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‘Offence Committed Is In Doubt Where Identity Of Accused Is Doubtful’

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FACTS

This appeal is against the judgment of the Court of Appeal sitting at Akure, hereinafter referred to as the lower court, upholding the conviction of the appellant by the Ondo State High Court, hereinafter referred to as the trial Court for the offence of armed robbery contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (CAP Rl vol. 14 Laws of the Federation of Nigeria 2004. The lower court’s judgment being appealed against was delivered on the 12th day of May 2015 and the trial court’s decision it upholds was delivered on 24th July 2013.

The appellant had pleaded not guilty to the charge he had been arraigned for. To prove its case, the prosecution called three witnesses: PWI is Kolawole Ogunleye the victim of the crime; PW2, the painter to whom the appellant took the vehicle he robbed PWI for same to be differently painted and PW3 the police officer who investigated the case against the appellant. Four exhibits, B, C, E and F were tendered by the prosecution.

The appellant, DW1, testified in person, wlth his father, DW2, further testifying for him. He tendered three exhibits: A, D1 and D2.

The case of the prosecution is that on the 23rd October 2009 the appellant, by the Fiwasaye Girls Grammar School Area, Akure, engaged the services of PW1,  a taxi driver, to convey him and his eggs from lju/lta-ogbolu to Alagbaka Akure for three thousand naira. Off the main road and towards the spot where the eggs were stored, the appellant instructed PWl to stop the vehicle and hand over the key of the vehicle to him. Following PWl’s resistance, the appellant brought out a cutlass from his black nylon bag and matcheted the former on the head at which point in time someone emerged from the bush and assisted the appellant to drive away the vehicle. Not long after PWl had reported the incident at the Iju/lta-Ogbolu police station, the appellant was arrested. The appellant’s confession led to the recovery of PWI‘s taxi cab from a painter’s workshop in Okene, Kogi State. PWl identified the appellant at the lju/lta-gbolu police station as the person who robbed him of his taxi cab on the 23rd October 2009.

Appellant’s case at trial is a flat denial of the armed robbery. Even though in exhibit B, his extra judicial statement, he confessed to the robbery and furnished information leading to the recovery of PWl’s taxi cab from a painter’s workshop in Okene, he insisted at trial that on the 23rd October 2009 he was away in Okene to attend to his health challenges.

At the close of trial, including final addresses of counsel the learned trial judge, in a considered judgment delivered on the 24 July 2013, found the appellant guilty and sentenced him as charged. Dissatisfied, he appealed to the lower court vide a Notice of Appeal containing two grounds filed on 2nd August 2013. Appellant’s appeal was dismissed by the lower court.

Still aggrieved, he has further appealed to this Court by his Notice filed on the 18th May 2015.

ISSUE FOR DETERMINATION

”Whether the Court of Appeal was right in affirming the findings of the trial court that the defence of alibi was not established by the appellant and that the contradiction and discrepancies in the extra judicial statement of PWI and his evidence are not material to cast doubt to the case of the prosecution.”

ARGUMENT

Arguing the lone issue, learned appellant’s counsel submits that the appellant had at the earliest opportunity set up an alibi in exhibit D, his extra judicial statement made following his arrest 25/10/2009 at lju police station reaffirming same on 26/10/2009 when exhibit DI was recorded. Appellant’s father, the other witness who testified for him, restated the alibi put forward by the appellant in exhibits D and D1. The trial court’s finding at page 128 of the record that the appellant’s alibi is at large which the lower court affirmed at page 200 -201 of the record, learned appellant’s counsel contends, is not supported by the evidence on record. The evidence on record, it is submitted, rather establishes the prosecution’s failure to investigate the defence so raised which is fatal to the prosecution’s case. Appellant’s defence of alibi as contained in the evidence of DWI and DW2, it is emphasized, is neither challenged nor controverted. The concurrent finding of the two courts insisting that the appellant furnishes more details of his absence from the scene of crime, it is argued, casts on the appellant the burden of proving his innocence. Citing the decision in Ukwunanyi V. State (1989) 4 NWLR (Pt 114) 113 it is contended that the burden of establishing appellant’s guilt remains throughout on the prosecution and does not shift.

Further relying on John V. State (2012) ALL FWLR (Pt 607) 643 at 656, Aliyu V. State (2013) 6-7 (Pt IV) SC and Chabasaya V. Anwasi ALL FWLR (Pt 528) 837 at 857, learned counsel urges that the perverse concurrent findings of the two courts be set aside.

The prosecution’s case, it is further argued, is riddled with contradictions. In exhibit A, PWl’s statement to the police for example, submits learned appellant’s counsel, it is alleged that the appellant and one other person robbed PWl of his taxi. Under cross examination however, it is further submitted, the same PWl told the court that only the appellant dispossessed him of the vehicle. The trial court’s finding at page 124 of the record ignoring this clear contradiction, it is contended, is wrongly affirmed by the lower court at page 204 of the record of appeal. These findings failed to take into consideration the identity of the appellant as an essential and necessary element of the offence of robbery. Where identity of an accused remains in doubt, it is argued, the commission of the offence by him equally remains in doubt. The doubt, submits learned appellant’s counsel, enures to the appellant in this case. Learned counsel cites Abiodun V. State (2013) 3-4 SC (Pt II) 126 at 143, Osuagwu V. State (2013) 12 SC (Pt 1) 37 at 64 and Opeyemi V. State and insists that the appellant be given the benefit of the alibi he raised but was ignored by the two courts. This Court, learned counsel urges, intervenes to disallow reliance on incredible evidence led by the prosecution that is full of discrepancies. He prays that the appeal be allowed.

JUDGEMENT

My lords, both sides agree and rightly too that for the appellant to succeed he must demonstrate that the concurrent findings of the two lower courts leading to his conviction and sentence for armed robbery under Section 1(2)(a) of Robbery and Firearms (Special Provisions) Act CAP R1 Vol. 14 of the Federation of Nigeria 2004 are perverse.

A perverse finding is one which is merely speculative and does not evolve from any evidence. It is a finding that is unreasonable and unacceptable having been arrived at completely outside the evidence or on the basis of wrong application of the law to the evidence before the court. See Atolagbe V. Shorun (1985) 1 NWLR (Pt 2) 260 and Sande V. The State (1982) 4 SC 41.

Appellant’s contention under the lone issue for the determination of his appeal is that his conviction and sentence by both courts in the absence of legally admitted evidence led by the prosecution in proof of its case being perverse, the law entitles this Court to interfere by making correct findings in the circumstance and setting aside the wrong concurrent findings that occasioned miscarriage of justice. One cannot agree more with learned appellant’s counsel in this regard. However, learned respondent’s counsel is on a very firm terrain in his insistence that appellant’s failure to show that the concurrent findings being appealed against do not draw from the evidence on record and/or that the evidence is tarnished by contradictions accounts for the failure of his appeal. See The State V. Aigbangbee (1998) 3 NWLR (Pt 84) 548; James Afolabi V. The State (2016) LPELR-40300 (SC). l entirely agree with learned respondent’s counsel.

In decisions too many to count, this Court has held that in criminal proceedings the plea of alibi as a defence succeeds where it is raised unequivocally and timeously during investigation. The time, place and the people with whom the accused person was at the time material to the commission of the offence must be proffered. The plea will invariably be discountenanced if the particulars of the place, time as well as the name(s) of the person(s) who can testify that the accused was not at the scene of crime at the material time were not given. Though it is incumbent for the prosecution to investigate an accused person‘s plea of alibi, this becomes impossible in the absence of the particulars of the plea being timeously supplied by the accused. Indeed, this Court has severally held that the prosecution is not expected, in the absence of the particulars necessary for such investigation, to go o a wild goose chase to investigate such an out rightly defective and unavailing plea. See Ikemson V. State (1989) 3 NWLR (Pt 110) at 466; Mohammed V. State (2014) LPELR 22916 (SC) 22 -23 and Afor Lucky V. The State (2016) 5-6 SC 144. Again, it is equally trite that where the evidence on record pins down the accused to the scene and at the time of the crime the prosecution’s failure to investigate the defence may not be fatal. See Ndukwe V. The State (2009) 7 NWLR (Pt 1139) 43 and Kareem Olatinwo V. The State (2013) 8 NWLR (Pt 1355) 126 at 151-152.

The law indeed remains that retraction of an accused person’s confession does not by itself render the confession inadmissible and a retracted confession is not to be treated differently from any confession that is otherwise.

True, an accused’s denial of his confession made at the earliest opportunity may lend weight to the denial. However, the issue of what probative value to ascribe to the retracted confession remains within the primary jurisdiction of trial court. See R. V Sapele & anor (1952) 2 FSC 74, R.V John Agangan Itule (1961) ALL NLR 462 and Demo Oseni V. The State (2012) LPELR.

In the case at hand, appellant did not succeed in retracting exhibit B admitted in evidence after a trial within a trial had been conducted. Having been lawfully admitted, exhibit B alone which unequivocally pins down the appellant to the scene and time of the offence for which he is convicted lawfully sustains the lower court’s affirmation of his conviction by the trial court. The two courts, however, rightfully in keeping with correct principles, looked further than his clear, direct and positive extra judicial confession to hold the appellant responsible for his criminal conduct. No one is left in any doubt as to why the concurrent decisions of the two courts must prevail.

Appellant’s alibi made neither timeously nor with the necessary particulars to warrant being investigated is untenable. In addition to exhibit B, the evidence of PWI and PW2 inexorably puts the appellant at the scene, and time of the offence thereby establishing the fact of his being the person who robbed PWl of his taxi cab. Appellant’s collateral argument that the evidence led by the respondent being riddled with contradictions is unreliable for any tribunal to base its conviction of the appellant is indeed unhelpful. A scrutiny of the printed record of the appeal does not justify this off-the-mark allegation. It was the appellant who in exhibit B provided the information that the taxi cab he robbed PWI was with PW2. He had taken the taxi cab there for it to be differently painted. It was the appellant who also took the investigating police team led by PW3 to PW2, who following reports, had deposited the taxi at the police station in Okene from where it was retrieved. In the events whatever contradictions the appellant asserts in the prosecution’s case have ceased to be material and potent enough to discredit the case made out against the appellant.

It has long been settled on a long line of authorities that only material contradictions to the facts in issue in the charge and which doubt that are resolved in an appellant’s favour. See Ibrahim V. State (1991) 4 NWLR (Pt 186) 399 at 415 and Oduneye V. State (2001) LPELR-2245 (SC). Appellant’s failure to sustain his contention that the concurrent findings he appeals against are perverse certainly disentitles him to any reprieve. His lone issue is resolved against him, the unmeritorious appeal dismissed and the concurrent decisions of the two lower courts accordingly further affirmed.

Musa Dattijo Muhammad, JSC

Representations:

F. 0motosho for the Appellant.

Akintola Makinde with Bertilla Allyu for the Respondent.

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