Olayinka Afolalu V. The State (2010)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, JSC

The Appellant who was the accused person at the Ado-Ekiti High Court of Justice of Ekiti State, was arraigned on a 2 count charge of armed robbery –

“1. Robbing one Idowu Fanikun (F) of the sum of N225.00 (Two Hundred and Twenty Five Naira) while armed with offensive weapons to wit guns thereby committed and offence contrary to S.1 (2)(a) of the Robbery and Firearms Special Provisions Act CAP 390 vol. XXII Laws of the Federation of Nigeria 1990 as amended by Tribunals Certain Consequential Amendments Decree No. 62 of 1999.

2, Robbing one Mercy Ogunshakiu (F) of the sum of N1,750.00 (One Thousand, Seven Hundred and Fifty Naira) while armed with offensive weapons to wit guns thereby committed an offence contrary to S.1(2a) of the Robbery and Firearms Special Provisions Act CAP 390 Vol. XXII Laws of the Federation of Nigeria 1990 as Amended by Tribunals Certain Consequential Amendments Decree No. 62 of 1999.”

On the commencement of his trial; the Appellant pleaded not guilty to the 2 counts of the charge. The prosecution called 4 witnesses in its bid to prove the counts against the Appellant. At the close of the prosecution’s case, the Appellant elected to give evidence and called 3 other witnesses who testified in support of his defence.

From the evidence on record, the case of the prosecution was that on 27th April, 2002, the Appellant and 3 others still at large, while armed with guns carried out a robbery operation along Igede Road, Ilawe Ekiti in Ekiti State of Nigeria and robbed one Mercy Ogunshakin and raped 12 robbery gang.

In his defence, the Appellant denied participating in the act of armed robbery as charged and set up a defence of alibi by claiming that at the time the robbery was committed, he was watching video film with his friends in the house of one of such friends. At the conclusion of the trial, the learned trial Judge found the Appellant not guilty of the first count of the charge and accordingly discharged and acquitted him. However, as for the second count of the charge, the learned trial Judge found that the prosecution had proved its case against the Appellant whose defence of alibi was rejected following the positive and direct evidence of identification of the Appellant as one of the armed robbers who participated in the operation of 27th April, 2002 and therefore convicted and sentenced the Appellant to death according to the law. The Appellant’s appeal to the court of Appeal Ilorin was heard and dismissed in the judgment of that court delivered on 10th December, 2007. The present appeal in this court by the Appellant is against the affirmation of his conviction and sentence by the Court of Appeal. The only issue identified in the Appellant’s brief for the determination of the appeal in this Court is –

“Whether the accused was proved beyond reasonable doubt by the evidence adduced by the prosecution as the actual person that committed the offence of armed robbery at the house of the Complainant.”

This issue was adopted by the Respondent in the Respondent’s brief of argument.

In mobilizing support for the lone issue for determination, the learned Counsel for the Appellant complained that both the trial Court and the Court below have failed to observe some cardinal principles of law in the trial of the criminal case and in the handling of the Appellant’s appeal; that in the trial of the case, the Appellant by virtue of the case of Ameh v. The State (1978) N.S.C.C. 368, ought to have been presumed innocent until the Court determines otherwise at the end of the trial; that had the two courts below closely examined the defence of alibi raised by the Appellant, the evidence had clearly disclosed a cloud of doubt, the benefit of which ought to have been given to the Appellant to justify his discharge and acquittal on taking into consideration of cases like Ukpabi v. The State (2004) A.F.W.L.R. (Pt. 21S) 814 at 820; Gwawoh v. Commissioner of Police (1974) N.S.C.C.586 and Ikono & Ors. v. The State (1973) N.S.C .C. 352. Learned Counsel also accused the Court below of failing to consider other defences opened to the Appellant apart from the defence of alibi raised by him; that the evidence of the only witness who identified the Appellant, ought to have been treated with great caution in line with the decisions in Nwuzoke v. The State (1988) 1 N.S.C.C. 361; Laoye v. The State (1985) 2 N.S.C.C. 1251 and Offorlete v. The State (2000) A.F.W.L.R. (Pt. 12) 2081.

For the Respondent however it was argued that the Appellant’s defence of alibi had been successfully destroyed by the evidence of the prosecution placing the Appellant at the scene of the robbery at the time the Appellant claimed he was elsewhere; that the evidence of PW1 on the identity of the Appellant as one of the participants in the armed robbery was positive and unshaken; that as that evidence was believed and acted upon by the trial Court in convicting the Appellant and the court of Appeal having confirmed that finding, the complaint of the Appellant that the evidence of’ PW1 is not credible to support the conviction of the Appellant has no basis at all. The case of Eze v. The state (1985) 3 N.W.L.R. (Pt. 13) 429 was relied upon. Learned counsel pointed out that the fact that the robbery operation on the night of the incident lasted several hours during which PW1 interacted with the Appellant, the witness had sufficient opportunity to be in a position to identify the Appellant. The cases of Olalekan v. The State (2001) 18 N.W.L.R. (Pt. 746) 793 at 830 and Ajibade v. The state (1987) 1 N.W.L.R. (ft. 48) 205 were picked up in support of this submission. Learned Counsel concluded that the failure to conduct identification parade in this case or failure of the trial Court to look for corroborative evidence to support the evidence of PW1 who knew the Appellant before the date of the incident of the robbery, was quite unnecessary if cases like Ottis v. The State (1993) 4 N.W.L.R. (Pt. 290) 675 at 681, Ugwumba v. The State (1993) 5 N.W.L.R. (Pt.296) 660 at 674 are taken into consideration.

In the instant case, there is no doubt at all that the learned trial Judge who saw and heard the evidence of the witnesses called by the prosecution especially the evidence of PW1 who saw and identified the Appellant and the evidence of the Appellant and his witnesses in support of his defence of alibi, was satisfied with the evidence of the prosecution that the offence of armed robbery under Section 1(2)(a) of the Robbery and Fire-arms (Special Provisions) Act, 1990, had been proved beyond reasonable doubt against the Appellant when he said at page 86 of the record

“In conclusion I wish to state that the totality and grand summation of the evidence before me lends credence to the fact that the ingredients of the offence of armed robbery have been proved against the accused Person with particular reference to count 2 of this charge.

I am convinced beyond doubt that: