 197. See also The State v. Aiyeola & Ors. (1969) 1 All NLR 303. As held by Oputa JSC in Eze’s case, the second arm of the section 148 (a) of the Evidence Act could only arise where the party found in recent possession pleads that he was an innocent receiver in which case guilty knowledge becomes an issue.

The presumption may be rebutted by the appellants offering a satisfactory explanation as to how they came to be in possession of the said vehicle. The explanations offered by the appellants in the face of Exhibits A and B, were rejected by the trial Court. The Court of Appeal did not find any reason to reverse the findings of fact so made. I do not myself find any reason to disagree with the concurrent findings of fact of the trial Court and the Court of Appeal. Issue three raised is whether the failure of the prosecution to tender the alleged appellants’ statements at Idiroko Police Station was fatal to the case of the prosecution. On this, learned counsel argued that the appellants testified in cross-examination that they made statements to the Police at the Idiroko Police Station and as the prosecution did not tender the said statements, the Court should presume that the statements were favourable to the accused and apply the provisions of section 148(d) of the Evidence Act. He relied on Queen v. Itule (1961) 1 All NLR 462: (1961) 2 SCNLR 183. Section 148(d) of the Evidence Act provides as follows: “that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” The above complaint was not raised in the trial Court.

It was however taken before the Court of Appeal (See page 79 of the records as an issue numbered four). The Court of Appeal observed that when the recorder of the statements of the appellants (PW5) testified, there was no suggestion that the accused persons had made earlier statements. In the evidence in chief of the accused persons, this allegation was also absent. It was under cross-examination that each accused came out with the story of the previous statements.

There was nothing on record to show that a subpoena was served on the prosecution to produce the statements and it was not produced. The defence was entitled to call for the statements, if they existed. The Court of Appeal correctly held that it was difficult to hold that the non production of the said statements amounted to suppression which would invoke the presumption of section 148(d) of the Evidence Act. The presumption arises when it is shown that the adverse party has suppressed a document which has been proved to be in its possession and which it has refused to produce after service of the notice.

On the fourth issue, learned counsel for the appellants argued that the trial Judge did not consider the defence of alibi put up by the appellants. He contended that once an accused person had put up the defence of alibi, the duty on him was to adduce evidence accordingly. It was not for him “to fully prove the authenticity of the evidence of the alibi”. He relied on Ikano v. State (1973) 5 S.C.231 at 256.

Such evidence, he argued should not be disregarded unless there was stronger evidence against it. He relied on Odidika and Anor. v. The State (1977) 2 S.C at 21/23. The trial Court he concluded should not have allowed the defence of alibi, no matter how improbable or stupid, to go uninvestigated since it raised a reasonable doubt in the case for the prosecution. He cited Opayemi v. State (1985) 2 NSCC 921; (1985) 2 NWLR (Pt.5) 101 in which this Court held that failure to consider and examine a defence is a failure to perform a vital duty which may lead to a miscarriage of Justice.

He therefore submitted that it was erroneous on the part of the Court of Appeal to hold that there was no miscarriage of justice, when the trial Judge failed to consider the defence of alibi. While the above may be said to be reasonable statement on the law pertaining to the plea of alibi, the question first to be answered is whether the defence of alibi was properly set up by the appellants? This Court has in many decisions outlined the criteria for properly setting up a defence of alibi. The accused must set up the defence at the first available opportunity in order to give the Police an opportunity to investigate. In Nwahueze v. State (1988) 4 NWLR (Pt. 86) 16, p.32 this Court held per Nnaemeka-Agu J.S.C. as follows:

“In the first place, it must be noted that the Latin word alibi means “elsewhere”. A defence of alibi is one which postulates that the accused person was some where else other than the locus of the offence charged at the time of commission of the offence. For a proper plea of alibi there is an evidential burden on the accused to bring evidence, with all necessary particulars, in support of the alibi; that is some evidence tending to show that by reason of the presence of the accused person at a particular place other than the locus of the commission of the offence charged at the time it was committed, he could not have committed the offence.

Once he has properly raised his defence of alibi, the onus is on the prosecution to investigate and disprove the alibi by evidence. Until the defence of alibi is properly raised with all the necessary particulars to enable the prosecution investigate it and rebut it, if they can; there is nothing for the prosecution to disprove.” In Ikemson & Ors. v. State. (1989) 2 NSCC 471 at 486; (1989) 3 NWLR (Pt. I 10) 455. Oputa J.S.C. stated as follows:

The prosecution has a duty to investigate an accused person’s alibi, but only when such alibi, is set up at the earliest opportunity during the investigation stage preferably in the accused person’s statement to the Police. An alibi raised for the first time from the witness box cannot be considered as a serious defence. At the least it is after thought.”

In Salami v. State (1988) 3 NWLR (Pt. 85) 670, Belgore, J.S.C. stated that the alibi must be unequivocal and must be given during the investigation and not during the hearing of evidence. The mere allegation that he was not at the scene is not enough. The accused person must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the offence in question. See also Yanor v. The State (1965) 1 All NLR 193.

In the present case, in their statements to the Police Exhibits A & B, the first and second appellants respectively did not raise the issue of alibi. In fact the defence was not raised by the appellants in their evidence in chief. It was under cross-examination that the first appellant testified that “on 8/1/83 I helped one Alhaji to carry load to Lagos and I got home by 6.45p.m.”  The offence was committed at about 8.30 p.m. to 9.00 p.m. on the day in question.

The alibi did not cover the material time. Where was the first appellant between 6.45 p.m. and 8.30 p.m. of 8/1/83? He did not give names of those who were with him between 8.30p.m. and 9.00 p.m. on 8/1/83. The second appellant testified also in cross-examination that he “went to work on 8/1/83 to paint a shop at Ketu and I came home immediately I finished the work.”

When did he return from work? Who were with him when he returned from work up to the time of the robbery? These particulars, were not supplied. How then could the investigation have been conducted even if the allegations above were made timeously? It is obvious from the records that the plea of alibi not being properly set up did not avail the appellants. The complaint before this Court is that the learned trial Court did not consider at all, the alleged defence of alibi. Except to state that the defence was not properly put before him, or that it was an after thought, there was nothing else for the Court to say. In the present case, the trial Court ignored same.

The Court of Appeal correctly held that it was an error that did not occasion any miscarriage of Justice. This Court has very often expressed that not every error or mistake on the part of the Court of trial will vitiate a Judgment. It is only where such error or mistake is so fundamental as to occasion a miscarriage of Justice. See Yaro v. State (1972) NSCC  160 at 165.

From the totality of evidence before the trial Court, this lapse did not occasion a miscarriage of Justice. It is my view that this appeal lacks merits. It is hereby dismissed. The Judgment of the Court of Appeal is hereby confirmed. The conviction and sentence of the trial Court are hereby confirmed.

Other Citation: (1991) LCN/2457(SC)