Kareem Olatinwo Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant who was the 1st accused person and three others were convicted by the Oyo State High Court sitting in Ibadan on 28/6/2002 and sentenced to death by hanging on charges of conspiracy to commit armed robbery and armed robbery contrary to sections 5(b) and, 1(2) of the Robbery and Firearms (Special Provisions) Act cap 398 Vol. xxii Laws of the Federation of Nigeria 1990. They appealed to the Court of Appeal, Ibadan Division which was dismissed on 30/3/2011. This is a further appeal from that decision. The Notice of Appeal containing five grounds of appeal was filed on 29/4/2011 from which two issues were formulated namely:-

1. Whether the prosecution proved its case beyond reasonable doubt; and
2. Whether the Court below was not in error when it affirmed the judgment of the Trial Court that the defence of alibi did not avail the appellant.

The respondent also formulated two issues which are similar in content. They read thus:

1. Whether the Court of Appeal was right in affirming the findings of the Trial Court that the prosecution had proved the guilt of the appellant beyond reasonable doubt.
2. Whether the Court of Appeal was right in affirming the findings of the conclusions of the Trial Court that the defence of alibi did not avail the appellant.

Learned counsel for the appellant contended that before an accused person can be convicted of a criminal offence, especially murder, the prosecution must prove its case beyond reasonable doubt by virtue of Sections 138 Evidence Act and Section 36 (5) of the 1999 Constitution (as amended). He cited the following cases in support: Orji vs State (2008) vol. 6 MJSC 169 at 172; Aruna vs State (1990) 6 NWLR (pan 155) 125; Alonge vs I.G.P. (1959) SCNLR 516; Ayub-Khan vs State (1991) 2 NWLR (Part 172) 127 at 133-134; I.G.P. vs Oguntade (1971) 2 ALL NLR II, Akinfe vs State (1998) 3 NWLR (Part 85) 729.

He said that proof beyond reasonable doubt means that every ingredient of the office has been established namely:-

(i) That there was a robbery

(ii) That the robbery was an armed robbery; &

(iii) That the accused was the robber or one of the robbers. He submitted by citing Alabi vs State (1993) 7 NWLR (Part 307) 511, that if there is a failure to establish one element of the offence, then there is a failure to prove the case beyond reasonable doubt. He analysed the evidence of PW1, PW2, PW3, PW4 and PW5 and submitted that a critical examination of the record reveals that the appellant did not participate or conspire with any other person in the alleged robbery that took place on 19th May, 1999. He maintained that from the evidence given by PWL, PW2, PW3 and PW4 the police had decided on the appellant’s fate before being charged to court. He contended that the case was a fabrication as can be deduced from the totality of the evidence elicited by the prosecution witnesses and relied on Abeke Onofowokan vs State (1987) 7 SCNJ 233 at 254 as defined by Oputa JSC. He also submitted that the evidence of PW1 – PW4 that they saw the 1st accused during the robbery contradicts their written statements to the effect that they did not see him and this is fundamental and a core issue as to whether the appellant actually participated in the robbery. He also submitted that where evidence for the prosecution contradicts itself, it must be resolved in favour of the accused and also where there are circumstances which create doubts in the mind of the court such doubts ought to be resolved in favour of the accused person as was decided in Bozin vs State (1985) 2 NWLR (Part 8) 465 at 467 and Peter vs. State (1997) 3 NWLR (Part 496) 629.It was pointed out that the alleged stolen goods and money were not tendered in evidence at the trial court and the respondent failed to give a reasonable explanation for the non-production of the stolen items. He argued that since the appellant was not caught red-handed nor seen at the scene of the crime, his appeal is distinguishable from the case of Oluwatoba vs The State (1985) 1 NSCC 306 at 307 where the Court held that the car that was stolen was not material since the accused was caught red-handed immediately after the commission of the offence.

On the issue of alibi, learned counsel submitted that once an alibi is raised, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt and placed reliance on Almu vs State (2009) 4 – 5 SC (Part II) 33; Adedeji vs The State (1971) ALL NLR 75; Eze vs The State (1976) 1 SC 125; Bashaya vs The State (1998) 5 NWLR (Part 550) 351; Omotola vs The State (2009) ALL FWLR (Part 464) 1490. He said that the alibi raised by the appellant was never investigated and submitted that where an accused person has raised a defence of alibi and clearly stated his whereabouts before the trial commences and the prosecution fails to take any steps to verify or disprove it, the Court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. He argued that the defence of alibi was not properly considered by both the Trial Court and the court below and this Court has jurisdiction to intervene and or re-appraise the case of alibi afresh in order to prevent a miscarriage of justice. The following cases were relied upon for this submission:

Amusa Opoola Adio & Anor vs The State (1986) 2 NWLR (Part 24) 581; Oguonzee vs State (1998) 4 SC 110; (1998) 5 NWLR (Part 551) 521 at 540; Maje vs Stoceo (1968) 1 ANLR 141 AT 149; Woluchem vs Gudi (1981) 5 SC 291 at 295; Shehu vs State (2010) 22 WRN 1 at 9 and Oludamilola vs State (2010) 15 WRN 1 at 3. He urged this Court to discharge and acquit the appellant based on the following reasons:

(a) That the ingredients of the offence of robbery were not proved by the prosecution beyond reasonable doubt as required by law

(b) Critical examination of the record of appeal reveals that the appellant did not participate in the alleged robbery

(c) The defence of alibi raised by the appellant was not investigated by the police

(d) Both the Trial Court and the lower court failed to properly consider the said defence of alibi.