Ilodibe Uche V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment delivered by the Court of Appeal, Benin Division (the court below) on 21st February, 2013. Therein, the court below affirmed the judgment of the trial High Court which convicted and sentenced the appellant to death for the offences of conspiracy to commit armed robbery, armed robbery and illegal possession of firearms on 30th day of March, 2010.

The appellant was arraigned before the trial High Court on a four count charge of:

(1) Conspiracy to commit armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Volume 14 Laws of the Federation of Nigeria, 2004.

(2) Armed robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Volume 14 Laws of Federation of Nigeria, 2004 for robbing victim of the sum of N9,000.00 while armed with locally made pistol.

(3) Armed robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Volume 14 Laws of the Federation of Nigeria, 2004 for robbing the victim of a Nokia GSM telephone handset while armed with a locally made pistol.

(4) Illegal possession of Firearms, punishable under Section 2(3) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Volume 14, Laws of the Federation of Nigeria, 2004.

The appellant was alleged to have robbed at gun point, one Ndubuisi Bayem and Awele Bayem of the sum of N9,000.00 and a Nokia GSM telephone at their shop on Isioma Onyeaobi Way, Asaba on the 1st day of December, 2006.

On Monday, 2nd day of March, 2009, the four (4) counts were read and explained to the appellant who pleaded not guilty to each of the counts.

At the trial before Bozimo, CJ, the prosecution called four witnesses and tendered four exhibits admitted as Exhibits A, B, C and D. Exhibit A was a gun with which the appellant was alleged to have committed the offences alleged. Exhibit B relates to four live cartridges alleged to have been found on the appellant when he was arrested. Exhibit C was a statement made by the appellant to PW4. Exhibit D was a statement made by the appellant at the Delta State C.I.D Asaba.

At the close of the prosecution’s case, the appellant testified on his own behalf and raised the defence of alibi. He did not call any other witness.

The learned trial CJ dutifully garnered evidence and was thereafter addressed by counsel on both sides of the divide. In a considered judgment delivered on 30th March, 2010, the trial court found the appellant guilty. He was thereafter convicted and sentenced to death.

The appellant felt unhappy with the position taken by the trial court and appealed to the court below. On 21st February, 2013, the appeal was found unmeritorious. The judgment of the trial court was affirmed. As well, the sentence of death by hanging pronounced by the trial court on the appellant was also affirmed by the court below which dismissed the appeal.

The appellant felt dissatisfied with the judgment of the court below. He has decided to appeal, as of right, to this court. In this court, briefs of argument were filed and exchanged by the parties.

On 26th February, 2015 when the appeal was heard, learned counsel for the appellant adopted and relied on the brief of argument filed on 16th May, 2013. He abandoned issue 1 touching on conspiracy to commit armed robbery and rested the case on issue 2 relating to proof beyond reasonable doubt. He urged that the appeal be allowed.

The senior counsel for the respondent equally adopted and relied on the brief of argument filed on 18th July, 2013 and urged that the appeal be dismissed.

He further observed that issue of light or no light at the locus criminis is immaterial as the appellant was caught at the scene of crime. As well, he too, abandoned arguments canvassed by him relating to conspiracy to commit armed robbery and concentrated his armour on issue touching on proof beyond reasonable doubt.

To put the issue canvassed by the appellant in sharp focus, it reads as follows:-

“Whether the lower Court rightly affirmed the trial court’s decision that the prosecution proved the charges against the appellant beyond reasonable doubt. (Grounds 1, 3 and 4).”

On behalf of the respondent, the similar sole issue decoded for a due determination of the appeal reads as follows:-

“Whether the lower Court was wrong in affirming the judgment of the trial court that the prosecution proved the counts on the information beyond reasonable doubt.”

Let me state it at this point in time that the salient ingredients of the offence of armed robbery which the prosecution must establish to ground conviction are as follows:-

(a) That there was a robbery or series of robbery incident(s),

(b) That the robbers were armed, and

(c) That the accused persons were the ones who committed the robbery.

See the cases of State v. Adedamola Bello & Ors. (1989) 1 CLRN 370 and Bozin v. The State (1986) 2 NWLR (Pt.8) 465 at 469.

It has now become trite that the prosecution has the burden at all times in criminal matters to prove the guilt of the accused person beyond reasonable doubt. This requirement is as provided in Section 135(1) Evidence Act, 2011. The decisions in the cases of Woolmington v. D.P.P. (1935) AC 462 and State v. Oladotun (2011) 10 NWLR (Pt.1256) 572 are directly in point.

On behalf of the appellant, it was submitted that the prosecution failed to prove the ingredients of the offence of armed robbery beyond reasonable doubt as the prosecution’s case was fraught with contradictions on the manner by which the appellant was identified. It was observed that there was contradiction on who collected money from the victim. It was contended that PW1 and PW2 contradicted themselves on the source of light that enabled them to see the appellant whom they did not know before the date of the alleged robbery incident. While PW1 said the shop where the robbery incident occurred was dimly lit with a lamp, PW2 maintained that the room was dimly lit with a candlestick. Learned counsel asserted that same cast doubt on their evidence.

Learned counsel submitted that such doubt should be resolved in favour of the appellant. The cases of Yanor v. The State (1965) NMLR 387, Ibrahim v. The State (1991) 4 NWLR (Pt.186) 399 and Yongo v. The State (1992) 2 NWLR (Pt.257) 36 at 57 were cited in support.

Learned counsel submitted that the court below erred when it failed to set aside the decision of the trial court in the light of the fact that there was a doubt as to the identity of the appellant as the person who robbed the PW1 and PW2. Learned counsel felt that the court ought not to commit the appellant. In support, he cited the cases of Ejigbadero v. The State (1978) 9-10 SC 81 and Attah v. The State (2010) All FWLR (Pt.540) 1224 at 1246 wherein, this court pronounced that where there are conflicts, discrepancies or contradictions that are material in nature, that go to the root of the substance of the case, the court should not convict.

On behalf of the respondent, it was equally submitted with force that the prosecution has the abiding duty to prove its case beyond reasonable doubt as dictated by the provision of Section 135 of the Evidence Act, 2011. He maintained that the ingredients of the offence of armed robbery must be clearly established. In support, the cases of Abdullahi v. The State (2008) LRCN, (Vol.164) 97 at 113-114; Isibor v. The State (2002) 4 NWLR (Pt.759) 741, Ogba v. The State (1992) 2 NWLR (Pt.222) 164, and Nwosu v. The State (1986) 4 NWLR (Pt.35) 384 were cited.

On the issue of conflict in the evidence of PW1 and PW2 as to whether it was lamp or candle light that illuminated PW2’s store on the day of the robbery incident or whether it was the appellant who collected the stolen money from PW1; learned counsel maintained that same was carefully resolved by the court below. It was observed that the lower Court, in affirming the findings of the trial court, held that it was immaterial to the determination of the issue since the appellant was caught red-handed at the scene of crime.

It must be stated at this point that contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor or miniature contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to the substance of the matter. Trivial contradiction should not vitiate a trial. See Ankwa v. The State (1969) 1 All NLR 133; Queen v. Iyanda (1960) SCNLR 595; Omidade v. Queen (1964) 1 All NLR 233 and Sele v. The State (1993) 1 SCNJ 15 at 22-23 (1993) 1 NWLR (Pt.269) 276.

In putting to rest the point touching on contradiction, the court below at page 125 of the record, rightly found as follows:-

“The appellant’s counsel argued that while PW1 stated that the shop was dimly lit by a lamp, PW2 clamed that the shop was lit by a candle. I have read the record of appeal wherein both witnesses agreed that the incident happened at night and that the shop was dimly lit. In the con of the largely uncontroverted evidence of the prosecution, whether the shop was lit by a candle or a lamp is obviously immaterial. The issue of the appellant’s identification would have come in if he escaped the scene and was arrested in another area of town or on another day. His half-hearted retraction of Exhibits C and D cannot avail him in the light of the fact that he was apprehended on the spot with his hand in the cookie jar as it were, whether the shop was well lit or not is of no moment.”

The second area of surmised contradiction raised by the appellant’s counsel is the question of who actually collected the sum of N9,000 from PW1. As found by the court below, three people, including the appellant who pointed a gun at PW1 committed the offence. The issue of who actually collected the money and passed it to whom is irrelevant in view of the ingredients of the offence of armed robbery. It is quite clear that the surmised contradictions pinpointed on behalf of the appellant did not affect the credibility of witnesses in any manner giving the fact that the appellant was arrested at the scene of crime. As well, they did not relate to the substance and/or ingredients of the offence charged. No miscarriage of justice has been demonstrated to warrant a reversal of the judgment of the court below in favour of the appellant. I endorse the position taken by the court below. See Onubogu v. The State (1974) SC 1; Dibie v. The State (2007) 9 NWLR (Pt.1038) 30.

The next issue which was seriously canvassed by the parties relate to the defence of alibi tacitly raised by the appellant during the trial of the matter.

Learned counsel for the appellant observed that the appellant raised the defence of alibi during his examination in chief at the trial. He furnished details of his whereabouts at the time of the crime; according to counsel. He submitted that once an alibi has been raised, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. The cases of Hausa v. The State (1994) 6 NWLR (Pt.350) 281 at 302 and George v. The State (2009) 1 NWLR (Pt.1122) 325 at 344 were cited in support.

Learned counsel maintained that the prosecution did not make any attempt to verify or disprove the appellant’s defence of alibi. He cited the cases of Yanor v. The State (supra) and Bozin v. The State (supra) at page 481 in support. He asserted that the appellant was not cross-examined in respect of his evidence of alibi and that same amounts to an admission by the prosecution that the appellant’s defence of alibi is true.

Learned counsel for the respondent observed that the defence of alibi literally means that the appellant was not at the scene of crime on the day and time the robbery incident took place. The defence must be raised at the earliest opportunity, in most cases, in his extra-judicial statement to the police. Same would give the police the opportunity to investigate the alibi. He must be specific as to his whereabouts and those with him at the material time of incident. Where the prosecution pins him to the scene of crime, the onus shifts to the appellant to lead evidence to the contrary. The cases of Esangbedo v. A-G Ondo State (1989) 4 NWLR (Pt.73) 57; Balogun v. A-G Ogun State (2002) 94 LRCN 260; Njovens v. The State (1973) 5 SC 17 and Odu v. The State (2001) 5 SCNJ 115 at 120 were cited in support.

Learned counsel observed that it is the case of the prosecution which was accepted by the trial court and affirmed by the court below that the appellant did not tell the police in his extra-judicial statements – Exhibits C and D that he was arrested by the police on his way to buy fuel for his generator. Further, the appellant was apprehended at the scene of crime soon after the robbery incident. A locally made pistol and four expended cartridges were recovered from him at the scene of crime.

Learned counsel for the appellant maintained that the appellant was not cross-examined on the issue of alibi raised by him in the open court. He referred to page 47, lines 16-23 of the record of appeal. He urged the court to affirmed the findings of the lower Court on this issue.

It should be stated clearly at this point that alibi, literally means elsewhere. It is a defence by which an accused person alleges that at the time when the offence with which he was charged was committed, he was elsewhere. Notice of intention to raise the plea of alibi must be given by the accused at the earliest opportunity preferably, at the investigation stage to enable the prosecution investigate same. He must furnish his whereabouts and those with him at the material time of incident. Failure to investigate may lead to acquittal. See Yanor v. The State (supra), Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. The State (1973) 1 NMLR 331; Odu v. The State (supra) at 120; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92; Adio v. The State (1986) 3 NWLR (Pt.31) 714; Patrick Njovens v. The State (1973) NMLR 331 and Okoduwa v. The State (1988) 2 NWLR (Pt.76) 333.

As found by the court below, the appellant belatedly raised the defence of alibi for the first time when he gave evidence in his own defence on oath at his trial. He did not raise the defence of alibi at the earliest opportunity to enable the prosecution investigate same. He so acted to his own chagrin. No burden shifted on the police to investigate in the circumstance. The plea of alibi tacitly raised in the open court was to no avail.

The above is still not the end in respect of this issue. The appellant made two confessional statements – Exhibits C and D wherein he admitted all the ingredients of the offence. The evidence adduced by the PW1 and PW2 which corroborate the admissions in Exhibits C and D pinned the appellant to the scene of crime. The so-called plea of alibi put up by the appellant, naturally crashed. See Patrick Njovens v. The State (supra).

The court below was in order in finding no merit in the issue touching on the plea of alibi tacitly raised by the appellant. I endorse same.

The two courts below made concurrent findings on all crucial issues canvassed by the parties in this appeal. They have not been shown to be perverse or against the current of plausible evidence adduced as manifest in the record. I shall not interfere with same as it is not in the character of this court to so do. See Igwe v. The State (1982) 9 SC 174; Shorumo v. The State (2010) 12 SC (Pt.1) 73 at 96, 102; Victor v. The State (2013) 12 NWLR (Pt.1369) 465 at 485.

No doubt, the prosecution proved all the essential ingredients of the offence of armed robbery beyond reasonable doubt. See Woolmington V DPP (supra) at 462. All the three ingredients of the offence charged as stated earlier on in this judgment were clearly established. It was idle to have argued to the contrary. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523, Abogede v. The State (1996) 5 NWLR (Pt.448) 270 at 276. I resolve the sole issue canvassed by the parties against the appellant and in favour of the respondent.

On the whole, I find that the appeal is devoid of merit. It is hereby dismissed. The judgment of the court below delivered on 21st February, 2013 in which the judgment of the trial court delivered on 30th March, 2010 was affirmed is hereby confirmed by me.

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SC.167/2013