Theophilus Eyisi V. The State (2000)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The origin of this case comprising of an attack on a vehicle (a Peugeot 504 G.L. saloon car) occupied by two persons – P.W. 2 and P.W.3 – involved the three accused persons (Theophilus Eyisi alias Sunday Eyisi, Joseph Ezebuilo and Titus Eyisi, who in the rest of this judgment I shall refer to as 1st, 2nd, and 3rd appellants respectively). They were jointly charged in a one-count information with the offence of Armed Robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 1970 (No.47 of 1970) as amended by the Robbery and Firearms (Special Provisions) (Amendment) Act, 1974 (No.8 of 1974). The appellants who then subsequently stood trial before the High Court of Anambra State presided over by Obiesie, J. of blessed memory, sitting at Onitsha, were found guilty, convicted as charged and accordingly sentenced to death.

Aggrieved by this decision, the appellants appealed unsuccessfully against their conviction and sentence to the Court of Appeal holden in Enugu (hereinafter referred to as the Court below). Being further dissatisfied with the decision of the court below, they have finally appealed to this court. The facts of the case, which are themselves not complicated, may be briefly stated as follows:

On the 18th day of July, 1981, at Onitsha, in the Onitsha Judicial Division, Osita Okeke (PW2) and Onyebuchi Onwuzuligbo (PW3) who had earlier that day been to Aba to purchase some music playing records and were on their way back to Onitsha in PW2’s Peugeot 504 G.L car registration No. AN 1616 SA entering Oguta road, Onitsha, saw a Saloon car blocking the road in front of them and appearing to be reversing. This made PW2 to stop his car to watch the appellants and three other occupants of their vehicle immediately alighting therefrom, all armed with daggers, guns and knives. This was about 9.30 p.m. but the headlights of PW2’s car were fully on. Four of these robbers attacked PW2 with the other two going to the side of PW3. As those who converged on PW2 ordered him out of his car and he declined to do so, he was soon attacked with daggers and knives, with the 3rd appellant hitting him at the mouth with the butt of his gun thus, forcing PW3 to run away to a nearby building. All six attackers after being described as having in their possession locally made shotguns, it was shown how these guns were fired into the air to scare away people.

The armed men upon being said to have driven away in PW2’s car together with his brief case containing N5,000 and 54 packets of records, it was shown that after this, PW3 came out of hiding and called a taxi which took PW2 to hospital where he was treated by Dr. Chukwuemeka Godwin Anyika (PW1), who gave a vivid description of the injuries sustained by PW2, the latter who in turn subsequently made a report of the matter to the police.

On the 20th of July, 1981, barely two days after the incident just narrated, 1st and 2nd appellants came to Obed Onwuzuligbo, who later testified as PW 5 and who incidentally is father of PW3, to sell some packets of records – identical to those involved in the robbery thus, freshly perpetrated on PW2 and PW3 in the neighbourhood. The law was set in motion by the Police being contacted with the natural follow up leading to the arrest of the 1st and 2nd appellants. After the arrest, the 2nd appellant made a useful statement to the Police that there were other (identical) records in the house of the 3rd appellant at number 6, Pam Pam Lane, Onitsha. Following the trail of this information and sequel thereto, the Police imminently went to the house where the 3rd appellant was arrested and some records recovered. On the following day – 21st July, 1981 – the Police, armed with a search warrant (Exhibit P), conducted a search of 3rd appellant’s premises and recovered thereat:

(a) 3 double barrel locally made pistols,

(b) 40 cartridges;

(c) One carton of long-playing records containing 49 pieces of records.

During the search, Sergeant E. Anyano (PW6), who conducted the search and Sergeant Momodu Aliyu (PW4) as well as (PW3), one of the robbery victims, were all present.

All three appellants made extra-judicial statements to the Police, namely, (Exhibits C,D,E,H and N) which were admitted in evidence without any objections. The prosecution’s case in the first place was effectively that all the appellants took part in the commission of the crime and were pinpointedly identified by either PW2 or PW3 or both at the scene of the crime. Secondly, it was their (prosecution’s) contention that the appellants were found in possession of the property stolen during the robbery that earlier, and one may dare add, took place contemporaneously to the detection thereof.

The case of all the appellants taken separately and together was a complete denial of their involvement in the commission of the robbery. In addition, the 1st appellant in his voluntary statement to the police (Exhibit ‘C’) dated 20th July, 1981 and his evidence in court, stated unequivocally that it was the 2nd appellant who brought the cartons of records on 19th July, 1981 between 4.00 and 5.00 am to the room at Pam Pam Lane, Onitsha and at that time, 3rd appellant was absent. On the other hand, the 2nd appellant, both in his extra-judicial statement to the Police (Exhibit’D’) and his evidence in court, stated that it was the 1st appellant who met him (2nd appellant) and offered to sell the records to him.

All three appellants, as I had hereinbefore pointed out, were found guilty of robbing PWI AND PW2 of the records as charged and were each sentenced to death. Each appealed to the court below, which found no substance in their appeals and so did not hesitate in dismissing them. The appeal to this court by each of the appellants is from the affirmation of both their convictions and sentences.

Each of the 1st, 2nd and 3rd appellants, has bought his appeal solely upon the grounds of appeal filed with the Leave of this court dated the 24th day of November, 1999 contained in a notice of appeal consisting of four grounds and granted on 9th December, 1999. The parties eventually filed and exchanged briefs of argument in accordance with the rules of court.

The 1st and 3rd appellants at first submitted the following three overlapping issues as arising for our determination, to wit:

1. Whether the Justices of the Court of Appeal were right to hold that the failure of the trial Judge to enter separate verdict and sentence against each of the accused persons was not fatal to the conviction and sentence of the 1st appellant.
2. Whether the Justices of the court of Appeal were right in sustaining the findings that the 1st appellant was sufficiently identified given the facts and circumstances of the case.
3. Whether the Justices of the Court of Appeal were right to hold that the learned trial Judge duly and properly considered the defence set up by the 1st appellant.”

The lone issue formulated on 2nd appellant’s behalf queries succinctly, “Whether the trial of the appellant was valid in law.”

Finally, 1st appellant and the respondent each proffered five identical issues for our determination as follows:

1. Whether at the time (that is 18th July, 1981) when the appellants herein allegedly committed the offence of armed robbery and as at 9th November, 1983 when criminal proceedings were instituted against them for which they were tried and convicted by the High Court of Anambra State of Nigeria, the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by the various other enactments, including the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act, No. 105 of 1979 was a Federal Law or whether it should be regarded as a State enactment and whether the State High Court has jurisdiction to hear and determine the case.
2. Whether the Justices of the Court of Appeal were right in sustaining the findings of the trial court that by the nature of the armed robbery incident the identifications of the appellants were clear and certain to enable the trial Judge act on them.
3. Whether the Justices of the Court of Appeal were right in holding that the collective conviction and sentence of the appellants by the trial Court did not occasion any miscarriage of justice.
4. Whether the Justices of the Court of Appeal were right in sustaining the findings of the trial court that the purported defence of alibi set up by the 1st and 3rd appellants was not available to them.
5. Whether the Justices of the Court of Appeal were right in affirming the decisions of the trial court that based on the totality of evidence before it in the prosecution proved its case beyond all reasonable doubts.”

Before I embark on the consideration of these issues, however, I wish to point out firstly, that the panel of the court below that decided the case was made up of Nasir, President, Ogundere (of blessed memory) and Achike, JJC.A. and not Nasir, President and Ogundare and Achike, JJ.C.A. as set out in the records.

Secondly, that up till the hearing of this appeal on 5/10/2000, the record remained incomplete and not intact, with the judgment of Ogundere, JJ.C.A. missing. We resolved albeit to hear the appeal moreso, that the missing record (that of Ogundere, JCA) being a dissenting judgment neither adds to nor subtracts from the appeal papers when all is said and done. Besides, since the appeal herein attacks the majority judgments of Nasir P. and Achike, J.C.A. as he then was respectively, the absence of the dissenting judgment of Ogundere, J.C.A. from the records, in my opinion, would not make any difference to the outcome of this appeal. Suffice it to say, that since the respondent has, through learned Deputy D.P.P. identified five issues which overlap the five submitted at the instance of the 1st appellant for our consideration, I wish to adopt those formulated and treated by the 1st appellant and respondent as adequate to dispose of this appeal as follows:-

Issue One:

Whether at the time (that is 18th July, 1981) when the appellants herein allegedly committed the offence of armed robbery and as at 9th November, 1983 when criminal proceedings were instituted against them for which they were tried and convicted by the High Court of Anambra State of Nigeria, the Robbery and Firearms (Special Provisions) Act No.47 of 1970 as amended by the various enactments, including the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act No. 105 of 1979 was a Federal Law or whether it should be regarded as a State enactment and whether the State High Court has the jurisdiction to hear and determine the case.

From the date of the promulgation of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 up to the date of the coming into force of the 1979 Constitution i.e. on 1st October, 1979, the state Attorney-General became vested with the prosecution of armed robbery matters in the Tribunals. On the eve of the transition into Republican Constitution, that is the 1979 Constitution, the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) etc Decree No. 105 of 1979 was passed. This Decree repealed section 6 of the Robbery and Firearms (Special Provisions) Decree 1970, as amended. It also deleted the definition of “Tribunal” therefrom. It then appears that from this Decree, the authority of the State Attorney-General to prosecute offences under the Decree in the State Tribunals had been removed. Therefore, the Tribunal ceased to exist with the 1979 No.105 Legislation, which came into force simultaneously with the 1979 Constitution i.e. on 1st October, 1979. In Decree No. 105 of 1979 Schedule 3 thereto under which section 6 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 was repealed, section 5 of the 1970 No. 47 Decree was amended by substituting the following:

“Trial of offences: Offences under this Decree shall be triable in the High Court of the State concerned.”

Thus, by section 5 of the 1970 No. 47 Decree, that Decree i.e. (Decree No. 47 of 1970) remains a State Legislation as from 1st October 1979. By virtue of Section 274(4)(b) of the 1979 constitution, it became an Existing Law of the State and Robbery per se became a residual matter while the Legislation i.e. (1970 No.47 as amended) was deemed to be a law made by the House of Assembly. As Section 6 of the Legislation which deals with only procedure had been repealed by Decree No. 105 of 1979, by virtue of section 239 of the 1979 Constitution, the provision for practice and procedure became vested in the State House of Assembly while the High Court thereby is to exercise its jurisdiction in accordance with such procedure and rules pertaining to Criminal Procedure in the state that would be applicable.

In the case of Emelogu v. The State (1988) 1 NSCC 869; (1988) 2 NWLR (Pt.78) 524, facts of which are similar to the present case, this court held thus “(1) that by virtue of the provisions of Section 274 (4)(b) of the 1979 Constitution, the Robbery and Firearms (Special Provisions) Act No.47 1970 became an Existing Law of the State and Robbery per se, a residual matter, while the Act as amended was deemed to have been made by the House of Assembly and that in view of this, offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended, are not Federal but state offences.”

However, with the coming back of the Military to the rulership of Nigeria at the end of the year 1983, another decree – Armed Robbery and Firearms (Special Provisions) Decree No.5 of 1984, was promulgated and Tribunals were re-established. By section 1(2) of the Robbery and Firearms (Special Provisions) amendment Decree No.21 of 1984, part-heard matters were allowed to continue and be concluded in the High Courts while new matters were transferred to the Tribunal. See Emelogu v. The State (supra) at page 880.

From the records, trial in the present appeal started at the High Court on 10th November, 1983 and thus was part-heard at the time when Decree No.5 of 1984 came into force. Therefore, the High Court under section 1(2) of the Amended Decree No. 21 of 1984 had to continue with the trial of the case.

I therefore hold that at all times, material to the trial of this case, the High Court of Anambra State sitting at Onitsha had the jurisdiction to hear and determine this case.

Still on the question of the so-called invalid trial, counsel for the 2nd appellant urged us to nullify the proceedings of the trial court and allow the appeal as, according to him, the trial court failed to comply with section 215 of the Criminal Procedure Law, the plea of each accused person was not recorded separately. He relied on Alake v. The State (1991) 7 NWLR (Pt. 205) 567-589; Kajubo v. The State (1988) 1NWLR(pt.73) 721.

At page 22, lines 1-3 of the records the learned trial Judge recorded as follows -” Charge dated 9/11/83 read over to the accused persons in English Language and translated into lbo and each pleads not guilty to the charge. ” The question is – what is the meaning of “each” used by the trial court Does it mean block plea as submitted by the 2nd appellant’s counsel According to Webster 50 New Encyclopaedic Dictionary, New revised Edition “each” means being one of two or more distinct individuals; each one. See also Black 50 Law Dictionary (sixth Edition) where “each” is defined as “a distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned; every one or two or more persons or things, composing the whole, separately considered.” I am of the firm view that the record of the trial court shows that each distinct individual accused person separately pleaded not guilty after the one count charge had been read to them and interpreted to them in Igbo language. The records do not show that there was a block-plea or communal plea as contemplated by the learned counsel for the 2nd appellant. The recording of the plea in Alaka’s case (supra) which was commended by the Court of Appeal and which involved three accused persons with 18 counts charge is synonymous with the recording of plea in the instant case which involved three accused persons with a one count charge. See also Pele Ogunye & Ors v. The State (1999) 5 NWLR (Pt. 604) 548 at 565; (1999) 4 SCNJ 33-48; and Okoro v. State (1998) 14NWLR(Pt. 584) 181 (1998) 2 SCNJ 84 where it was observed as follows:

“The provision of the law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction.”

In Kajubo’s case (supra), the records do not show that the two counts charge was read to the accused person and interpreted to him in the language he understood before he pleaded not guilty. This court allowed the appeal and ordered a retrial of the case. Compare Edet Effiom v. The State (1995) 1 NWLR (Pt.373) 507 and Madu v. The State (1997) 1 NWLR(Pt. 482) 306 at402 where retrial for its own sake was never ordered.

The law presumes the regularity of a judgment until the contrary is proved. Since the contrary in respect of the recording of the plea of the appellants in the instant case has not been shown, I hold unto the presumption. See also Ogba v. The State (1992) 2 NWLR(Pt.222) 164; (1992) 2 SCNJ (Pt.1 106 where at page 195, paragraphs B-D of the latter Report, (NWLR) Karibi-whyte, JSC held inter alia as follows:

“Learned counsel to the respondent has pointed out and I entirely agree with him that there is sufficient evidence on the record to show by implication that appellant understood both Igbo language and English language. Appellant’s statement to the Police Exhibit 2 was in English. His oral testimony at his trial (see page 29-30 of the record) was in Igbo language. The evidence of PW3 and PW6 was in Igbo language. There is nothing from the record to show that there was no interpretation from Igbo language to English Language and vice versa. The only defect was the absence of a certificate of the trial Judge or note showing that the proceedings was interpreted. There is no doubt there is the useful usual practice to so indicate. There is neither statutory or constitutional support for the practice. The non-compliance with the practice can therefore not affect the validity of the proceedings, appellant could not have raised ‘any objection on that ground.’

Besides, no miscarriage of justice would have been occasioned in the instant appeal where the appellants were represented by counsel and no clear proof has been shown that no interpretation of the proceedings was made to them. See Muhammed Arab v. Bauchi N.A.(1965) NNLR 48, 50 and Ubi Yola v. Kano N.A. (1961) NNLR 103- “Omnia praesumuntur rite et solemniter esse acta”.

Issue Two

Whether the Justices of the Court of Appeal were right in sustaining the findings of the trial court that by the nature of the armed robbery incident, the identifications of the appellants were clear and certain to have enabled the trial Judge act on them.

The principal witnesses for the prosecution in this case are PW2 and PW3 who were the victims of the armed robbery attack. In a statement made by PW2 to the police on the night of the incident he said: ” I can identify them by their faces because they had no mask on their faces” page 8 lines 1-2. Also, in the statement made by PW3, Onyebuchi Onwuzuligbo on the same night of the incident i.e. 18/7/81 he said” I can identify the thieves if seen because they had no mask” – page 10 lines 7-8.

Even though the time of the robbery was 9.30 p.m, there was ample evidence that PW2 and PW3 recognised the faces of the robbers with the aid of the headlights and the interior lights of their vehicle which were fully on; also the lights from the attackers vehicles and other vehicles that stopped at the scene of the incident.

PW2 in his evidence-in-chief at page 24 lines 29 to 31 said thus: “I saw the faces of these men through the aid of the lights of my vehicle and when they opened the door of the car, I also saw their faces. The accused persons were among the six persons that attacked me that night.” There is no doubt that PW2 saw the faces of the robbers clearly on the night of the incident because the headlights and the interior light of PW2’s car were fully on. Also the robbers made no attempt to conceal their faces as they wore no masks. Moreover PW2 did not run away during the attack but stayed on to fight it out with the robbers and was able to recognise their faces clearly. See page 186 of Diary on need or otherwise of identification parade etc. This explains why PW2 after going to the hospital for treatment on 20/7/81, went to the police station to find the progress of the case he reported (quite unknown to him that some of the robbers had been arrested) and on seeing the 1st and 2nd appellants in the midst of other people at the police station immediately identified them as being among the robbers who attacked him on the night of the incident. PW2 also immediately identified the 3rd appellant at the police station on that same 20/7/81 as soon as he was arrested and taken to the police station.

PW3 who was with the PW2 during the attack was also positive that he clearly saw and recognised the appellants on the night of the incident. At page 26 line 33 to page 27 lines 1-3, PW3 said thus ” I saw the faces of these men. The accused persons were among the people I saw that day. I recognised the men who attacked us because the light of the vehicle was on.” Also at the same page 27 lines 7-10, PW3 said” I recognised the people who brought the records. The 1st and 2nd accused persons were among the men who beat us up. The stolen records were among those brought for sales.” Therefore, it is in evidence that PW3 recognised the 1st and 2nd appellants at No. 511 Iweka Road, Onitsha when they brought the stolen records to sell to PW5, where they were arrested by PW4 and PW6. Also PW3 identified the 3rd appellant not in his house but some distance away from his house when he PW3 was going with PW4 and PW6 to the 3rd appellant’s house at No.6 Pam Pam Lane, Onitsha. One wonders how PW3 could have identified the 3rd appellant not even in his house but some distance away from his house if he (PW3) had not seen him on the night of the incident. Therefore the learned trial Judge was right when he found at page 96 lines 30-33, and page 97 lines 1-22 as follows: “It is fully established to my utmost satisfaction that the incident happened at night and that the headlights of PW2’s vehicle were on as well as the interior light of the car which made visibility very bright added to the fact that the vehicle used by the accused persons and others stopped in front of the said vehicle. The distance between the two vehicles was not far. In addition, PW2 never ran away and PW3 who escaped went to an adjacent house and watched what happened and thereafter called a taxi that took PW2 to the General Hospital Onitsha for treatment. Brightness, locus and distance are paramount for identification and these three factors are in favour of the prosecution. Furthermore, 1st and 2nd accused persons were easily recognised at the police station where there were many people and when PW4, PW6 and PW3 were going to the house of the 3rd accused. In view of all these overwhelming evidence, the necessity for further identification does not arise.” See Madagwa v. The State (1988) 5 NWLR (Pt. 92) 60, a case whose facts are similar to the one in hand.

The Court of Appeal agreed with the findings of the trial court as there is no cogent reason to show that the findings and conclusions were perverse. In the leading judgment delivered by Mamman Nasir, President, Court of Appeal, he said at page 210 as follows: “I respectfully agree with the reasoning and conclusion, of the learned Judge in respect of the identification. The circumstances were such that the witnesses PW2 and PW3 recognised their assailants in such an impromptu manner as to make any formal identification a mockery of the system. In my opinion, in a case like the one under consideration, where the learned trial Judge had carefully sifted the evidence, an appeal court would not interfere with such conclusion unless there was presented to the court, cogent reasons to show that the findings and conclusions were perverse- See (Ebba v. Ogodo and Anor (1984) 4 Sc. 84). In the present appeal, the ‘natural reaction’ and manner in which the appellants were recognised left no room for the prosecution to hold formal identification parade.” I cannot agree more.

The following cases on identification are relevant and I adopt them as applicable to the case in hand. (1) State v. Odidika & Anor(1977)2 SC. 21 at 23 :

(2) State v.Francis Odili (1977)4 SC.l at 6

(3) Statev. Sunday Omega (1965) NMLR58 at 59

(4) State v.Matthew Orimoloye (1984) 10 Sc.138 at 143

(5) State v. Udoh Umoren & Anor(1983) 6 Sc. 217 at 219

(6) Bozin v. The State (1985) 2 NWLR (Pt.8) page 465 at 467 and 472

(7) State v. Ajibade (1987) I NWLR(Pt.48) 205 at210 C

I accordingly uphold the concurrent findings of the trial court and the Court below with regard to the identification of the appellants. See Ebba v. Ogodo (supra)

Issue Three:

Whether the Justices of the Court of Appeal were right in holding that “the collective conviction and sentence” of the appellants by the trial court did not occasion any miscarriage of justice.

After a well conducted trial, the trial court when passing its verdict and sentence said at page 99, lines 29 -32 and page 100, lines 1-5 as follows -” I find the accused persons guilty and following the provisions of section (1), (2)(a) of the Robbery and Firearms (Special Provisions) Act No.47 of 1970, as amended by the Robbery and Firearms (Special Provisions) Amendment Act No.8 of 1974, all the accused persons are hereby sentenced to death. May the lord have mercy on your souls.” But the question is, has this occasioned any miscarriage of justice as would have misled each appellant as to the offence for which he was convicted and as to the sentence passed on him It is the submission of the 1st and 3rd appellant’s counsel that the trial Judge was in serious error when he failed to return separate verdicts and separate sentences for each of the appellants and that the failure had occasioned a miscarriage of justice. In support, they cited and relied on the authorities of Oyediran & 5 Ors v. The Republic (1967) NMLR 122 at 125 and The State v. Aibangbee, Collins Oji & Anor(J988) 3 NWLR(Pt.84) 548 at 552. In Oyediran’s case (supra), there were at least six accused persons charged in an information containing sixteen counts. Some of the accused persons were not charged in some of the counts and some were convicted in the counts for which they were not charged. At the end of the trial, the trial Judge failed to record his verdict on each accused person in respect of each count. This court carefully went over the convictions, which were dear and upheld them but quashed the wrong convictions.

In the instant appeal, the trial on the one count charge was well conducted with witnesses who gave evidence being recalled for further cross-examination. The learned trial Judge meticulously and carefully reviewed and evaluated the case of each appellant, how each appellant was identified by PW2 and PW3 at the scene of crime and how each was subsequently identified to the Police and separately considered the submissions of counsel but later fell into some procedural error in pronouncing its verdict and passing sentence on each of the appellants.

Throughout the trial, the appellants were aware of the scope of the one count charge for which they were being tried i.e. armed robbery and their counsel were equally aware of the scope of the one count charge which they were defending. Therefore the possibility of their being misled as to the offence they were charged with, tried, convicted of and sentenced was not just there.

From the records, it is clear that all the essential features of a well conducted trial were satisfied by the trial court save that the learned trial Judge pronounced his verdict and passed his sentence as it were in one breath instead of three breaths. It is not the appellant’s case that either the verdict or sentence is erroneous in the sense that no reasonable tribunal could have found or imposed that term of punishment; rather the gravamen of their complaint is a technical fault in pronouncing verdict and imposing sentence on the appellants collectively. It is now settled law that technicalities ought not be allowed to defeat substantial justice – See City Engineering Nig. Ltd v. N.A.A. (1999) 11 NWLR (Pt.625) page 1 at 80, Ratios 4 & 5, Falobi v. Falobi (1976) NMLR Volume 1 page 169. In the words of Eso, JSC in Okonjo v. Dr. Odje & Ors (1995) 10 SC. 267 at 268 “justice by technicality is no justice”

The trial Judge having found the appellants guilty after due consideration of the totality of the evidence before him in the single count charge, he had no option other than to find each of them individually guilty as laid in the one count charge. Similarly, with regard to sentencing, the trial court was mandatorily obliged to impose death sentence severally on each of the appellants. Therefore, despite what is dubbed “collective” verdict and sentencing, each of the appellants cannot be said to be misled as to the verdict of the court and as to the sentence imposed on him.

I therefore uphold the contention of the learned Deputy D.P.P to affirm the decision of the court below which lumped together the verdicts and sentences of the three appellants in the circumstances. Although the procedural slip has not been shown to be fatal in the sense that it has not occasioned any miscarriage of justice, the court below in the exercise of the vast powers invested on it under section 16 of the Court of Appeal Act, 1976 has, in my opinion, appropriately amended this procedural slip bearing in mind that no appellant was misled.

Issue Four:

Whether or not the Court of Appeal was right in sustaining the findings of the trial court that the purported defence of alibi set up by the 1st and 3rd appellants was not available to them.

Exhibit C is the statement of the 1st appellant. His statement in Exhibit C resembling an alibi is where he said “I did not steal the records, I was in my brother’s house at Pam Pam Lane Onitsha on 18/7/81. I slept in Titus’ house that day.” The law relating to alibi is that an accused person who wishes to raise alibi must raise it at the earliest opportunity to enable the police to investigate it and must offer evidence. See the following cases:

Salami v. The State (1988) 3 NWLR(Pt.85) 670

State v. Peter Eze (1976) 1 sc. 125 at 129 – 130

State v. Francis Odili (1977)4 SC. 1 at 5-6

State v. Dikeocha & 6 0rs 10 ENLR 155

State v. Odidika & Anor (1977) 2 SC. 21 at 23

In the case of Hemyo Ntam & Anor v. The State (1968) NMLR 86, this Court was of the view that when there is a positive evidence of the accused’s complicity in the offence, the police need not investigate his alibi. Also in Ekpe Ibor & Anor v. The State (1983) 3 SC.1, this court held that an alibi can be negatived by eye witness account of the commission of an offence by an accused person. See also Patrick Njovens & Ors v. The State NNLR 76, at 78; (1973) 5 SC.17 at 65 where the fixing of the accused at the scene of crime melted away his plea of alibi.

It is only where an accused person has adduced evidence in support of his alibi and the police fail to investigate it that it could be construed against the prosecution. Not so in this case.

In the above purported alibi of the 1st appellant, he did not offer any evidence in support of his alibi and therefore has not discharged the onus on him. Also in Exhibit E, the 1st statement of the 3rd appellant where he said: “On 17/7/81, I went to my home town at Adazi.” Similarly, in Exhibit H which is his 2nd statement to the police he said: ” I travelled to Adazi-Ani on 17/7/81 and when I returned, I heard that the police arrested my brother Sunday Eyisi in connection of records.”

Even if the above statement of the 3rd appellant could be regarded as alibi, there is no evidence whatsoever supporting the alibi which could enable the police to investigate the truth or otherwise of the purported alibi. Therefore, the learned trial Judge was right when he said thus at page 96 lines 15 – 18 “It is not enough to say that one is at Nkpor or at Adazi,” and the Court of Appeal was right when it said at page 212 as follows:

“In the present case, the trial Judge rightly considered all the statements of the appellants to the police and concluded that none of them raised an alibi which could be investigated”

I am therefore of the firm view that this court would not disturb these concurrent findings of the trial court and the court below that the purported defence of alibi was not available to the 1st and 3rd appellants.

Issue Five:

Whether the Justices of the Court of Appeal were right in affirming the decision of the trial court that based on the totality of evidence before it, the prosecution proved its case against each of the appellants beyond all reasonable doubts. I agree with the learned D.D.P.P. that the prosecution proved its case beyond all reasonable doubt for the following reasons:-

1. Each of the appellants was clearly seen and recognised by PW2 and PW3 at the scene of crime actively taking part in the crime. None of them masked his face and both the vehicle headlights and the interior lights of PW2’s vehicle were fully on. Moreover, the headlights of the vehicle used by the robbers including the headlights of other vehicles that parked at the scene of the crime during the incident were also fully on.
2. The appellants were subsequently identified by their victims both at No.511 Iweka Road, Onitsha, at the Police station and along the road to No.6 Pam Pam Lane, Onitsha.
3. Soon after the robbery operation, the 1st and 2nd appellants were found in possession of the stolen records and none of them could give a reasonable account of his possession. Instead, each accused the other of being the owner of the records – See the presumption in section 149(a) of the Evidence Act.
4. On a visit to the house of the 3rd appellant, two days after the incident, a carton of the stolen records was found and no reasonable explanation was offered of how he came in possession of the records – See also section 149(a) of the Evidence Act. See also the following cases:- R. v. Jombo 1960 LLR 192; R. v. Kwashie 1950 13 WACA 86; See also Madagwa v. The State (supra)
5. Also on a search of the house of the 3rd appellant at No.6 Pam Pam Lane, a common rendezvous of the appellants, three locally made double barrel pistols and forty rounds of ammunition were found and none of them could offer any reasonable explanation of their being there. He, the 3rd appellant, admitted that the guns found in his house were under his mattress wrapped in a polythene bag.

I hold as was held by the trial court and the Court below that based on the totality of the evidence before the trial court, the prosecution proved its case beyond all reasonable doubt. It is well settled law that the Supreme Court will not usually or generally interfere with the concurrent findings of the fact of the Court of Appeal and the trial court unless such findings are found to be perverse. See Ahmed v. State (1999) 5 SCNJ page 223 at 246-247;(1999) 7 NWLR (Pt. 612) 641 State v. Emine (1992) 7 NWLR (Pt. 256) at page 556; Asanya v. State (1991) 3 NWLR (Pt.180) at page 422.

In the instant case, both the findings of the trial court and the Court of Appeal are based on cogent and credible evidence before the trial court. The issue proffered here is resolved against the appellants.

In the result, I dismiss the appeals of the 1st, 2nd and 3rd appellants respectively as lacking in merit.

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SC.160/1999