Abubakar Mohammed V. The State

Areas of Law:

CRIMINAL LAW, LAW OF EVIDENCE, APPEAL, CONSTITUTIONAL LAW.

Summary of Facts:
The Accused/Appellant was arraigned with two others on a 6 count charge of conspiracy to commit armed robbery and armed robbery contrary to sections 5 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments) ETC) Act 1999. They all pleaded not guilty to the charge. The learned trial Judge convicted and sentenced the 1st and 2nd Accused to death while the 3rd Accused was discharged and acquitted. The 1stAccused/ Appellant appealed to the Court of Appeal Ibadan, which dismissed the appeal and reduced the sentence of death to 21 years imprisonment. Still not satisfied with the judgment the 1st Accused/Appellant appealed against the conviction and sentence to the Supreme Court.

Held:
Appeal dismissed.

Issues for Determination:

• Whether non compliance by police investigations with the time frame prescribed under section 12 (5) of the Robbery and Firearms (Special Provisions) Act (as amended) rendered the information upon which the appellant was tried null and void, irrespective of the exemption in section 12 (6) thereof?
• Whether the trial of the appellant by information filed by the Attorney – General of Ogun State without the fiat of the Attorney General of the Federation rendered the trial a nullity, irrespective of provisions of section 9 (2) of the Robbery and Firearms (Special Provisions) Act (as amended)
• Whether the arraignment of the appellant and consequently the entire proceedings of the trial court was not a nullity for non – compliance with section 215 of the Criminal Procedure Law of Ogun State?
• Whether the appellant ought not to be availed of the defence of alibi given the totality of evidence adduced at the trial?
• Whether the prosecution proved its case against the appellant beyond reasonable doubt?

 

Rationes:
COMPETENCE TO FILE AN INFORMATION – WHERE THE COMPETENCE TO FILE AN INFORMATION IS NOT ESTABLISHED, THE TRIAL WILL BE A NULLITY
“It is the law that the issue of competence to file an information and institute criminal proceedings is fundamental and when such competence is not established this Court will declare the trial a nullity. See: Queen vs Owoh(1962) 1 ALL NLR 659.”PER K.B. AKA’AHS, J.S.C

DEFENCE OF ALIBI – THE DEFENCE OF ALIBI MUST BE RAISED AT THE EARLIEST OPPORTUNITY TO ENABLE THE POLICE INVESTIGATE SAME FOR IT TO AVAIL AN ACCUSED PERSON.

“For the defence of alibi to avail an accused person, such a defence must be raised at the earliest opportunity and with sufficient particulars to enable the police investigate it. See: Okosi vs State(1989) 1NWLR (Part 100) 642; Onyegbu vs State(1995) 4 NWLR (Part 391) 510.” PER K.B. AKA’AHS, J.S.C

DEFENCE OF ALIBI- MEANING OF THE DEFENCE OF ALIBI
“Alibi means elsewhere. The defence of Alibi means that at the time the crime was committed the accused person was not at the scene of the crime, and so it is impossible for him to be guilty of the crime”. PER O. B.RHODES-VIVOUR, J.S.C

DEFENCE OF ALIBI – ONUS OF ESTABLISHING THE DEFENCE OF ALIBI – THE DEFENCE OF ALIBI WILL SUCCEED IF THE ACCUSED PERSON UPON HIS ARREST, GIVE SUFFICIENT PARTICULARS OF HIS WHEREABOUT AT THE TIME THE CRIME WAS COMMITTED

“The onus of establishing alibi is on the accused person since it’s a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity after his arrest he gives to the police sufficient particulars of where he was at the time the crime was committed, and Police investigation of his alibi turns out to be true.The defence of alibi would crumble like a pack of cards where there is stronger evidence against it. For example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Okpanefe v. State (1969) 6NSCC p.382 Arebamen v. State (1972) 7NSCC p.194.”PER O. B.RHODES-VIVOUR, J.S.C

DEFENCE OF ALIBI – AN ACCUSED PERSON MUST RAISE THE DEFENCE OF ALIBI AT THE EARLIEST OPPORTUNITY IN ORDER TO BENEFIT FROM SAME
“To be entitled to the beneficent effect of the defence of alibi, an accused person must raise it at the earliest opportunity, Hassan v The State [2001] 6 NWLR (pt 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person, Ibrahim v The State[1991] 4 NWLR (pt 186) 399; Nwabueze v The State[1988] 3 NWLR (pt 86); Ikemson v The State [1989] 3 NWLR (pt 110) 455.What is more, the said defence must be unequivocal as to the particulars of his whereabouts and those present with him, Onyegbu v The State[1995] 4 SCNJ 275, 285-286; Ibrahim v State (supra); Balogun v AG, Ogun State[2002] 6 NWLR (pt 763) 512, 535-536; Eke v The State(2011) LPELR – 1133 (SC) 16”.PER O. B.RHODES-VIVOUR, J.S.C

DEFENCE OF ALIBI – THE BURDEN IS CAST ON THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI WHEN SAME IS RAISED AT THE EARLIEST OPPORTUNITY – EFFECT OF FAILURE TO INVESTIGATE THE DEFENCE OF ALIBI
“It is only where an accused person, such as the appellant, raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v State[2000] 4 NSCQR 60 and to disprove same, Eke v The State(supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v The State(1965) ANLR (Reprint) 199; Bello v. Police[1956]SCNLR 113;Odu and Anr v The State[2001] 5 SCNJ 115, 120; [2001] 10 NWLR (pt.772) 668.” PER C. C. NWEZE, J.S.C

Statute Referred To:
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Robbery and Firearms (Special Provisions) Act 1990
Tribunals (Certain Consequential Amendments) ETC) Act 1999