Abubakar Ibrahim V. The State (1991)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C.

On 2nd January, 1983, one Akinola Green, the P.W.1 was driving his car along Badagry Expressway. He got to a spot where he saw three men in army uniform, who stopped him and asked for a lift to a spot called Mile 2.

As the three men forcibly entered the vehicle and looking hostile, he told them he was not going to Mile 2. One of the men then dipped his hand in his (P.W.1’s) pocket and removed the money he had there. The two others demanded more money and he told them he had no more money on him.

They dragged him out of the vehicle and beat him telling him he was hiding his money somewhere. They ordered him back into his vehicle and one of them took control of the vehicle. They then drove towards Badagry up to when they got to a dark spot near Trade Fair Complex where they stopped, beat him again after dragging him out of his vehicle.

They asked him to choose between his life and his vehicle; he chose the former. After beating him more with an horse-whip, they pushed him into a ditch and drove away in his vehicle.

A passer-by gave him a lift to the Police Post at Satellite Town where he reported the incident. After reporting to the Police the P.W.1 was in the car of the helper along the same Badagry Expressway between the two gates to Satellite Town when he found his vehicle seemingly abandoned with its parking lights on. There were at that moment some policemen on patrol who were alerted. The car was not locked and the policemen decided to comb around for the uniformed men. As they were returning to the vehicle the three uniformed men were seen going towards the same vehicle. The police intercepted them, two of them escaped but the appellant was the one arrested. This is the evidence of the prosecution. The appellant denied any attack on P.W.1 and claimed total ignorance of the robbery.

The appellant’s story is that he went to visit his brother and father at Ikeja and was at Mile 2 waiting for transport to take him to Ojo Army Cantonment when police arrested him as a robber. He never gave the address of his brother at Ikeja, nor of his father nor even their names. His claim was that he left Ikeja at 6.30 p.m. and never got to Mile 2 before 10.30 p.m. the time he alleged he was arrested. In his voluntary statement to the police and in his sworn evidence at trial Court, the appellant gave no details as to the address he went to at Ikeja or the names of his father and brother he visited there. He however took pains to reveal he was a soldier with Pay and Records and showed the police his place of work and his superior officer, a major. Trial Court disbelieved the appellant’s story and found the case for the prosecution proved beyond reasonable doubt and thus convicted him for armed robbery and sentenced him to death.

He appealed to Court of Appeal which upheld the trial Court’s decision; thus the appeal to this Court.

The grounds of appeal concern identification, alibi and alleged contradictions in the evidence of the prosecution witnesses inadverted to by the trial Court and overlooked by the Court of Appeal.

The appellant formulated the following issues for determination in furtherance of the grounds of appeal.

“ISSUES FOR DETERMINATION

1. Whether or not the learned Justices of the Court of Appeal were right in upholding the trial court’s finding that an identification parade was unnecessary in this case.
2. Was the appellant’s conviction and sentence rightly upheld when his defence of alibi was not investigated by the Police
3. Was the appellant’s conviction rightly upheld in the face of contradiction in the evidence of prosecution witnesses.
4. Was it right to affirm the appellant’s conviction when the trial court had first considered the evidence of the prosecution and convicted the appellant before proceeding to consider the appellant’s defence
5. Whether the learned Justices of the Court of Appeal were right in not considering the various defences and issues raised by the appellant having regards to the principles enunciated in Opayemi v. State (1985) 2 NWLR (Pt.5) 101.”

Upon the facts of this case, would it be necessary to have an identification parade The complainant, P.W.1, after lodging his complaint about the three men in army uniform who stopped him and took over the driving of his vehicle from him forcibly, explained how he was a virtual kidnap victim and how he was beaten up by the three men. He explained further how he found his car abandoned with the sidelamps on by the road side and how an ambush by the police almost caught the three men. It is also clear on evidence how the appellant was arrested and his two companions escaped. In a circumstance as in this case, where the accused person was caught in trying to escape during the commission of the offence and the victim of the crime was present and positively identified the accused person, there will be no need for the formality of holding an identification parade.

The offence of robbery had been committed and it would seem the appellant and his two companions left the vehicle to attend to something else and were returning to the vehicle when they were intercepted by the police in the presence of P.W.1, the victim of the robbery. Thus not in all cases is identification parade necessary; and once the victim has immediately after the commission of the offence seen the accused or arrests him or joins in any other way in identifying him, it will be superfluous to line people up for identification. (See Okosi v. State (1989) 1 NWLR (Pt. 100) 642; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455).

In the instant case, the appellant was positively identified as one of the three men in army uniform who attacked him and the appellant was actually apprehended while his companions escaped.As for contradictions in the prosecution witnesses’ evidence, the principles governing this have always been well explained. If contradiction in the evidence of the prosecution goes to the root of the case, that is to say, the substance of the case, as to raise doubt in the mind of the Court, the Court should not convict. It is clear that if there is contradiction in evidence as to a material fact, that then goes to the root of the prosecution’s case as to raise doubt the benefit of which must be given to the accused person (Ejigbadero v. State (1978) 9 & 10 S.C. 81; Nwosisi v. State (1976) 6 S.C. 109).

In the case where the contradictions are not as to material facts to the charge against the accused person, such contradictions should not disturb the finding of guilt if sufficient evidence has been led on the material facts to the charge (Atano v. A-G, Bendel (1988) 2 NWLR (pt. 75) 201, 207; Kalu v. State (1988) 4 NWLR (Pt. 90) 503). In the instant case, the contradictions in the evidence of the prosecution are hardly noticeable and they are not on material facts to the case. They touch merely on how the vehicle was found.

The facts as to how the appellant was found in company of two others who are now at large, the evidence of how P.W.1 (the complainant) was robbed of his car and beaten up are completely uncontradicted – these are the material facts. The fact that the car was finally found by the road side remains uncontradicted. (See Enahoro v. Queen (1965) 1 All NLR 125; 149-150; Queen v. Ekanem (1960) 5 F.S.C. 14; (1960) SCNLR 39; Nasamu v. State (1979) 6-9 S.C. 153. It is therefore completely misconceived that mere contradictions on immaterial facts should vitiate prosecution’s case.

When an accused person raises the defence of alibi in his statement to the police, it must be investigated.

The burden of disproving alibi is immediately on the prosecution once the accused person has indicated he was, at the material period of the crime, not the one that committed the crime because he was somewhere other than locus delicti.

Whoever puts up the defence of alibi is indeed taking on himself a great risk because that seems to be the only defence that he can avail himself of. Once he contends he was not at the scene of crime he is accused of having committed, he must stand by that defence because he cannot turn round to say otherwise. For him to claim self-defence, provocation etc., will be in direct contradiction of plea of alibi.

The burden of proving alibi is however no more than alleging the whereabouts of the accused person and how he was there, who were there with him, what was he doing there etc. Then it is incumbent on the prosecution to rebut it by investigating the alibi. (Adedeji v. State (1971) 1 All NLR 75; and failure to investigate may be fatal on the prosecution’s case. (Salami v. State (1988) 3 NWLR (Pt.85) 670.

But despite this burden on the prosecution to investigate an alibi set up by the accused, it is not sufficient for the accused to just say he was somewhere else than the place of crime. Such alibi must be unequivocal as to the particulars of the accused person’s whereabouts at the time of the commission of the offence in question.

It is not enough to baldly allege the accused was somewhere else without specifically giving the address of that place, the person or persons he was with at that other place and the time he was at that place. If these particulars as to the whereabouts of the accused are not given the prosecution would not have a lead as to what to investigate in the alibi. What this connotes is that the alibi to be unequivocal must be complete as to the time, the place and possibly those persons at the place who could help the investigation by the prosecution as to the authenticity of the alibi. (Ikemson v. State) (1989) 3 NWLR (Pt. 110) 455; Salami v. State (1988) 3 NWLR (Pt.85) 670; Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16; Udo Akpan v. State (1986) 3 NWLR (Pt.27) 258.

It may be regarded as the duty of the accused, but it is the only burden on him to give his alibi and give it clearly so as to help the investigation. It is possible in some cases for the accused to refuse giving voluntary statement to the police before trial, in which case he will not then raise the alibi. But if at the trial an accused person who never raised an alibi when making his statement to the police, on oath in his defence raised the issue of his not being at locus criminis at the time the offence he is alleged to have committed took place raises a new issue entirely from alibi. For alibi is a defence raised before trial for police to investigate so as to decide its veracity; but once before the Court on trial, the accused person who raises a defence of his being elsewhere at the time the offence was being committed, has made an assertion he must prove.

But the general principle is that the accused must present his alibi and once he has given full particulars of the alibi the prosecution must investigate it to confirm it or disprove it. Failure to investigate when faced with the full facts of the alibi will vitiate the prosecution. (Nwabueze v. State (supra); Madogwa v. State (1988) 5 NWLR (Pt. 92) 60; Ukwunnenyi. v. State (1989) 4 NWLR (Pt. 114) 131; Onafowokan v. State (1987) 3 NWLR (Pt.61) 538; Wasari Umani v. State (1988) 1 NWLR (Pt.70) 274; Owsi v. State (1989) 1 NWLR (Pt. 100) 642; Bozin v. State (1985) 2 NWLR (Pt. 8) 465.

In the instant case the appellant, who took great pains showing the prosecution his place of work and showing them his superior officer in the armed forces, never for one moment divulged where he allegedly went to at Ikeja nor gave the names of his father and brother at the place. The time he alleged he was at Ikeja is totally at variance with the time the crime was committed. At best he attempted to put the police on a wild goose chase. He never raised a credible and unequivocal alibi. This issue cannot sway the proper evidence adduced by the prosecution. The ground of appeal raised on alibi therefore fails.

As for the issue about the horse-whip as weapon, on which we had full address by each counsel, it is pertinent to setout the words of 403 and 403B of the Criminal code of Lagos State:

“Firearms includes any canon gun, flint lock gun, revolver, pistol explosive or ammunition or other firearms whether whole or in detached pieces. “Offensive weapon” means any article apart from a firearms made or adopted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, and pistol, bow and arrow, spear cutlass, matchet, dagger, cudgel or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.”

Does a horsewhip fall within the genus of firearms It is neither a genus of “arrow, cutlass, matchet, dagger, cudgel, or piece of wood, metal, glass or stone capable of being used as offensive weapon.” Horsewhip is a whip for driving a horse by the rider. It is not made of wood nor is it made of iron, most are made of skins. As it was not tendered and no evidence of how a horsewhip is and how it can be used was before the trial Court, it cannot be held, as it was erroneously held, to be offensive weapon.

As the difference between ordinary weapon and offensive weapon is substantial for purposes of punishment under the law relevant to robbery under S. 402 Criminal code of Lagos State, the prosecution in this case failed to prove that the horse-whip is an offensive weapon to attract death sentence rather than imprisonment The onus is on the prosecution to prove beyond reasonable doubt every aspect of the offence. The best that was achieved was to prove robbery simpliciter.

For the foregoing reasons this appeal fails in part. The conviction under S.402(2)(a) is set aside and in its stead a conviction is substituted under S. 402(1) Criminal Code of Lagos State. The appeal thus succeeds in part and sentence of death under S. 402(2) of Criminal Code Law of Lagos State is substituted with sentence of twenty-one years imprisonment under S. 402(1) of the same Law.

SC.167/1990