“ 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

Daily Trust - - LAW REPORT -

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

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