Daily Trust - - LAW REPORT -

This is an ap­peal against the judge­ment of the Court of Ap­peal, Ibadan Di­vi­sion (here­inafter re­ferred to as the court be­low) de­liv­ered on 12th April 2011 which up­held the de­ci­sion of the trial court for Armed Rob­bery.

The ap­pel­lant and two oth­ers namely Abubakar Mo­hammed and Idowu Shittu were ar­raigned be­fore the Ogun State High Court, Ota Ju­di­cial Di­vi­sion on a six count charge of Con­spir­acy to Com­mit Armed Rob­bery and Armed Rob­bery con­trary to sec­tions 5(b) and l(2)(a) of the Rob­bery and Firearms (Spe­cial Pro­vi­sions) Act 1990 as amended by the Tri­bunal (Cer­tain Con­se­quen­tial Amend­ments .etc) Act, 1999. The ap­pel­lant pleaded not guilty to the charge. The prose­cu­tion called 7 (seven ) wit­nesses to prove its case and each of the ac­cused per­sons tes­ti­fied in his de­fence. At the end of the trial the 1st ac­cused and the ap­pel­lant (who was the 2nd ac­cused) were con­victed and sen­tenced to death while the 3rd ac­cused was dis­charged and ac­quit­ted.

The ap­pel­lant was dis­sat­is­fied and has fur­ther ap­pealed to this Court on 9 grounds of ap­peal. The ap­pel­lant for­mu­lated six is­sues for de­ter­mi­na­tion which read as fol­lows:

1. Whether the trial court has ju­ris­dic­tion to try the ap­pel­lant on an in­for­ma­tion filed by the At­tor­ney - Gen­eral of Ogun State in re­spect of an of­fence un­der an Act of the Na­tional As­sem­bly be­ing an of­fence ex­clu­sively pre­served for the At­tor­ney - Gen­eral of the Fed­er­a­tion un­der sec­tion 174 of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria (as amended) (Ground 1 of the No­tice of Ap­peal)

2. Whether the in­for­ma­tion upon which the ap­pel­lant was tried was not in­com­pe­tent in view of the fail­ure of the prose­cu­tion to file same within the manda­tory time frame of 21 days stip­u­lated by sec­tions 9 (3) and 12 (5 J of the Armed Rob­bery and Firearms Act (Ground 2 of the No­tice of Ap­peal)

3. Whether the ir­reg­u­lar­i­ties in the tak­ing of the plea of the ap­pel­lant at his ar­raign­ment were not of such fun­da­men­tal na­ture as to deny the ap­pel­lant fair trial and thus ren­der the whole pro­ceed­ings a nul­lity. (Ground 3 of the No­tice of Ap­peal)

4. Whether the court be­low was right in agree­ing with the trial court in the cir­cum­stances of the case, an iden­ti­fi­ca­tion pa­rade was not nec­es­sary, given the fact that the ap­pel­lant was nei­ther ar­rested at the scene of crime nor did any of the prose­cu­tion wit­nesses know him be­fore the com­mis­sion of the crime (Ground 4 of the No­tice of Ap­peal)

5. Whether the court be­low was right in hold­ing that the ap­pel­lant did not pro­vide suf­fi­cient par­tic­u­lars to have availed him­self of the de­fence of al­ibi (Grounds 5 and 8 of the No­tice of Ap­peal)

6. Whether given the sur­round­ing cir­cum­stances of this case, the court be­low was right in re­ly­ing on the doc­trine of re­cent pos­ses­sion in af­firm­ing the con­vic­tion of the ap­pel­lant for the of­fence of Armed Rob­bery (Grounds 6. 7 and 9 of the No­tice of Ap­peal).

The re­spon­dent adopted the is­sues for­mu­lated by the ap­pel­lant in the ap­peal.

If is­sues 1,2 and 3 are re­solved in favour of the ap­pel­lant this will re­sult in the nul­li­fi­ca­tion of the trial. I there­fore in­tend to take the three is­sues to­gether and also is­sues 4 and 5 while is­sue 6 will be treated separately.

On the first is­sue learned coun­sel for the ap­pel­lant sub­mit­ted that sec­tion 174 of the 1999 Con­sti­tu­tion con­fers the pow­ers on the At­tor­ney - Gen­eral of the Fed­er­a­tion to pros­e­cute of­fences un­der any Act of the Na­tional As­sem­bly such as the Rob­bery and Firearms (Spe­cial Pro­vi­sions) Act. He ar­gued that sec­tion 9 of the said Act which pur­ports to con­fer pow­ers on the At­tor­ney -Gen­eral of the State to pros­e­cute of­fences un­der the Act can­not con­fer such pow­ers that are not al­lowed by the Con­sti­tu­tion since sec­tion 174 is not made sub­ject to any other law in force. He con­tended that sec­tions 9(2) and (3) and 12 of the Rob­ber)1 which the 6 count charge was read to the ap­pel­lant to­gether, and he was asked to plead to all the counts at once was not in com­pli­ance with the rule set out in Ka­jubo vs The State (1988) 1 NWLR (Part 73) 21. He fur­ther ar­gued that the com­mu­nity plead­ing led to a mis­car­riage of jus­tice be­cause the ap­pel­lant could not com­pre­hend the en­tire 6 count charge as he could not un­der­stand what al­le­ga­tions he was fac­ing in the in­for­ma­tion. Sec­tion 174 of the 1999 Con­sti­tu­tion (as amended) em­pow­ers the At­tor­ney - Gen­eral of the Fed­er­a­tion to in­sti­tute and un­der­take crim­i­nal pro­ceed­ings against any per­son be­fore any court of law in Nigeria. The sec­tion pro­vides as fol­lows:

“174- (1) The At­tor­ney - Gen­eral of the Fed­er­a­tion shall have power -(a) to in­sti­tute and un­der­take crim­i­nal pro­ceed­ings against any per­son be­fore any court of law in Nigeria, other than a court - mar­tial, in re­spect of any of­fence cre­ated by or un­der any act of the Na­tional As­sem­bly”’.

Sec­tion 211 of the 1999 Con­sti­tu­tion (as amended) con­tains the same pro­vi­sion for the At­tor­ney - Gen­eral of the State in re­la­tion to laws passed by the State House of As­sem­bly and it says:

“211 - (1) The At­tor­ney - Gen­eral of a State shall have power –

(a) to in­sti­tute and un­der­take crim­i­nal pro­ceed­ings against any per­son be­fore any court of law in Nigeria other than a court-mar­tial in re­spect of any of­fence cre­ated by or un­der any law of the House of

Learned coun­sel for the ap­pel­lant

is aware of this pro­vi­sion; hence the ar­gu­ment that it is in­con­sis­tent with Sec­tion 174 of the Con­sti­tu­tion and the call that the said sec­tion to­gether with Sec­tion 12 of the same Act be de­clared a nul­lity

and Firearms Act are in­con­sis­tent with sec­tion 174 of the 1999 Con­sti­tu­tion and urged that the}’ be de­clared in­valid to the ex­tent of the in­con­sis­tency. He re­pro­duced sec­tions 9(3) and 12(5) of the Act and ar­gued that the re­spon­dent did not com­ply with the time frame of 21 days from the ap­pel­lant’s ar­rest to file in­for­ma­tion against him and so lost the pros­e­cu­to­rial pow­ers to file the charges and pros­e­cute the ap­pel­lant. He sub­mit­ted that the en­tire in­for­ma­tion and trial were a nul­lity and the trial court did not have the ju­ris­dic­tion to try the ap­pel­lant be­cause the in­ves­ti­ga­tion was not con­cluded within 7 days of his ar­rest: nei­ther was in­for­ma­tion filed within 7 days of the case file from the Po­lice in ac­cor­dance with sec­tion 9(3) of the Act. He main­tained that the trial court’s ar­raign­ment of the ap­pel­lant in the pro­ceed­ing of 15th May 2002 in

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