In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020 Before Their Lordships
Mary Ukaego Peter-Odili
Olukayode Ariwoola
Kudirat Motonmori Olatokunbo Kekere-Ekun
John Inyang Okoro
Ejembi Eko
Justices, Supreme Court
SC.748/2016
Between
Haruna Timothy … … … Appellant
And
The People of Lagos State… … … Respondent
(Lead Judgement delivered by Honourable Ejembi Eko, JSC)
Facts
A certain Dickson Abimbola Akinola (PW1) imported some vehicles, including a 2001 Toyota 4Runner SUV and other goods into Nigeria. On 5th July, 2008, while PW1 and his agents (PW2 and PW3) were driving the vehicles from the port, the 2001 Toyota 4Runner SUV ran out of fuel along Isolo-Ilasa Expressway, Lagos and some hoodlums started harassing them. The Appellant and two other Naval Officers intervened, by shooting into the air to disperse the hoodlums. Thereafter, they demanded for compensation for their efforts. In appreciation, PW1 and his agents gave the Naval Officers the sum of N7,000.00. The Naval Officers were not content with the sum offered, and demanded for the sum of N100,000.00 for the loss of the bullet they shot to disperse the hoodlums. When PW1, PW2 and PW3 could not meet their demand, they put a gun into PW3’s mouth and threatened to shoot him. Thereafter, they seized the Toyota 4Runner SUV, laptops, computer accessories and other personal effects in the car and drove off, leaving a phone number with which they directed PW1 and others to contact them for recovery of the items. Subsequently, the Appellant and his colleagues spoke with PW1, PW2 and PW3 on the phone demanding for higher compensation, but they later broke off the communication.
PW1 reported the matter to the Police, who used the aforesaid phone number to establish contact with the Appellant, and subsequently, arrested him. The Appellant escaped from Police custody, but was re-arrested. The Nigerian Navy was contacted and an Orderly Room Trial was conducted, before the Appellant was handed over to the Police. The Toyota 4Runner SUV and other goods were not recovered, and the other two Naval Officers could not be traced.
The Appellant was consequently, charged before the High Court of Lagos State for the offence of armed robbery contrary to Section 402(2)(a) of the Criminal Code Law, Cap C17, Laws of Lagos State, 2003. At the conclusion of trial, the Appellant was convicted and sentenced to death. Dissatisfied, the Appellant unsuccessfully appealed to the Court of Appeal, and this led to a further appeal to the Supreme Court.
Issue for Determination
The following sole issue was determined by the Apex Court –
Whether the Prosecution proved the offence of armed robbery beyond reasonable doubt against the Appellant.
Arguments
On one hand, counsel for the Appellant argued that the circumstances thrown up in this case, show that the prosecution did not discharge the burden of proof against the Appellant beyond reasonable doubt; and so, the conviction could not stand. He argued that the Appellant’s defence of alibi was not investigated, and same was not considered by the court. Counsel contended further that, there were discrepancies in the evidence of the prosecution witnesses, and the identification of the Appellant was questionable. He submitted that, the trial court did not attach any probative value to an alleged confessional statement (Exhibit 5) of the Appellant which the Court of Appeal wrongly relied on, when there was no appeal against the finding of the trial court in respect of same. He relied on the case of BADMUS v ABEGUNDE (1999) 11 NWLR (Pt. 627) 493, in support of his position. Counsel submitted on behalf of the Appellant, that mens rea for the offence was absent. He argued that the criminal intent to steal the SUV and permanently deprive the owner of it, was not shown; consequently, with the missing necessary ingredient, the conviction relating to stealing could not be sustained; and so, armed robbery is not made out. He cited TANKO v STATE (2003) 16 NWLR (Pt. 114) 597 at 636.
On the other hand, counsel for the Respondent argued that the evidence before the trial court was sufficient to meet the ingredients of the offence charged, in proof beyond reasonable doubt. He submitted that the defence of alibi was debunked, as the Prosecution was able to show that the accused person was at the scene of the crime when the offence was committed, and could not have been elsewhere. He cited the case of EGWUMI v THE STATE (2013) 13 NWLR (Pt.1372) 525 at 531. He also stated that the statement of the Court of Appeal regarding the confessional statement, was an obiter dictum. Further, counsel submitted that the evidence before the trial court, clearly identified the Appellant as one of the robbers. He submitted that identification evidence is the best, and that it rendered an identification parade unnecessary. Counsel submitted for the Respondent that the concurrent findings of the lower courts cannot be disturbed, as they were neither perverse nor shown to result a miscarriage of justice in the process. He relied on EBEOIWE v THE STATE (2011) 7 NWLR 402.
Court’s Judgement and Rationale
In its decision on the sole issue, the Supreme Court held that in a charge of armed robbery, for the Prosecution to succeed, it must prove (a) that there was a robbery or series of robberies; (b) that one or more of the robbers were armed; and (c) that the Appellant was one of the robbers. The court found that the evidence of PW2 of how the Appellant corked his gun, pointed it at him and thereby put him in a state of fear of imminent harm before he drove off the SUV, was not challenged at all under cross-examination. It was, therefore, open to the court to rely on same – BOSHALI v ALLIED COMMERCIAL EXPORTERS (1961) ALL NLR.
On the Appellant’s defence of alibi, the Apex Court held that, the defence of alibi fails when an offence was committed, and the accused could not have been elsewhere. The court referred to decision in EGWUMI v THE STATE (supra). The court found that PW1, PW2 and PW3 placed the Appellant at the scene of the crime, and identified him during an identification parade without hesitation; whereas, the Appellant did not give evidence as to his whereabouts at that particular time, and his witnesses did not give details of the whereabouts of the Appellant. The court concluded that, the evidence of the prosecution witnesses dislodged the defence of alibi.
Regarding the submission on the Court of Appeal’s alleged reliance on the confessional statement (Exhibit 5), the Supreme Court agreed with counsel for the Respondent, that the comment made by the Court of Appeal concerning Exhibit 5 was a passing remark which did not change or enhance the course of events.
On whether the Appellant was identified, their Lordships held that the best identification of an accused person, is the evidence given by the victim of the crime. The court relied on the authority of OKOSI v STATE (1989) 1 NWLR (Pt.100) 642, in holding that the evidence of PW1, PW2, PW3 and PW4 as to the incident were clear, unambiguous and uncontroverted, as they identified the Appellant as one of the Naval Officers who threatened them with a gun and snatched the vehicle from PW1, PW2 and PW3.
Deciding the issue of discrepancies in the testimonies of the prosecution witnesses, the court held that for an accused person to benefit from discrepancies in evidence led by the Prosecution, it must be shown that such discrepancy is substantial and fundamental to the main issue in controversy before the court.
Then, with respect to the contention by the Appellant that at the time of taking away the vehicle, it was a type of lien for the sum demanded and that there was no criminal intent to steal the SUV or permanently deprive the owner of it, their Lordships held that a person who violently or menacingly extorts money from his victim, cannot be the creditor of his victim. There was no evidence, to support the assertion of the Appellant. There was no pleading before the court, on lawful temporary taking of possession of the vehicle for any legitimate purpose. The submission was merely that of counsel, and given the position of law, a counsel cannot, in the guise of final written address, give evidence from either the Bar or in the address. Bare statement from the Bar, has no force of evidence – ONU OBEKPA v COP (1980) 1 NCR 113.
Concluding its determination of the issue, the Apex Court decided that the illegality of a brazen extortion, appearing in the cloak or garb of violent demand for gratification, cannot in anyway, morph into the extortionist enforcing his legitimate right for the sum violently and illegally demanded. It follows that the submission of the Appellant that the vehicle was taken as a lien for the sum demanded, cannot stand in law. This is more so, as the vehicle in question had not been seen or returned.
Appeal Dismissed.
Representation
C.O.P Emeka and S.T. Oyerinde for the Appellant.
T.K. Shitta-Bey with E.R. Agu, I.M. Gbadamasi, Florence Pius-Anyalador and O.O. Osusanya for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)
