Taofeek Oyebola V. The State (2007)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered at the High Court of Justice, Abeokuta, Ogun State of Nigeria on 2nd August, 2002. In the judgment, the appellant was found guilty of the offences of conspiracy and armed robbery and was sentenced to death by hanging. The appellant felt irked with his conviction and sentence and has appealed to this court.

The appellant and the complainants, at the material time, resided at Olumogbe village in Asero, Abeokuta in Ogun State. Sequel to a string of armed robbery attacks between January and July 2000, the residents formed a community association and a vigilante group to check the incessant activities of the robbers. Reports of the robberies were made to the Police by the complainants. But none of them gave the identities of the robbers. They did not give any indication that they knew any of the robbers.

In August 2001, about 14 months after the last robbery incident, the community association wrote a petition to the police complaining about the menace of armed robbers in their area. The name of the appellant was, for the first time, mentioned in the petition as a member of the robbery gang that carried out the series of robberies from January to July 2000. The reason given by the complainants for being extremely tardy in mentioning the name of the appellant was that he threatened to deal with them if they dare mention his name. The same complainants had earlier on surreptitiously mentioned the appellant’s name to OPC, a sanguine extra judicial body and one Awikonko who announced the appellant’s name in Ogun State Radio. The appellant said he visited OPC and their boss advised him to settle with his community accordingly. He was not put out of circulation by OPC. As well, OPC did not hand him over to the Police.

The appellant was charged to court on four counts of conspiracy and armed robbery in September, 2001 sequel to the petition written by the community. At the trial, the prosecution called four witnesses. The appellant testified on his own behalf.

The learned trial judge was duly addressed by counsel on both sides. In the reserved judgment handed out on 2nd August, 2002, the trial Judge found the appellant guilty of the offences of conspiracy and armed robbery and convicted him. Thereafter, he was sentenced to death by hanging.

As stated earlier on, the appellant felt unhappy with the stance posed by the learned trial judge and has appealed to this court. The original Notice of Appeal was filed on 12th August, 2002. And by leave of this court, three additional grounds of appeal were filed on behalf of the appellant.

On 23rd January, 2007, when this appeal was heard, learned counsel on both sides adopted and relied on the briefs of argument filed on behalf of the parties. Two issues were distilled for determination by the appellant.

They read as follows:

“1. Whether it is proper to convict in the face of an uninvestigated alibi.

2. Whether the prosecution evidence is reliable and proved the guilt of the appellant beyond reasonable doubt.”

Two issues couched on behalf of the respondent read as follows:

“1. Whether the appellant’s defence of alibi was properly considered by the learned trial judge.

2. Whether the prosecution proved the case against the appellant beyond reasonable doubt.”

Arguing issue 1, learned counsel for the appellant observed that the offences for which the appellant was charged and convicted were alleged to have been committed on 19th January, 2000; 26th March, 2000 and 4th July, 2000 respectively. He maintained that the appellant, both in his statement to the police and evidence at the trial, stated that he was at home with his family and tenants on the stated dates. Learned counsel submitted that the appellant thereby raised a defence of alibi. He cited the case of Nwabueze v. State (1986) 4 NWLR CPt.56) 16 at 28.

Learned counsel further submitted that the evidential burden of establishing alibi is discharged when an accused sets it up at the time of investigation and it must be unequivocal. He cited Salami v. State (1988) 3 NWLR (Pt.85) 670. He felt that the appellant discharged the burden on him to establish his alibi in his statement to the Police and evidence at the trial court. Learned counsel opined that the appellant gave the particulars of the time, place and the persons in whose company he was at the time of the alleged offences.