SALEH DAWAI v. THE STATE

CORAM

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORII-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria

PARTIES

SALEH DAWAI

APPELLANTS 

THE STATE

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Appellant was arraigned at the trial High Court  for the offence of Armed Robbery. It was the Respondent’s case that  on the 31st day of January, 2004, at Kachia in Kaduna State, the Appellant  forcefully entered the residence of one Alhaji Maharazi Saidu while armed with a locally made pistol and robbed the said victim of the sum of N500,000 (five hundred thousand naira) only. At the trial, the Prosecution called four witnesses and tendered one exhibit to prove the charge against the Appellant while the Appellant gave evidence in his defence.

After the conclusion of the trial, the learned trial Judge convicted the Appellant for committing the offence of armed robbery and was accordingly sentenced to 14 years imprisonment. Dissatisfied with the decision of the learned trial Judge, the Appellant filed an appeal at the Court of Appeal, Kaduna which dismissed the appeal for lacking in merit.

Being further aggrieved by the judgment of the lower court, the Appellant lodged the instant appeal vide a Notice of Appeal filed on 5th April, 2013 and containing two grounds of appeal.

HELD

Appeal dismissed.

ISSUES

Whether the court below was right to have affirmed the conviction and sentence of the Appellant for the offence of armed robbery.

RATIONES DECIDENDI

PROOF IN CRIMINAL PROCEEDINGS-BURDEN/STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

“The law is trite and well established that in criminal proceedings, the onus lies on the prosecution to prove and/or establish the guilt of an accused person beyond reasonable doubt. To be able to achieve this, the prosecution .must ensure that all necessary and vital ingredients of the charge are proved by evidence. By Section 135 of the Evidence Act, 2011, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. This proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Fabian Nwaturuocha v The State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (pt. 1242) 170, Osuagwu v State (2013) LPELR – 19823 (SC), Adekoya v The State (2017) LPELR – 41564 (SC), Oseni v The State (2012) LPELR – 7833 (SC), (2012) 5 NWLR (pt. 1293) 351.”– Per OKORO, J.S.C.

ARMED ROBBERY- INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

“By Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990, armed robbery takes place where at the time of the robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed at or immediately before or immediately after the robbery, and the said offender wounds or uses any personal violence to any person. The essential ingredients of the offence of armed robbery which prosecution must prove beyond reasonable doubt to secure the conviction of an accused person include the following:-

1. that there was indeed a robbery or series of robberies;

2. that the robbers were armed with dangerous weapons; and

3. that the accused person was the robber or one of the robbers. See Afolalu v The State (2010) 16 NWLR (pt. 1220) 584, Emeka v The State (2014) LPELR – 23020 (SC), (2014) 13 NWLR (pt. 1425) 614, Musa Ikaria v The State (2012) LPELR – 15533 (SC) (2014) 1 NWLR (pt. 1389) 639, Agugua v The State (2017) LPELR – 42021 (SC).”– Per OKORO, J.S.C.

EVIDENCE- TYPES OF EVIDENCE TO PROVE INGREDIENTS OF AN OFFENCE

“In order to establish or prove the above ingredients of the offence of armed robbery, the prosecution’s evidence may flow from any of the following ways:-

(i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.

(ii) By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged.

(iii) By direct evidence of eye witnesses who actually saw the accused committing the offence.” – Per OKORO, J.S.C.

ADMISSION BY CONDUCT-WHAT IT ENTAILS

“There is, in law, a legal principle commonly referred to as admission by conduct. The law is that when a clear and direct accusation is made against a person, in his presence, in circumstances which should warrant instant denial, refutation, or protest from him and he does not deny, refute or protest against the making of the accusation, evidence of such could be given against him as evidence of admission by conduct. See Udo v R (1964) 1 All NLR 21 at 23, Utteh v The State (1992) 2 NWLR (pt. 223) 257, Fred Dapere Gira v The State (1996) LPELR – 1322 (SC), (1996) 4 NWLR (pt. 443) 375.” – Per OKORO, J.S.C.

ALIBI-MEANING OF ALIBI

“Alibi is a Latin word meaning “elsewhere.” It is a plea raised by a person accused of committing an offence that by the time the offence was alleged to have been committed, he was elsewhere. Thus, having regard to the time and place where and where he is alleged to have committed the offence, he could not have been present. It indeed postulates the physical impossibility of the presence of the accused at the scene of crime at the time the offence was committed because of his presence at another place. See Iheonunekwu Ndukwe v The State (2009) LPELR – 1997 (SC), (2009) 7 NWLR (pt. 1139) 43, Ozaki & anor v The State (1988) 1 SC. P. 109, (1990) 1 NWLR (pt. 124) P. 92.” – Per OKORO, J.S.C.

DEFENCE OF ALIBI-WHEN SHOULD THE DEFENCE OF ALIBI BE RAISED

“On when should the defence of alibi be raised, it is settled law that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when the accused person is confronted by the police with the commission of an offence so that the police will be in a position to investigate the alibi. See Sunday Ehimiyein v The State (2016) EPELR – 40841 (SC), Eyisi v The State (2000) 15 NWLR (pt. 691) 555 at 596, Salomi v The State (1998) 3 NWLR (pt. 85) 670 at 677. The appellant raised this alibi in court while stating his defence. This defence, in my opinion was brought up too late as he ought to have raised it at the earliest opportunity in order to give the prosecution the opportunity to investigate same. Failure to raise the defence timeously, renders the defence of alibi a non-starter. See Ehimiyein v State (supra).” – Per OKORO, J.S.C.

PLEA OF ALIBI-WHERE THERE IS POSITIVE EVIDENCE TO FIX THE ACCUSED PERSON AT THE SCENE OF THE CRIME

“Be that as it may, a defence of alibi crumbles completely in the face of compelling evidence to the contrary that fixes the accused person at the scene of crime. That is to say, if the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the court accepts, any plea of alibi by the accused, naturally collapses. See Kolade v The State (2017) LPELR – 42362 (SC), Adeyemi v The State (2017) LPELR-42584 (SC).” – Per OKORO, J.S.C.

CASES CITED

NONE

STATUTES REFERRED TO

Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990.

Evidence Act, 2011

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