Lawrence Ogbodi Odidika & Anor V The State (1977)

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A. R. ALEXANDER, C.J.N.

The appellants were the first and second accused persons amongst seven accused persons tried by a tribunal pursuant to the provisions of the Robbery and Firearms (Special Provisions) Decree 1970 No. 47 of 1970, as amended (hereafter referred to as the Decree”) on charges of (1) robbing one Sylvanus Mbama of a motor vehicle whilst armed with offensive weapons and (2) wounding him at or immediately before the time of the robbery. The other five accused persons were acquitted and discharged but the appellants were convicted and sentenced to death on both counts under the provisions of the Decree. Each appealed against his conviction and sentence.

Learned counsel for the appellants having abandoned his original ground 2 and grounds 3 and 4 of his additional grounds of appeal, argued the following grounds-

“1. The Tribunal erred in law in not making a finding about the age of the 1st appellant although there was evidence that his age was 15 years, and thereby failed to apply the provisions of the Children and Young Persons Act and Section 368 of the Criminal Procedure Act.”

“2. The Tribunal erred in law when it failed to consider the defence of alibi raised by both 1st and 2nd appellants.”

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“5. The Tribunal erred in law when it failed to make a specific finding on the time element between the first alleged assault by 1st and 2nd appellants (which was disbelieved), and the alleged attack on P. W. 3 when there was abundant evidence of overlap and this failure came to the wrong conclusion”.

“6. That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence”.

In their written judgment, the tribunal said –

“As to the incident, the members are satisfied that some thieves blocked the road on the night in question with intent to rob people and that this Sylvanus Mbama was robbed of his motor-cycle No. ECL 2421 on the 4/4/74 and the 1st and 2nd accused took part in the robbery. They were recognised by this Mbama on the night in question by the aid of the bright moonlight and by the aid of the light of his motor cycle and during the identification parade”.

In relying on the evidence of identity given by Sylvanus Mbama, a teacher and headmaster, in convicting the two appellants, the tribunal stated further that they had considered his evidence and his demeanour in the witness box and were satisfied that he recognized the 1st and 2nd accused on the night in question. The members said that they came to this conclusion after taking into account that the complainant Sylvanus Mbama also identified the 1st and 2nd accused during the identification parade made up of 15 persons. We are satisfied that these findings of the tribunal are amply supported by the evidence adduced at the trial and we found no substance or merit in the submissions of learned counsel for the appellant in respect of grounds 2, 5 and 6 and indicated at the hearing of the appeal that we found it unnecessary to call on learned counsel for the respondent in respect of these grounds.

However, in regard to the defence of alibi (ground 2) raised by each of the two appellants, who denied committing the offences, the 1st appellant testified that at the material time of the incident, he was at home. The 5th accused at the trial, Odidika Ikeagbajogu (father of the 1st appellant) who was acquitted and discharged said while under cross examination, for the first time, that the 1st appellant was in his house, on the date this incident happened. The 2nd appellant, also for the first time while under cross-examination, stated that on the night of the incident, he was sleeping in his house. He did not call any witness to support his alibi. The Supreme Court has held time and again that, on the defence of alibi, the law is that evidence of the alibi should not be disregarded by a trial court unless there is stronger evidence against it and that, while the onus is on the prosecution to prove the charge against an accused person, the latter has the duty of bringing the evidence on which he relies for his defence of alibi. See Yanor & Anor v. The State (1965) NMLR 337; Nwosisi v. The State (1976) 6 S.C. 109. Having regard to the ample evidence and reasoned findings of the tribunal in regard to the issues of identity of the 1st and 2nd appellants and their participation in the offences of which they were convicted, we hold that there is no substance or merit in the submissions of learned counsel for the appellants in regard to the defence of alibi raised by each of the two appellants and this ground of appeal therefore fails.

The appellants also testified that the 4th prosecution witness, Clement Emerole, bore them malice because of a dispute between him and members of their family about the ownership of an Iroko tree which led to a case in court. The tribunal, after fully considering this issue, rightly in our view, rejected this defence in arriving at their verdict.

As regards ground 1, however, it does not appear from the record of appeal that the tribunal gave the necessary consideration to the question of the age of the 1st appellant, who testified at the trial that he was 15 years of age and whose testimony was corroborated by his father Odidika Ikeagbajogu the 5th accused at the trial. Further, no finding as regards the age of the 1st appellant was made in the judgment of the tribunal. The question of age is material as regards the sentence of death imposed on him, having regard to the provisions of Section 368 (3) of the Criminal Procedure Act, Cap. 43 of the 1958 Edition of the Laws of the Federation of Nigeria and Lagos. Section 368(3), before its amendment (in its application to Lagos State) by the Criminal Justice (Miscellaneous Provisions) Decree 1966 No. 84 of 1966 provided as follows-

(3) where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the pleasure of the Head of Federal Military Government and if so ordered he shall be detained in accordance with the provisions of Part XLIV notwithstanding anything to the contrary in any written law.

Section 420 of the Criminal Procedure Act, also before its amendment (in its application to Lagos State) by Decree No. 84 of 1966, provided as follows –

“Where an offender found to have committed a capital offence has not attained the age of seventeen years the provisions of subsection (3) of Section 368 shall apply”.

However, Rule 18 of the Robbery and Firearms Tribunal (Procedure) Rules 1975 provides as follows-

“18. Where these rules contain no provision in respect of any matter relating to or connected with the trial of offences under the Decree the provisions of the Criminal Procedure Act shall, with such modifications as the circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally.”

We think it is pertinent at this stage to make the following observations. The provisions of Section 368(3) of the Criminal Procedure Act (before the amendment referred to above) are in this respect identical in substance with the provisions of Section 368(3) of the Criminal Procedure Law, Cap 31 of the Laws of the former Eastern Nigeria (1963 Edition) before its amendment by Edict No. 22 of 1972, in force at that material time (as amended) in the former East-Central State where the offences were committed. The effect of the corresponding amendments to Section 368(3) of Cap. 43 (in its application to Lagos State) and to Section 368(3) of Cap. 31 is to provide that it is the age of the offender at the time the offence was committed, and not at the time of his conviction, which is material. In the Queen v. Baganza (1960) 5 FSC1, it was expressly held, in construing identical provisions in Section 368(3) of the Criminal Procedure Ordinance of the former Northern Region that it is the age of the offender at the time of his conviction which was material and the court suggested an amendment to make the age of the offender at the date of the offence the deciding factor.

However, unless there is any other amendment to which our attention has not been drawn, it would appear that the amendment to Cap. 43 would apply to trials under the Decree in Lagos State, by virtue of rule 18 cited above, while the amendment to Cap. 31 would not apply to trials under the Decree in the former East-Central State or the present Anambra and Imo States.

Learned counsel for the 1st appellant submitted that since the tribunal failed to make a specific finding as regards the age of the 1st appellant, this court should ‘construe’ the evidence of age on the record of appeal in favour of the 1st appellant. Learned counsel for the respondent, on the other hand, submitted at first that it was necessary for this court to appoint a special commissioner under Section 33(d) of the Supreme Court Act 1960, No. 12 of 1960, to determine the age of the 1st appellant, a course which was adopted in Oladimeji v. The Queen (1964) NNLR 31, but he later conceded that, in the particular circumstances of this case, there was no need for the appointment of a special commissioner.

Both the 1st appellant and his father Odidika Ikeagbajogu, the 5th accused at the trial, testified that the 1st appellant was a school-boy and only fifteen years of age. The 1st appellant was convicted and sentenced to death within ten days thereafter. The evidence as regards the age of the 1st appellant was not challenged by the prosecution during cross-examination of the 1st appellant and of his father or at all, or by the Chairman of the tribunal who questioned the 1st appellant but not with reference to his age. Although the tribunal did not make a specific finding or express a positive opinion about the age of the 1st appellant, they did not reject the evidence on this point either expressly or by implication.

In the circumstances, we hold that it is reasonable to infer that the 1st appellant was under seventeen years of age at the time of his trial, conviction and sentence, as well as at the time of the commission of the offences. We hold further, that the combined effect of Section 368(3) of the Criminal Procedure Act in its general application to the Federation including the former East-Central State (and not as amended in its application to Lagos State only) and rule 18 of the Robbery and Firearms Tribunal (Procedure) Rules 1975, is that since the 1st appellant was under seventeen years of age at the time of his conviction, sentence of death should not have been pronounced on him, or recorded; and the tribunal should in lieu thereof have ordered that he be detained during the pleasure of the Military Governor of Imo State.

The appeal of the 1st appellant against his conviction is accordingly dismissed, and his conviction is affirmed, but his appeal against the sentence of death imposed on him is allowed and in lieu thereof it is ordered that he be detained during the pleasure of the Military Governor of Imo State, in accordance with the provisions of Part XLIV of the Criminal Procedure Act, as modified to suit the circumstances of the case.

The appeal of the 2nd appellant is dismissed and the sentence of death imposed on him is affirmed.

Other Citation: (1977) LCN/01768(SC)