“ The plea of alibi though timeously raised was rightly rejected because the appellant was found in the vicinity of the crime shortly after the robbery and not only that he was found in possession of the stolen items
Continued from last week The appellant also challenged the applicability of the rules of procedure applicable in Imo State in Criminal cases to the offences created under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. The appeal was dismissed. On a further appeal to the Supreme Court it was held – 1. That by virtue of the provisions of Section 274(4)(b) of the 1979 Constitution, the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 became an existing law of the State and “Robbery” per se is a residual matter, while the Act as amended was deemed to have been made by the State House of Assembly and in view of this offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 (as amended) are not federal but state offences.
2. That by virtue of Section 191 of the 3 979 Constitution, the power to institute the prosecution of criminal cases is vested in the State Attorney-General and because the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 operated as a State Law in so far as Armed Robbery is concerned, the State Attorney - General for Imo State had the locus standi as at the 14th day of May, 1982 and the question of delegation of authority does not arise.
The facts and issues contained in Emelogu’s case supra apply mutatis mutandis to the present appeal.
It is provided in Sections 9(3) and 12(5) of the Robber and Firearms (Special Provisions) Act 1990 as follows:
“9(3) Prosecutions in respect of any person caught committing an offence under section 1(2) of this Act shall be instituted within seven days after the receipt by the Attorney - General of the State concerned or, where there is no Attorney - General, by the Solicitor General of the State, as the case may be of the file containing the completed police investigation in respect of the offence.
12(5) Police investigation into cases relating to any person caught committing an offence under section 1(2) of this Act shall be concluded not later than seven days after the arrest of the offender and the file containing particulars of such investigation shall be sent to the Attorney - General of the State concerned or, where there is no Attorney - General, to the Solicitor General of the State not later than seven days after the conclusion of investigation “.
These provisions were deleted by the Tribunals (Certain Consequential Amendment etc) Decree No. 62 of 1999 Constitution. Section 1 states:
“1. The enactments specified in the first column of Parts 1 & II of the schedule to this Decree are amended to the extent set out in the second column of those Parts of that schedule”.
The sections which were deleted are sections 9, 10. 11, 12 and 14 of the Act. These sections were deleted before the appellant was arraigned and so he cannot claim any benefit from the repealed sections of the Act which in the eyes of the law never existed. In the proceedings of 15th May 2002 when the 6 count charge was read and explained to the appellant he pleaded not guilty. Section 215 of the Criminal Procedure Law of Ogun State provides that -
“215 The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”
The charge was read and explained to the appellant. He pleaded not guilty I cannot fathom how it can be argued that the appellant who pleaded not guilty to the charge will complain of lack of fair hearing. The appellant was represented by learned counsel who could have taken objection to any unorthodox handling of committing the crime.
Learned counsel submitted on the plea of alibi that the Justices of the court below came to a wrong conclusion when they held that the appellant had failed to discharge his duty of providing sufficient material on his defence of alibi when he stated that he was coming from a naming ceremony from his sister’s place when he was attacked and beaten up and then taken to the police station. He said this fact was made known to the Police at the earliest possible time and it was left for the Police to find out if there was a naming ceremony which the appellant claimed he attended and whether he was with his sister.
An identification parade is useful and indeed essential whenever there is a doubt about the power of a witness to recognise an accused person or when the identity of the accused person is in dispute. It is not necessary where the witness knew or was familiar with the accused or suspect well before the alleged crime was committed. In Orok vs The State (2009) 13 NWLR (Part 1052) 633 the Court of Appeal enumerated the circumstances under which an identification parade is necessary. They are:
“(1) The accused was not arrested at the scene and he denies taking part in the crime; or
(2) The victim did not know the accused before the offence; or
(3) The victim was confronted by the accused for a very short the case by the prosecution. This complaint is without a basis and it is discountenanced. Issues 1, 2 and 3 are resolved against the appellant.
ISSUES 4 & 5
These issues deal with identification and alibi Learned counsel for the appellant submitted that the court below was in error when it agreed with the trial court that identification parade was not necessary, or a prerequisite to the investigation against the appellant. He argued that the appellant was never arrested at the scene of crime nor did any of the witnesses who testified against him state that they knew him before the commission of the crime. He submitted that identification of an accused must be properly ascertained in all instances except where the accused is caught at the scene and in the process of committing the offence or where the accused confesses to