Tajudeen Alabi V. The State (1993)

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ONU, J.S.C.

This is an appeal from the decision of the Court of Appeal sitting in Lagos which affirmed the decision of High Court of Lagos State that convicted two persons of the offences of conspiracy to commit Robbery contrary to section 403A of the Criminal Code (Amendment No.1) Law, 1980 of Lagos State and Robbery contrary to section 402(2) (a) of the same Law. The appellant herein was the second accused in the trial court, the 1st being one Adelani Onifade, who has been shown to have died in prison between the period of his conviction by the trial court and hearing his appeal along with that of the present appellant.

It is pertinent to point out here that although no death certificate was produced in respect of the 1st accused, the lower court acting on counsel (A.F. Okunuga’s) pronouncement from the bar on 17th January, 1990 that the 1st accused was dead, struck out his appeal. See page 167 of the Record. Albeit, in its judgment dated 19th February, 1991 (for which see pages 186-194 of the Record) the Court below in an apparent oversight treated the appeal of the 1st accused as still subsisting and considered the appeals of both the 1st accused and the appellant together and dismissing both, as earlier shown. The facts of the case which are not in dispute are briefly as follows:-

P.W.1, Adebiyi Olabisoye, who was the victim of the alleged robbery stated how at about 7.15p.m on 7th September, 1981, he was driving his Peugeot 305 saloon car registration Number LA 899 AJ along Allen Avenue, Ikeja, while in the company of one Rolan Verge, a German, some men pounced on him as he approached the gates of 45 Allen Avenue to where he was going. That one of the men forced the driver’s door open and asked for his keys and money. That thereupon, he was given matchet cuts on his head and left thumb though he eventually managed to escape, while their attackers made away with the car.

He described how the passenger in his car was also attacked by one of the robbers. He stated how he identified 1st and 2nd accused persons in an identification parade conducted at Panti Police Station. It is noteworthy here to stress that P.W.1 put the number of their attackers on that day at two men. P.W.2 was the Police Officer who received the report of the incident at the Ikeja Police Station on the day it occured on 7th September, 1981. He stated under cross-examination that P.W.1 gave the number of their attackers who robbed him of his car as six.

P.W.3, was the Police Officer attached to the State C.I.D., Panti, Yaba, who took the statements of the two accused persons. According to him, he only investigated the case against the 1st accused as to how he was arrested at Ibadan with the stolen car now bearing a new registration plate number. Nothing was however said by the witness as to the case against the appellant and with his evidence, the prosecution closed its case.

Both 1st accused (hereinafter called the deceased) and appellant denied the charges both in their extra-judicial statement to the Police (See Exhibit B) and in their oral evidence in court. The deceased said the motor car in question was sold to him by one Yinka Adebowale for N4,000.00 but that he could only make a down payment of N2,000.00; such that when the seller came to demand for the balance of the price, he decided to resell the car for N5,000.00 so that he could payoff the balance of N2,000.00 to Yinka Adebowale. He said he then took the car to Ibadan where he saw the appellant who said his aunt had wanted to purchase a car prior to that time and that they, the deceased and appellant should take the car to appellant’s said aunt. Whereupon, the husband of appellant’s aunt alerted the police that the car was a stolen vehicle and they were both arrested and brought to Lagos.

The appellant’s story about the stolen car confirmed all that the deceased explained. He in addition asserted that he and the deceased took the car to his sister (not aunt as claimed by the deceased) and that it was the latter’s husband who after inspecting the vehicle particulars, saw that it was a stolen vehicle and thereafter invited the police to arrest the deceased. Whereupon, he too was arrested with the deceased and were both brought to Lagos. He emphatically denied being in Lagos on 7th September, 1981, adding that he was never put on any identification parade. The appellant’s further appeal to this court as herein before alluded to is against the lower court’s dismissal of his conviction and sentence premised on a Notice of Appeal containing three grounds.

The two issues identified on behalf of the appellant (the first being related to grounds 1 and 2 of the appeal grounds while the second is concomitant with ground 3) which we are called upon to determine (two identical issues have similarly been submitted on respondent’s behalf) are:

1. Whether the case (it is one of robbery in which the appellant as an accused was not arrested at the scene of the crime and he denied ever committing the offence) was proved beyond reasonable doubt, moreso that proof of the appellant’s identity became mandatory and
2. Whether the Court of Appeal was right in law in holding that no miscarriage of justice has been occasioned to the appellant by the misdirection contained in the judgment of the trial Judge when he said “the evidence of the 1st and 2nd accused persons, in no way convince me of their innocence”.

At the hearing of this appeal on 17th June, 1993, learned counsel for the appellant adopted his brief dated 9th February, 1993 and orally expatiated on it. Learned D.P.P for the respondent similarly did likewise with regard to respondent’s brief filed on 9th March, 1993.

In considering firstly the question as to whether proof of the identity of the robber is an essential requirement in a charge of robbery especially where, as in the instant case, the robber was not arrested at the scene of the crime, it is my view, that for the prosecution to succeed, it must of necessity establish the identity of the accused and by credible evidence, prove its case beyond reasonable doubt. In this wise, it is pertinent to call in aid section 137 of the Evidence Act which the Federal Supreme Court, followed by this court, have been quite consistent in applying to enunciate and amplify the said principle. For instance in Alonge v. I.G.P. (1959) SCNLR 516; (1959) 4 F.S.C. 203 at 204 Ademola, C.J .F. said:

“Now the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it, and this is the law laid down in section 137 of the Evidence Ordinance, Cap. 62. The burden of proof lies of the prosecution and it never shifts; and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus which the law lays upon it and the prisoner is entitled to an acquittal.”

In Bakare v. The State (1987) 3 S.C. 1 at page 33; (1987) 2 NWLR (Pt.52) 579 this Court (per Oputa, J.S.C.) said as follows:-

“Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt and speculative doubt – a doubt borne out by the circumstances of the case.”