Rufus V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C.

This appeal is against the decision of the Court of Appeal sitting at Ado Ekiti, referred to as the lower Court, delivered on the 31st day of March 2014.

The Appellant was charged at the High Court of Ekiti State alongside one other, on a three count charge of conspiracy, armed robbery and willful damage to property under the Robbery and Fire Arms Act Cap 398 Vol XXII Laws of the Federation of Nigeria 1990 as amended. The Appellant pleaded not guilty to the charge, which are hereunder reproduced as follows:

COUNT 1

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court did conspire with each another to commit armed robbery and thereby committed an offence contrary to and punishable under Section 5b of the Robbery and Firearms Special Provisions Act Cap 398 vol XXII Laws of the Federation of Nigeria 1990 as amended.

COUNT 2

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and other dangerous weapon did rob one pastor Ajayi Olayinka 11,000 naira [eleven thousand naira] and one Nokia handset and thereby committed an offence punishable under Section one Section 2a of Robbery and Firearms Special Provision Act, Cap 398 vol XXII, Laws of the Federation of Nigeria 1990 as amended.

COUNT 3

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and in the process of robbing did willfully damage one Mazda 626 millennium with registration number LG49TUN property of Otun local government and thereby committed an offence contrary to and punishable under Section 481 of the Criminal Laws of Ondo State 1978 as applicable to Ekiti state.

As highlighted earlier, each of the two accused persons pleaded not guilty to the count and the matter proceeded to trial. The Respondent called in 6 witnesses and tendered 12 exhibits namely Exhibits A, B, C, C1, D, D1, E, E1, F, F1, G, and G1 in pages 66-68 of the Record. While the Respondent called in its 5th witness, the office of the Attorney General of Ekiti State substituted the charge with no objection from the accused persons. The substituted charge reads as follows:

COUNT 1

That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did conspire together to commit felony to wit; armed robbery and thereby committed an offence contrary to Section 6[b] of the Robbery and Firearms [Special Provisions] Act Cap R11, Laws of the Federation of Nigeria 2004.

COUNT 2

That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September, 2008 at Otun-Ekiti, Ekiti State of Nigeria while armed with offensive weapons to wit: cutlass and knife robbed one Mrs. Ajayi Kofoworola of the sum of One Thousand Five Hundred Naira [N1,500] and thereby committed on offence contrary to Section 1[2] [a] of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.

COUNT 3

That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did willfully damage one Mazda 626 millennium car with Registration Number LG 49 TUN, official car of one Honourable Ajayi Olayinka and thereby committed an offence contrary to Section 451 of the Criminal Code volume II Cap 30 Laws of Ondo State 1978 as applicable to Ekiti State.

Immediately after substitution, the trial continued and PW6 gave his evidence. See pages 65 to 69 of the Record. The Appellant and the other accused person each testified solely in his defense and called no other witness.

At the end of trial, the trial Court convicted the accused persons as charged and they were sentenced to life imprisonment and 6 months imprisonment.

At Page 97 of the Record, the trial Court, per ADEYEYE, J. held as follows:

“I therefore find each of the accused persons guilty of conspiracy, attempted robbery and unlawful damage. Each accused is accordingly convicted… Each of the accused persons is sentenced to life imprisonment in respect of the charge of conspiracy and attempted robbery. Each of the accused persons is sentenced to six months imprisonment in respect of Count 3 of the charge, the sentences shall run concurrently.”

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal Ado-Ekiti Division. The Court below, in a unanimous decision, dismissed the appeal. At pages 210 to 212, the Court of Appeal held inter alia thus:

I have painstakingly perused the record of appeal and the evidence contained therein and more particularly the testimonies of PW2, PW3 and PW5 coupled with the submission of both learned counsels for the parties thereon. In this vein, I have no doubt that the findings made by the learned trial Judge in this regard were borne out of pieces of evidence contained in the record of appeal Indeed I am unable to detect any segment or vestige of doubt from the evidence on the printed record placed before us. Accordingly, in the absence of compelling, showing, indicating and incorrect evaluation/erroneous appraisal of facts and wrong conclusions, I am thus obliged to show utmost restraint and refuse to accede to any invitation or succumb to any temptation towards interfering with duly considered findings as amply demonstrated above made by the learned trial Judge in the instant case. After the giving of exhaustive considerations to the evidence of requisite witnesses placed before him…in the premise of all that, I have stated above and having resolved all issues adopted for the termination in this appeal against the appellant, I have no valid reason to upturn or jettison the conviction of and sentence imposed on the appellant by the earned trial Judge in this case. The appeal is devoid of any positivity, it is accordingly dismissed by me, and the judgment of the trial Court is affirmed.

The Appellant, still dissatisfied, filed an appeal to this Court via a Notice of Appeal filed on the 6th day of June 2014. The said Notice of Appeal contains seven grounds.

In accordance with the practice and accepted procedures of the Supreme Court, parties filed and exchanged briefs. Counsel to the Appellant Chief R.O BALOGUN filed his brief on the 23rd day of March 2016 while counsel to the Respondent, the Honourable Attorney General of Ekiti State OLAWALE FAPOHUNDA Esq. settled the Respondent’s brief on the 25th day of November 2019.

In the Appellant’s brief of argument, the following three issues were distilled for this Court’s determination. They are:

1. Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. ExWing Commander James.
2. Whether the Court of Appeal was not wrong when their Lordships held that the defence of aibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.
3. Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.

For the Respondent, three issues were also formulated for determination. They read as follows:

1. Whether the Court of Appeal was right in upholding the decision of the trial Court in convicting and sentencing the Appellant for the offence of conspiracy, attempted armed robbery and wilful and unlawful damage based on the substituted charge No. HAD/29C/2012, filed on 23/7/2012 without commencing the trial de novo?
2. Whether the defence of alibi raised by the Appellant can exculpate him in the instant case?
3. Whether the identity of the Appellant as a robber was established by the Respondent and thus proved the case beyond reasonable doubt against him?

The three issues raised by Counsel on both sides are the same in purport, though differently couched. The issues as formulated by the Appellant are adopted in the determination of this appeal. Issues two and three are taken together.

ISSUE ONE

Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. Ex-Wing Commander James.

It is submitted for the Appellant that the Respondent having substituted the original charge upon which the Appellant was arraigned and the charge struck out, the charge ceases to exist. According to learned counsel for the Appellant, the plea of the Appellant, having been taken and hearing commenced, substitution of the charge cannot be validly done.

It is his view that all five witnesses called before the charge was substituted should be discountenanced by this Court and the matter ought to have commenced de novo on the new charge.

Learned counsel for the Appellant invited this Court’s attention to pages 59-61 of the Record, which clearly captured what transpired on the 3rd day of October, 2012, when the Respondent made an oral application to withdraw the original charge and substituted it with the new charge.

It is his opinion that the trial Court did not make nor grant any order for amendment of the original charge, since the Respondent never prayed for such an order in accordance with Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State. According to him, the Respondent only made an oral application for the substitution of the original charge, with a new one.

Learned counsel for the Appellant posited that the provisions of Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State relied upon by the trial Court are not relevant and ought not to have been applied. His view is that Section 163 cannot be read in isolation, but must be read in concert with Sections 162,164 and 165 of the Criminal Procedure Law, supra. He relied on the case of PRINCE v. STATE (2002) 12 S.C (PT 1) 144-145

It is the view of learned counsel for the Appellant that the cases of F.R.N v. ADEWUNMI and NIGERIAN AIR FORCE v EX-WING COMMANDER L.D JAMES (2002) 18 NWLR (Pt 798) 295-332 relied upon by the trial Court, and affirmed by the Court below, are not apposite and are distinguishable from the instant case.

He urged this Court to hold that the evidence and testimonies of PW1-PW5, that were called on the basis of the original charge ought to be struck out and discountenanced; and resolve this issue in favour of the Appellant.

​In response to the above, it is the submission of learned counsel for the Respondent that Section 163 of the Criminal Procedure Law of Ekiti State which is im pari materia with Sections 154 and 155 of the Ekiti State Administration of Criminal Justice Law, 2014, empowers the Court to alter, amend, or add any charge in any criminal proceedings before it. He argued that the amendment may be in the form of addition, deletion, or even complete substitution and placed reliance on these cases:

UKET v. FRN (2008) ALL FWLR (PT 411) 923;

NIGERIA AIR FORCE v. JAMES (2003) FWLR (PT 143) 257

STATE v OLATUNJI (2003) FWLR (Pt 155).

Learned counsel for the Respondent posited that the Appellant was duly represented in Court when the original charge was substituted and he did not object to the substitution.

He posited that the trial of an accused person cannot be vitiated on grounds of irregularity, except it occasioned a miscarriage of justice, which was not the case, in the instant appeal. He commended this Court to the following cases:

AKPA V THE STATE (2008) ALL FWLR (PT 420) 644,

UDOSEN V THE STATE (2007) ALL FWLR (Pt 356) 669.

​This Court is urged to discountenance the arguments proffered on behalf of the Appellant on this issue, and resolve same against him.

Perhaps it is apt to stress here that learned counsel on both sides are ad idem that the Respondent can amend, alter, or substitute a charge. What is in issue here is the effect of such alteration on the Appellant’s case.

It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused.

​The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof. The provisions of the Section are as follows:-

“(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.

(2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.”

Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential. Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v. STATE (1995) LPELR 451 SC.

​Relating the above quoted authorities to the case at hand, the contention of the Appellant herein is that the Respondent, having withdrawn the original charge upon which the Appellant was arraigned and the original charge struck out, the charge against the Appellant ceases to exist and the trial of the Appellant ought to be started de novo, based on the new charge, and the evidence of the five witnesses taken and evidence given prior to the substitution ought to be struck out alongside the original charge.

I must straight away state that this position taken by learned counsel for the Appellant, does not represent the law, as quoted above.

In the case of NIGERIAN AIR FORCE v. EX WING COMMANDER LD JAMES (SUPRA) this Court had this to say;

Therefore substitution will have the same meaning and effect with alteration and according to Section 164 of the said act, where a charge or count is altered, all that is required to be done is to read the new charge to the accused and record his/her plea there too. The proceedings are deemed to be continued and not disturbed as a result of the alteration.

In OGUDO v. THE STATE (2011) LPELR 860 SC, this Court gave the procedure to be taken when a charge is amended or substituted as follows:

The proper procedure to take when a charge is amended is for the Court to read and explain to the accused every allegation or addition to the charge and to call upon the accused to make a fresh plea and to say whether he was ready to be tried on the amended charge and/or to recall all witnesses who may have given evidence and to ask the prosecution and accused if they wish to examine or cross-examine them.

I have carefully read the proceedings of the trial Court on the 3rd day of October 2012. The plea of the Appellant was made after the substituted charge had been read and explained to him (Appellant) in English and Yoruba. It was not the case of the Appellant that he did not understand Yoruba or that the substituted charge was not read and explained to him in Yoruba and English. Above all, the Appellant was represented by a learned counsel who appeared for him at the material time. Counsel for the Appellant C.O. Omokhafe appeared on behalf of the Appellant and raised no objection to the substitution of the charge. The substituted charge was read to the Appellant who pleaded not guilty. The learned trial Judge gave direction for the matter to proceed. The Appellant did not make any application either by himself or his counsel to recall any of the prosecution’s witness. The appropriate action to be taken at the trial Court was for the matter to proceed which the learned trial Judge did.

It must be noted that the real purpose of the provisions of Sections 162, 163, 164, 165 and any other Sections of the Criminal Procedure Act/Law relating to taking of plea of an accused on a charge or amended/substituted charge is to enable the accused to understand the nature of the charge or amended or substituted charge preferred against him. That was the fundamental or essential requirement or thing. If there is no miscarriage of justice, there is a presumption that the trial of the Appellant was regular.

It should be noted, in the present connection, that while Sections 164 and 165 of the Criminal Procedure Law are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163, it is clearly never the intention of the Act/Law that these Sections should provide an accused with a gratuitous escape route to freedom in the face of overwhelming evidence.

​In view of the foregoing, I find no merit in the Appellant’s submission on this issue and same resolved against him.

ISSUE TWO

Whether the Court of Appeal was not wrong when their Lordships held that the defence of alibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.

ISSUE THREE

Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.

It is the argument of learned counsel for the Appellant that the Appellant promptly raised the defence of alibi upon his arrest, in his extra-judicial statement. He invited this Court’s attention to Exhibit A, at page 66 of the Record, and submitted that the Appellant’s evidence that he was at his house on the 29th of September 2008, the date of the incident, was not discredited under cross-examination.

Learned counsel for the Appellant opined that the decision of the two lower Courts, that there was overwhelming evidence which fixed the Appellant to the scene of the crime, and therefore there was no need to investigate the alibi, occasioned a miscarriage of justice.

He contended that the evidence of PW1 and PW4 did not sufficiently pin the Appellant to the scene of the offence. According to him, having regard to the time the incident occurred, coupled with the fact that there was no light, (the incident having purportedly occurred at about 1.00 a.m. – 2.00 a.m.), it is absolutely impossible for the witness to recognise the Appellant by mere flashing his torchlight outside.

Finally he submitted that in the absence of any credible evidence adduced to discredit the alibi, the Appellant would inadvertently be exonerated of the charge, and the lower Court erred in affirming the decision of the trial Court, that the Respondent had successfully established all the ingredients of the offence charged.

He relied on this Court’s decision of AYAN V THE STATE (2013) LPELR 20932 SC and urged this Court to resolve these issues in favour of the Appellant.

Arguing in opposition to the above, it is submitted for the Respondent that the learned trial Judge painstakingly evaluated the evidence of PW1 and PW4 which effectively pinned the Appellant to the scene of the crime.

Learned counsel for the Respondent stated that by the evidence of PW1 and PW4, the Appellant was clearly identified by his voice and visual identification during the commission of the crime, which according to him, were some of the established ways of linking a person with the commission of the crime. He relied on the case of EMENEGOR v. STATE (2010) ALL FWLR (PT 511) 884.

He continued by arguing that it is not in all matters that once the defense of alibi is raised, an accused person is completely exculpated from the crime. According to him, if the prosecution can adduce succinct evidence, pinning the accused to the scene of the crime, the defense of alibi will automatically fail. He called in aid, these cases:

ATTAH V THE STATE (2010) VOL 30 WRN P1

NWABUEZE AND ORS V THE STATE (1988) 7 SCNJ (PT11) PG248.

​He submitted in conclusion that the Court below properly evaluated all the evidence adduced before coming to the conclusion that the trial Court rightly convicted the Appellant for the offences charged.

This Court is urged to so hold, and resolve these issues against the Appellant.

I have carefully looked at the evidence of PW1 at pages 35 to 37 of the record. Part of the said evidence reproduced reads as follows:

“I picked up my torchlight and flashed outside, I saw the first accused person, I then shouted obosco you are the one doing this to me, the first accused person then replied that I should forget about that and open the door for them”… when I entered the room, I saw the face of the second accused person through the window, I started shouting his name again that kokorowa this is not good oo. The accused person went to where I parked my car and damaged all the glasses and windscreen.”

PW4 also stated as follows:

I know the first accused person and obosco and the second accused person as kokorowa. I know them in the town and they are my customers and as such, I can identify them anywhere… they shouted open the door but my husband insisted he will not open the door. They broke the glass of the window and called the name of my husband super open the door”

Looking at the above pieces of evidence, to my understanding, PW1 and PW4 both have a clear understanding as to the identity of the accused persons. What more could be tagged as identity of someone other than his name? At pages 70 and 72 of the Record, the accused persons admitted under cross-examination that they are being called Obosco and Kokoro Ewa respectively. See:

UGWU V THE STATE (2020) LPELR-49375 SC,

IDIOK V THE STATE (2008) FWLR (PT 421) 797.

​In rejecting the defence of alibi, the Court below observed as follows, at pages 201 to 202 of the Record:

“In a situation such as in this case, where an accused is fixed at the scene of crime, the fact that the police/prosecution did not investigate the claim of alibi is very irrelevant as such an investigation would be a complete waste of time, a worthless exercise, which can be likened to a wild goose chase. It follows therefore, that where an accused is fixed at the scene of crime, which evidence is believed by the learned trial Judge, no reasonable doubt is created for the benefit of the accused if the police failed and/or neglected to investigate a claim of an alleged alibi put up by the defence/accused person. On the issue of identification…it is clear that both PW1 and PW4 recognised and further identified the Appellant as one of the robbers that invaded their residence. I think it is worth restating, that when an accused person is fixed at the scene of the commission of the crime, the plea of alibi fails and fizzles out as a candle in the wind……..in the case at hand, where the Appellant was duly identified, recognized and fixed at the commission and the locus of the crime by PW1 and PW4, who knew him before the incident, there was no burden to verify the plea of alibi…”

I find this decision of the Court below to be infallible and have no reason to hold otherwise.

An appellant insinuating that he was not at the scene of the crime has the burden to also lead in credible evidence to discredit the prosecution’s case in proving his defense of alibi. The Appellant at page 70 of the record stated that he was at his house at the time of the commission of the offence. There is nothing in the record that supports the Appellant’s alibi or discredits the Prosecution’s firm evidence against him.

This Court in the case of IDIOK v THE STATE (supra) had this to say:

Once an accused person is fixed at the scene of the crime, his defense of alibi must fail.

The conclusion to which I have come is that I must resolve these two issues against the Appellant,

The concomitant effect of the above is that this appeal is wholly unmeritorious and worthy of dismissal. Same is accordingly dismissed by me.

The decision of the Court of Appeal, Ado Ekiti Division, delivered on the 31st of March 2014 is hereby affirmed.

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SC.557/2014