Supreme Court, December 2016
ACTION, APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
The Accused/Appellant was charged before the High Court of Ogun State, sitting at Ilaro, with the offence of armed robbery punishable under S.1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He pleaded not guilty to the charge. The case for the prosecution was that on the 1st day of March, 1982, P.W. 2– Safuratu Ogunkayode went to Ajegunle market, near Owode Egbado, to buy some food stuff. After she had completed her shopping, she boarded a commercial vehicle which was to convey her and her goods to her home at Agege.
It was her evidence that the vehicle arrived at Attan village in the evening where the driver stopped for a long time, after he had informed the passengers that he was waiting there for somebody. After some time the Accused/Appellant joined them and boarded the vehicle then they continued the journey. On their arrival at a place called Asore junction, the vehicle left the main road and proceeded on an untarred side road.
Having travelled some distance on the untarred road, the vehicle pulled up, and as soon as it came to a standstill, its headlamp was switched off. The Accused/Appellant who was sitting next to me slapped me on the face and snatched my money which was N600.00. I struggled with him and he tore my clothes but he too dropped a shoe.
The Accused/Appellant produced a pistol and four of us who were passengers were pushed out of the vehicle while the driver and the accused escaped with our goods.
The Accused/Appellant raised the defence of Alibi which contained two contradictory particulars as to where he was at the time of the commission of the crime.
At the conclusion of the trial, the court found the Accused/Appellant guilty as charged, and sentenced him to death. An appeal to the Court of Appeal challenging
the said decision was dismissed. Still not satisfied, he has further appealed to the Supreme Court.
Whether any irregularity occurred, in the course of trial, as to render that trial a nullity, having regard to section 12 of the Robbery and Fire Arms (Special Provisions) Decree 1984, and section 1(4) of the Robbery and Fire Arms (Special Provisions) Amendment) Decree, 1984?
If the answer to (1) above is in the negative, the issue would then arise as to whether, such non-direction or mis-direction on the defence of Alibi, sufficiency or propriety or otherwise of the proof of identification, as elicited in the Record of proceedings, would vitiate the case for the prosecution, or
Whether the prosecution had proved their case against the accused (sic) beyond reasonable doubt, as required by law, or was the instances or particulars of misdirection, such as to warrant the inference or conclusion that, there was mis-trial and thereby entitling the appellant to a retrial or a verdict of acquittal?
DEFENCE OF ALIBI- DUTY OF THE PROSECUTION ONCE THE DEFENCE OF ALIBI IS RAISED
“It is a well established principle of law that once an alibi has been raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. See Adedeji v.The State (1971) 1 All N.L.R. 75.” PER S. KAWU, J.S.C.
DEFENCE OF ALIBI – EFFECT OF FAILURE OF THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI
“It is also settled that when the defence of alibi is promptly and properly put up, failure on the part of the prosecution to investigate it may cast some doubt on the probability of the case for the prosecution. See Fatoyinbo v. Attorney-General, Western Nigeria (1966) W.N.L.R. 4 at page 6, where Coker, J.S.C., delivering the judgment of the Court, said:-
“It is not a rule of criminal law that the prosecution must call every available witness or piece of evidence and where a defence of alibi is suggested or timorously put forward by an accused person, the onus resting on the prosecution is no more than that of adducing as much evidence as, if accepted, would demolish the suggestion or inference that the accused person was not available at the scene of the crime at the material time and satisfy the court or jury of the contrary.
Admittedly, where such a defence is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the Prosecution. That does not warrant nor justify the suggestion that the prosecution specifically has to rebut in a particular way the defence of alibi.” PER S. KAWU, J.S.C.
“ALIBI”– MEANING OF”ALIBI”- DUTY OF AN ACCUSED PERSON WHO RELIES ON THE DEFENCE OF ALIBI
“For as the Supreme Court said in Gachi v. The State (1965) N.M.L.R. 333 at 335 :-
“The word “alibi” means ”elsewhere” and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the ‘evidential burden’, that is, the burden of adducing or eliciting some evidence tending to show this, rests on him.” – PER S. KAWU, J.S.C.
CRIMINAL TRIAL PROCEDURE -SECTION 287 OF THE CRIMINAL PROCEDURE LAW OF OGUN STATE
“Now, Section 287 of the Criminal Procedure Law of Ogun State (Cap. 30), Laws of Ogun State of Nigeria, provides as follows :-
“(1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and –
(a) If the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely –
(i) he may make a statement without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or
(ii) he may give evidence in the witness box, after being sworn as a witness, in which case he will be liable to cross-examination; or
(iii) he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any, and
(b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.
(2) If the defendant or his legal practitioner states that he has witnesses to call but that they are not present, the court may, in the circumstances set forth in section 186 to 193 take the steps therein mentioned to compel their attendance. ”
The provisions of section 287(1)(a) are mandatory, and where an accused is not represented by counsel, it is the duty of the trial Judge to explain fully to him his rights under the section –
See Godwin Josiah v. The State (1985) 1 S.C. 406. So fundamental is compliance with section 287(1)(a) that this Court has held that non-compliance with it is an irregularity which would lead to the setting aside of a conviction unless the Court was satisfied that there had been no substantial mis-carriage of justice –
See Aruaeme v. The State (1965) N.M.L.R. 62. In the case of Prophet Mallim Sheriff Kajola v. Commissioner of Police (1973), 1 All N.L.R. (part 2) 31, at p. 37, Elias, C.J.N. (as he then was), delivering the judgment of the Court, after setting out the provisions of s.287 of the Criminal Procedure Act, which corresponds with the section under consideration, said as follows:-
“We hold that section 287(1) of the Criminal Procedure Act lays a duty upon the court of trial to put the three alternatives to the accused specifically and also to draw his attention to the provision of section 288 of the Act, especially, as in this case, where the accused is either not represented by counsel at his trial or is so represented but his counsel is not in court at the material stage in the proceedings. The court record must show clearly that the trial court has done so.”
As clearly stated in the above passage, the duty to put the options to the accused specifically becomes mandatory only when an accused is not represented by counsel, this particular point was stressed by Eso, J.S.C. in Josiah’s case (supra) when His Lordship, at page 415 said:-
“One must always bear in mind that what called for this elaborate election is the fact that the accused is not represented by counsel. In other words the advice which his counsel, had he been so represented, would have given him is now ascribed as a duty to the court trying his case as one which is contained in s.287(1) of the Criminal Procedure Law.” – PER S. KAWU, J.S.C.
COMMENCEMENT OF TRIAL – WHEN DOES TRIAL OF A CRIMINAL CHARGE COMMENCE
“In my view, trial of a criminal charge commences when the accused pleads to the charge. For no witness need be called to give evidence, if the accused pleads guilty to the charge.” PER D. O. COKER, J.S.C
PRESUMPTION OF RETROACTIVITY – WHEN IS THE PRESUMPTION TO RETROACTIVITY RESORTED TO?
“The general rule is well settled that where the words used in a statute are unequivocal and unambiguous and show a retroactive intent they should be given that effect. There is also a presumption against retroactivity. The presumption against retroactivity is only resorted to for the protection of vested substantive rights.
The presumption is not applied with respect to pending actions or to enactments which affect only the procedure and practice of the courts. Hence where the question is not one affecting vested rights, or is a question of practice and procedure, the presumption does not apply.” PER A. G. KARIBI-WHYTE, J.S.C
HEARING OF AN ACCUSATION OF AN OFFENCE – WHEN DOES HEARING OF AN ACCUSATION OF AN OFFENCE COMMENCES
“The beauty of our adversary procedure is that a person accused of the commission of a crime is immediately given a hearing by being confronted with the allegation and given an opportunity to admit or deny the accusation. See S.33(6) of Constitution 1979.
The hearing of the accusation of an offence commences with the proceedings leading to the reading of the charge to the accused and his pleading to it. As is provided by S.218 of the Criminal Procedure Act, –
“Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial”. – PER A. G. KARIBI-WHYTE, J.S.C
JURISDICTION- APPROPRIATE TIME FOR RAISING THE ISSUE OF JURISDICTION IN A CRIMINAL TRIAL
“Similarly, a want of jurisdiction which ordinarily could be raised at any stage of the trial, is better raised before plea is taken -see R. v. Adiukwu (1939) 5 WACA 132.
The plea of the accused may, if it is one of guilty of the offence charged result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (see S.218 Criminal Procedure Act, Cap.43).” PER A. G. KARIBI-WHYTE, J.S.C
PLEA- WHETHER THE PLEA OF AN ACCUSED PERSON CAN BE OBTAINED THROUGH HIS COUNSEL
“This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – see R. v. Heyes (1951) 1 K.B. 94, S.215 CA. Act. He cannot plead through his counsel- see R. v. Ellis (1973) 57 Cr. App. R.571.
Thus the plea of the accused is a proceeding in the hearing of the charge or information on which the accused has been arraigned.” PER A. G. KARIBI-WHYTE, J.S.C
CRIMINAL TRIAL – WHEN IS CRIMINAL PROCEEDINGS PART-HEARD
“Thus a plea of not guilty entered in a criminal information or charge against an accused person is a hearing with respect to the information or charge laid. Accordingly the proceedings in respect of such information or charge which continues after plea is part-heard.” PER A. G. KARIBI-WHYTE, J.S.C
Criminal Procedure Law
Robbery and Firearms (Special Provisions) Decree No. 47 of 1970