‘Where An Accused Identity Doubtful, Offence Can’t Be Prosecuted’

 Musa Dattijo Muhammad

     Kumai Bayang Aka’ahs

    Amina Adamu Aucle

    Paul Adamu Galinje

    Sidi Dauda Bage

Justices, Supreme Court    
      SC. 319/2015

      
  Between

Yisa Abdulrahman ———–Appellant

            
        And

The State———————— Respondent2. Oboye Ayode &
Company —–Respondent

Judgment Delivered by Musa Dattijo Muhammad, JSC

  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.