Olayinka Afolalu V. The State (2010)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, JSC

The Appellant who was the accused person at the Ado-Ekiti High Court of Justice of Ekiti State, was arraigned on a 2 count charge of armed robbery –

“1. Robbing one Idowu Fanikun (F) of the sum of N225.00 (Two Hundred and Twenty Five Naira) while armed with offensive weapons to wit guns thereby committed and offence contrary to S.1 (2)(a) of the Robbery and Firearms Special Provisions Act CAP 390 vol. XXII Laws of the Federation of Nigeria 1990 as amended by Tribunals Certain Consequential Amendments Decree No. 62 of 1999.

2, Robbing one Mercy Ogunshakiu (F) of the sum of N1,750.00 (One Thousand, Seven Hundred and Fifty Naira) while armed with offensive weapons to wit guns thereby committed an offence contrary to S.1(2a) of the Robbery and Firearms Special Provisions Act CAP 390 Vol. XXII Laws of the Federation of Nigeria 1990 as Amended by Tribunals Certain Consequential Amendments Decree No. 62 of 1999.”

On the commencement of his trial; the Appellant pleaded not guilty to the 2 counts of the charge. The prosecution called 4 witnesses in its bid to prove the counts against the Appellant. At the close of the prosecution’s case, the Appellant elected to give evidence and called 3 other witnesses who testified in support of his defence.

From the evidence on record, the case of the prosecution was that on 27th April, 2002, the Appellant and 3 others still at large, while armed with guns carried out a robbery operation along Igede Road, Ilawe Ekiti in Ekiti State of Nigeria and robbed one Mercy Ogunshakin and raped 12 robbery gang.

In his defence, the Appellant denied participating in the act of armed robbery as charged and set up a defence of alibi by claiming that at the time the robbery was committed, he was watching video film with his friends in the house of one of such friends. At the conclusion of the trial, the learned trial Judge found the Appellant not guilty of the first count of the charge and accordingly discharged and acquitted him. However, as for the second count of the charge, the learned trial Judge found that the prosecution had proved its case against the Appellant whose defence of alibi was rejected following the positive and direct evidence of identification of the Appellant as one of the armed robbers who participated in the operation of 27th April, 2002 and therefore convicted and sentenced the Appellant to death according to the law. The Appellant’s appeal to the court of Appeal Ilorin was heard and dismissed in the judgment of that court delivered on 10th December, 2007. The present appeal in this court by the Appellant is against the affirmation of his conviction and sentence by the Court of Appeal. The only issue identified in the Appellant’s brief for the determination of the appeal in this Court is –

“Whether the accused was proved beyond reasonable doubt by the evidence adduced by the prosecution as the actual person that committed the offence of armed robbery at the house of the Complainant.”

This issue was adopted by the Respondent in the Respondent’s brief of argument.

In mobilizing support for the lone issue for determination, the learned Counsel for the Appellant complained that both the trial Court and the Court below have failed to observe some cardinal principles of law in the trial of the criminal case and in the handling of the Appellant’s appeal; that in the trial of the case, the Appellant by virtue of the case of Ameh v. The State (1978) N.S.C.C. 368, ought to have been presumed innocent until the Court determines otherwise at the end of the trial; that had the two courts below closely examined the defence of alibi raised by the Appellant, the evidence had clearly disclosed a cloud of doubt, the benefit of which ought to have been given to the Appellant to justify his discharge and acquittal on taking into consideration of cases like Ukpabi v. The State (2004) A.F.W.L.R. (Pt. 21S) 814 at 820; Gwawoh v. Commissioner of Police (1974) N.S.C.C.586 and Ikono & Ors. v. The State (1973) N.S.C .C. 352. Learned Counsel also accused the Court below of failing to consider other defences opened to the Appellant apart from the defence of alibi raised by him; that the evidence of the only witness who identified the Appellant, ought to have been treated with great caution in line with the decisions in Nwuzoke v. The State (1988) 1 N.S.C.C. 361; Laoye v. The State (1985) 2 N.S.C.C. 1251 and Offorlete v. The State (2000) A.F.W.L.R. (Pt. 12) 2081.

For the Respondent however it was argued that the Appellant’s defence of alibi had been successfully destroyed by the evidence of the prosecution placing the Appellant at the scene of the robbery at the time the Appellant claimed he was elsewhere; that the evidence of PW1 on the identity of the Appellant as one of the participants in the armed robbery was positive and unshaken; that as that evidence was believed and acted upon by the trial Court in convicting the Appellant and the court of Appeal having confirmed that finding, the complaint of the Appellant that the evidence of’ PW1 is not credible to support the conviction of the Appellant has no basis at all. The case of Eze v. The state (1985) 3 N.W.L.R. (Pt. 13) 429 was relied upon. Learned counsel pointed out that the fact that the robbery operation on the night of the incident lasted several hours during which PW1 interacted with the Appellant, the witness had sufficient opportunity to be in a position to identify the Appellant. The cases of Olalekan v. The State (2001) 18 N.W.L.R. (Pt. 746) 793 at 830 and Ajibade v. The state (1987) 1 N.W.L.R. (ft. 48) 205 were picked up in support of this submission. Learned Counsel concluded that the failure to conduct identification parade in this case or failure of the trial Court to look for corroborative evidence to support the evidence of PW1 who knew the Appellant before the date of the incident of the robbery, was quite unnecessary if cases like Ottis v. The State (1993) 4 N.W.L.R. (Pt. 290) 675 at 681, Ugwumba v. The State (1993) 5 N.W.L.R. (Pt.296) 660 at 674 are taken into consideration.

In the instant case, there is no doubt at all that the learned trial Judge who saw and heard the evidence of the witnesses called by the prosecution especially the evidence of PW1 who saw and identified the Appellant and the evidence of the Appellant and his witnesses in support of his defence of alibi, was satisfied with the evidence of the prosecution that the offence of armed robbery under Section 1(2)(a) of the Robbery and Fire-arms (Special Provisions) Act, 1990, had been proved beyond reasonable doubt against the Appellant when he said at page 86 of the record

“In conclusion I wish to state that the totality and grand summation of the evidence before me lends credence to the fact that the ingredients of the offence of armed robbery have been proved against the accused Person with particular reference to count 2 of this charge.

I am convinced beyond doubt that:

(1) There was a robbery at Igbede Road Ilawe-Ekiti on 27th April, 2002.

(2) That it was armed robbery.

(3) That the accused person standing trial in the instant case was one of the armed robbers,

The totality of the evidence before (sic) points unmistakably to the fact that prosecution led credible, reasonable, convincing evidence to prove their case against the accused person beyond reasonable doubt.”

These findings were confirmed on appeal by the Court of Appeal particularly with regard to the crucial evidence of identification of the Appellant as one of the participants in the robbery operation of 27Th April, 2002. I have no reason whatsoever to disagree with these concurrent findings of the two counts below on the role of the Appellant in the commission of the offence as charged. The attempt by the learned Counsel to the Appellant to find avenue for the escape of the Appellant from the grip of the law by attacking the evidence of the prosecution’s star witness PW1 who had been with the Appellant and his gang between 8.25 p.m to 1.00 a.m, had woefully failed as the evidence of the witness remained unshaken even under cross-examination.

The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial Court, that count is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resuIting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) S.C.N.L.R. 576; Fotoyimbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 N.W.L.R. (Pt. 506) 512. In the present case, the learned trial Judge having considered the entire evidence before him was left in no doubt whatsoever that the Appellant committed the offence of armed robbery to justify his conviction and sentence.

With regard to the Appellants’ defence of alibi, the law is indeed well settled that where, as against the defence of alibi raised by an accused person there is a virtual identification evidence of the accused by the prosecution witness which the Court accepted and believed, such evidence will effectively destroy the defence of alibi raised. See Njovens v. State (1973) 5 S.C, 17; Madagwa v. State (1988) 5 N.W.L.R. (Pt. 92) 60.In the case at hand therefore, the learned trial Judge was right, in my view, in accepting, believing and acting on the virtual identification evidence of PW1 who not saw and identified the Appellant whom she knew before the date of the incident but who also together with other members of his gang subjected the witness to sexual harassment and violence for a number of hours, clearly gave the witness enough opportunity to identify the Appellant; that the Appellant actively participated in the armed robbery operation of 27th April, 2002 to justify his conviction and sentence, is fully supported by the evidence. For the same reason, the Court below was quite right in affirming the conviction and sentence on the Appellant.

Finally, this appeal being one against concurrent findings of the High Court of Justice of Ekiti State and the Court of Appeal Ilorin Division, the law is trite that this Court will not interfere with such concurrent findings unless exceptional reasons have been shown by the Appellant to exist justifying such interference. See Manawa Ogbodu v. The State (1987) 2 N.W.L.R. (Pt. 54) 20. In the instant case, I see no exceptional reasons at all to warrant interfering with the concurrent findings of the Courts below. Consequently, I see no merit at all in this appeal. The appeal is dismissed and the conviction and sentence of death passed on the Appellant by the trial Court and affirmed by the Court below, are hereby further affirmed.

SC.193/2008