Sunday Madagwa V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C. 

The Appellant was charged at the Oshogbo High Court of Oyo State with armed robbery contrary to sub-section 2(a) of Section 1 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by the Robbery and Firearms (Special Provisions) (Amendment) Decree (No.2) of 1974.

The particulars of the offence were that the appellant and two others on or about the 21st day of June, 1979 at Arola Village near Ede, in the Oshogbo Judicial Division, whilst armed with offensive weapons – to wit guns, robbed one Olayele Usiola (male) of a peugeot 504 Saloon car No. OD.8511.

After due trial before that Court, he was convicted and his subsequent appeal to the Court or Appeal was dismissed. This is a further appeal from the lower court.

The case for the prosecution rested on the evidence of four eye-witnesses. The first of these witnesses was the 4th P.W., he was the driver of the taxi cab allegedly stolen. According to him, on the 21st day of June, 1979; he left Ondo for Ile-lfe at about 6.00a.m and on getting to Ife, he saw the appellant and two others standing opposite the University of Ife Teaching Hospital. They hailed his taxi and asked to be taken to Ede town to collect their sick mother. After they had agreed on the fares, the three men entered the car,- the appellant sat in the front seat next to the driver, whilst the other two sat at the back.

At a village near Ede, the 4 P.W. was asked to stop, and the appellant alighted, ostensibly to fetch his sick mother. In the meantime, the driver had turned round the car in readiness for the return journey. The appellant soon returned but without his mother. On getting to the car, he set upon the driver, and wrested the steering wheel from him.

The appellant and his colleagues then dragged the 4 P.W. out of the car, and at this stage, the three of them brought out their guns – apparently to – show the 4 P.W. what they would do if he offered any more resistance. Eventually, they drove off in the taxi. After they had left, the 4 P.W. reported the incident to the Police at Ede. Later, on the 18th day of October, 1979, he attended an identification parade at the Police Station, Ibadan and there he identified the Appellant and his two colleagues as the persons who had robbed him of his taxi-cab.

The other eye-witnesses were the 1st, 2nd and 3rd prosecution witnesses, and they saw the appellant with the stolen car a few hours after the robbery. According to the 1st P.W., at about 5.00p.m. on the day in question, she was returning from her farm when she saw a car parked in the compound. She raised alarm and the villagers came round. There were six persons inside the car and the appellant was one of them. She knew the appellant very well. because he was born in that Village, (UGBORHEN), although he later went and settled in AMUKPE Village. When the Appellant and others alighted from the car, the appellant came to her and asked for N200.00 which they needed to repaint the car. 1 P.W. told him that she had no money. Following this, they all then asked the 1st P.W. to give them the key to her house. At this stage, she ran away from them and went to report the incident to the Village Head – 2nd P.W.

Sometimes later, the Village Head saw the car and stopped it. He told the occupants that he had received a complaint from the 1st P.W. and asked them what was the matter. The appellant spoke sharply to the Village Head and asked what right he had to query them. When the Village Head tried to speak further, the Appellant asked him to shut up.

At this stage, the 2nd P.W. blew an alarm to summon his people, but before the Villagers came, the appellant and his colleagues had run away. A few hours after this, the Appellant and his colleagues were again seen with the taxi-cab at a road block and stopped by two night guards. 3 P.W. was one of the guards and he stated that at about 1.00 a.m. on 22nd day of June 1979 they stopped a car with six men and questioned the occupants. One of the men called ‘AFRO’ said that he was the owner of the car, and that they were coming from Ugboren.

When the guards searched the occupants, they recovered three locally made pistols from them; in consequence of this, they handed over the six men to the Police at Sapele. That same day the Appellant made a statement Exhibit ‘J’ to the Police.

At the close of the case for the prosecution, the Appellant testified in his defence. His evidence was short. This is what he said:

“SUNDAY MADAGWA: Sworn on the Bible and states in English. I live at AJANKAWA near Foam Industry AMUKPE, SAPELE. I am a cook. I do not know the 1st P.W. IYAWODE EGAGANYAN. I remember 21/6/79. I was inside my house. I saw Moses Dukpe alias AFRO in a taxi 504 saloon. I also saw Felix Okporie in the vehicle. Moses Dukpe claimed the ownership of the vehicle. Felix Okporie drove the vehicle. I have never seen 4th P. W. before.”

He admitted that he made a written statement, Exhibit J but he denied that he took part in any robbery.

I shall return to Exhibit J later in this judgment, but it is appropriate at this stage to refer to some parts of the said statement. In Exhibit J, the appellant stated that

he was in his house on 21/6/79 when one Moses Dukpe (alias AFRO) came to show him a Peugeot 504 Saloon taxi which he had just bought. Afro was accompanied by the 1st accused.

The statement then went on to state:

1. That Afro said that he was looking for some money to enable him repaint the taxi in the colour of Bendel State taxis.
2. That he was going to see his brother at Ugborhen about the money and he invited the appellant to go with him.
3. That there were six of them in the car, and 1st accused was the driver.
4. They stopped at various places and at UGBOREN Village. There, Afro called on his brother and asked him for N300.00 to repaint the car, but the brother told him that he had no money to spare.
5. They left Ugborhen at about 8.00 p.m. and sometime later they were stopped at a road block and accused of being thieves.
6. When all of them were searched, three guns were recovered in the pockets of Afro, Wilson Edemo, and the driver i.e. the 1st accused.
7. The six of them were handed over to the Police, but nothing illegal was recovered from him.

It will be appreciated that at the time that the appellant made the statement Exhibit J, the theft of the taxi cab had not been discovered and so he made no statement about the incident at Ede in Oyo State. However, at the close of the case for the defence, Counsel addressed the Court.

In his judgment, the learned trial Judge Oloko J., carefully considered the facts of the case and came to the conclusion that the evidence against the appellant was ‘overwhelming.’ The trial Judge also considered the defence of alibi which the appellant had raised and after referring to several authorities on the point, he held the view that the prosecution had successfully dislodged the alibi set up by the appellant. He therefore found him guilty of the offence as charged.

The appellant was dissatisfied with that judgment, and appealed to the Court of Appeal. One of the two questions canvassed in that Court was:

“Whether the learned trial Judge was right in holding that the defence of alibi set up by the Appellant had been dislodged by the prosecution when there was no evidence that the alibi was investigated by the prosecution.”

In dealing with that issue, the lower Court, per Onu, J.C.A., stated as follows:

“Under our law, it is not the duty of an accused person to prove alibi, but he has the onus to bring evidence on alibi, which when considered with the case for the prosecution, creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden is far less than in Civil cases. As there are no statutory provisions on alibi, in Nigeria reliance is placed on English and common law cases – see Mohammadu Chewnloh v. The State (1986) 2 NWLR (Pt.22) 331-332. In the case in hand the learned trial Judge, in my view decided the guilt of the appellant was proved beyond reasonable doubt by the dislodgement of the alibi set up by the appellant based on circumstantial evidence. At page 46 lines 6-10 of the trial courts’s record he has this to say:

“I believe and accept the evidence of the 1st, 2nd and 3rd prosecution witnesses. The cumulative effect of their evidence was that the 2nd and 3rd accused persons were found inside Exhibit A’ on 21/6/79 few hours after Exhibit A had been robbed by alleged assailants.”

Appellant’s mere assertion that he was in his room does not discharge his burden as this was shown to he false through evidence proffered by witnesses.-”

Further on in his judgment, the learned Judge said as follows:

“In the case in hand, P.W4 had identified the appellant positively, at an identification parade as one of the three men who robbed him of Exhibit A at gun point at Arola near Ede. It was not a dock identification which ought to be frowned upon as inappropriate and of little value. See R. v. Cartwright 1914 Cr. App. R.219; Sunday Anyanwu v. The State (1986) 5 NWLR (Pt.43) 612. Some hours later, P.W.1 saw appellant and two others in the same car at her village Ugborhen near Sapele. So did P.W.2 and P.W.3 thereafter and on the same day. Appellant could not therefore be in his room for the whole day of 21st June, 1979 and equally float like a spirit to Arola, Ede, Ugborhen and Okuovo No.2 near Sapele at the same time. Hence, the alibi claimed by appellant was logically demolished -see Patrick Njovens & Ors v. The State (1973) 5 SC. 17 at 65.”

In my view, the lower Court’s treatment of the law relating to alibi was correct. But in a further submission to the Court of Appeal, Counsel contended that a rejection of the defence of alibi does not amount to proof of the prosecution’s case; again, this is how the lower court dealt with that submission. It stated that;

“On the rejection of alibi not amounting to proof of prosecution’s case, I am satisfied that where as in the case in hand the prosecution has proved its case beyond reasonable doubt by producing clear and strong evidence even of one prosecution witness of identification of the appellant with the crime, a conviction obtained thereby is unimpeachable. In fact, in the case on hand, the application of s.148(a) of the Evidence Act becomes inevitable.

That section says:

“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and private business, in their relation to the facts of the particular case and in particular the court may presume –

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

“In the case in hand, the identification of the appellant by P.W.4 at the parade dovetailing the evidence of P.W.1, P.W.2 and P.W.3 at other settings the same day of the offence of robbery, so fixed him as one of the perpetrators of the robbery of exhibit A in which he was found with his confederates, that the proof of the prosecution’s case was so cogent and convincing that it amounted to proof of a proposition ‘with the accuracy of mathematics’”

see R. v. Taylor & 2 Ors. 21 C.A.R. 20 at 21. It is no derogation of proof to say that the evidence was circumstantial.

The learned trial Judge owes it as a duty to weigh the evidence for the prosecution against that for the alibi, and this he did in the case on appeal herein. He was left in no doubt about appellant’s guilt. So am I. The proof of the case in my view had gone beyond the stage of suspicion for any tribunal to so regard it; it was cogent, convincing and overwhelming – see Edet Obosi v. The State (1965) NMLR 129 and R. v. Teper (1952) A.C. 480 at 489.”

After the impeccable and learned analysis of the whole appeal, the lower Court went on to dismiss the appeal as lacking in substance, but it is the reference to section 148(a) of the Evidence Act that has given rise to this further appeal.

Originally, two grounds of appeal were filed, but at the hearing of this appeal, his Counsel, Otunba Ajayi-Okunnuga, asked for leave to withdraw those grounds and to substitute only one ground of appeal which reads as follows:-

“Ground of Appeal:

That the learned justices of the Court of Appeal erred in law, when they held erroneously that section 148(a) of the Evidence Act Cap. 62 Laws of Nigeria inevitably applied, and therefore confirmed the conviction and sentence passed on the appellant by the trial Judge OLOKO, J.

Particulars:

(a) That their Lordships the Justices of the Court of Appeal erred in law and they misdirected themselves when they held that proof with mathematical accuracy constitutes proof as required by the law. See page 96 lines 5 – 7 of the records.

(b) Their Lordships erred in law when they failed to realise that an ‘alibi’ is a complete defence in law, whereas they were well aware from the records that the appellant was not found at the ‘locus criminis’.

(c) Their Lordships the Justices of the Court of Appeal erred in law when they confirmed the conviction and sentence passed on the appellant, whereas appellant was not identified with the crime; and their Lordships misdirected themselves when they held that ‘the other selling so fixed the appellant as one of the perpetrators of the Robbery’ see page 96 lines 3 – 4 of the Records.”

In presenting the Issues for determination, the appellant merely repeated word for word what he had set out as ‘particulars’ in his ground of appeal.

In my view, this is a misconception of Order 6 rule 5(1) of the Supreme Court Rules. That Rule stipulates that an appellant’s brief shall contain a succinct statement of his argument in the appeal as well as

“What are, in the appellant’s view the issues arising in the appeal.’

It seems quite clear that issues in an appeal are not the same thing as particulars of a ground of the appeal.

Sometimes, three or four grounds of appeal may raise only one issue in the appeal and it does not help the appellant to set out all the four grounds of appeal, (together with their particulars) as issues in the appeal. It should be clearly understood that what is required by the Rules is for the appellant to present an intelligent appraisal of what he considers to be the important question or questions which he wants this Court to decide. Those questions must be concise in form and should be based on the grounds of appeal already filed.

In view of my observations above, I think the issues as presented by the Respondent, are more in line with the requirement of the Rules, and would adopt them in the determination of this appeal. They are as follows:

“1. Whether having regard to the evidence before the Court, the learned Judges of the Court of Appeal were right in holding that the defence of alibi had been dislodged by the prosecution.

2. Whether the appellant was properly identified by the 4 P.W. (the victim) as one of the robbers that robbed him of his Peugeot 504 Saloon car.
3. Whether their Lordships wrongly applied the provisions of section 148 of the Evidence Act without the Respondent proving his case beyond reasonable doubt.”

With regard to the first two issues, the appellant’s Counsel has submitted in her Brief that a defence of ‘alibi’ is a complete defence in law to a crime, and that the appellant was wrongly convicted of the offence especially when the record of proceedings show clearly that the appellant was not found at the locus criminis.”

Firstly, I am unable to agree with the bare assertion that an alibi is a ‘complete’ defence available to an accused person. I agree, of course, that it is a defence which he is entitled to raise in answer to the charge, but whether or not that defence completely absolves him, would depend on all other available evidence in the case.

It should of course be remembered that a defence of alibi means no more than saying that the accused was not at the scene of the crime and could not have committed the offence. But it is open to the Prosecution to show by credible evidence, that the accused was actually at the scene of the crime and not where he claimed to be.

In the often-cited case of Yanor v. The State (1965) NMLR 337, this Court has held that

“On the defence of alibi, the law is that evidence of alibi should not be disregarded by a trial court unless there is a 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 of which he relies for his defence of alibi.”

In the instant case, the Prosecution led evidence to show that the appellant and two others robbed the 4 P.W. of the car in broad daylight on the morning of 21/6/79. The 4 P.W. saw the appellant clearly and held conversation with him. This is not all, for on the journey from Ife to Ede, the appellant sat on the front seat with the 4 P.W. and later on, he identified the appellant as one of those who stole his taxi-cab from him. The evidence of identification was confirmed by Policemen who conducted the parade. At about 5.00 p.m. on the same day, the appellant was seen by 1, 2 and 3 P.W.s with the stolen car at Ugboren Village in Bendel State.

As against this, the appellant said that he was at the material time in his house, but he did not call any witnesses to support this assertion. After considering the evidence as a whole, the trial Judge accepted the story of the prosecution that the appellant was present at Ede and that he joined other persons to rob the 4 P.W. of his taxi. The Court rejected the evidence of alibi given by the appellant and held that the evidence against him was ‘overwhelming.’

The lower Court confirmed the finding of the trial Court, and in so doing, it held that if the appellant was in his room the whole day as he stated, it was impossible for him to be at Ede, Arola, Ugborhen and Okuovu where P.W.s 1, 2, 3 and 4 saw him.

The concurrent finding of fact made by the two lower Courts is in my view, amply supported by the evidence before the Court and I cannot find any justifiable reason to disturb it. See Sobakin v. The State (1981)5 S.C.75 at 78.

In regard to the 3rd issue, the appellant’s complaint was that the lower Court had misapplied the provisions of sec. 148(a) of the Evidence Act to the facts of this case. With the greatest respect to Otunba Ajayi-Okunuga, it is difficult to ascertain from her brief what point she was trying to argue. For instance, at page 2 of the Brief, she asks the following questions:

”Whereas a cardinal principle of law provides for proof beyond reasonable doubt, see section 137(1) Evidence Act Cap. 62 Laws of Nigeria 1958, why then should their Lordships hold that section 148(a) which is a presumption inevitably applied Can a conviction and sentence based on a mere presumption stand in law”

But this is not a ‘mere’ presumption, it is a presumption of law based on the facts and if Counsel had taken enough trouble to read and assimilate the judgment of the trial Court, she would have found that the trial Judge found the appellant guilty on the proved facts without the aid of any presumption- Now what are these facts They have been clearly set out earlier in this judgment, but for the sake of emphasis, I shall only repeat the salient facts which were found established and believed.

1. That the appellant and two others in broad daylight, hired the taxi-cab of the 4 P.W. for a trip from Ife to Arola Village near Ede in Oyo State.
2. That during the trip, the appellant sat in the front seat with 4 P.W.
3. That on the return journey, the appellant seized the steering of the car and with the assistance of the other two robbers, dragged 4 P.W. out of the car and drove off.
4. That the 4 P.W. later identified the robbers at an identification parade.
5. That on the same day of the robbery (at about 6.00 p.m.) the appellant and others were seen with the stolen car at Ugboren Village in Bendel State.
6. That they were begging 1 P.W. for money with which to change the colour of the taxi to that of Bendel State taxis.
7. That when an alarm was raised, they ran away, but were later apprehended by 3 P.W. at a road-block at about 1.00 a.m.
8. That the appellant made a statement that same day in which he admitted that he and others were seen in the car at Ugboren.

In the face of those compelling facts, the trial Judge did not find it difficult to convict the appellant. The learned Judge did so purely on the facts and without relying on the provisions of section 148(a) of the Evidence Act.

However, when the matter got to the Court of Appeal, that court observed, as it was entitled to do, that the facts of the case raised a presumption of guilt against the accused, that is, that the appellant was in possession of a stolen car, a few hours after it was stolen, and could be presumed to have been the thief. That is a presumption of law – it is an inference which section 148 of the Evidence Act allows the court to make and in this instant case, I am satisfied that that presumption could validly he made.

Indeed, that same type of presumption has been made in similar cases.

In R. v. Kwashie (1950)13 WACA 86, it was held that an accused who was found in possession of property stolen some 90 minutes earlier, could he presumed to be the thief. Similar presumptions were made in

R. v. Sunday Jumbo (1960) L.L.R. 192;

R. v. Michael Opara (1961) WNLR 127;

M. Kolade v. Commissioner at Police (1971) NMLR 109

After a careful consideration of the only ground of appeal presented to this Court, I am satisfied that there is no merit whatsoever in this appeal.

It was for these reasons that I agreed on 22nd September, 1988 that this Court should dismiss the appeal and the appeal is accordingly dismissed.

The judgment of the trial Court as affirmed by the lower Court, is hereby confirmed.

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SC.2/1988