Fabian Nwaturuocha V. The State

FABIAN NWATURUOCHA V THE STATE

LRLR VOL 5 PART 54 2011

RATIO

1. CHRISTOPHER MITCHELL CHUKWUMA-ENEH JSC
2. JOHN AFOLABI FABIYl JSC
3. OLUFUNLOLA OYELOLA ADEKEYE JSC
4. SULEIMAN GALADIMA JSC
5. BODE RHODES-VIVOUR JSC

FACTS

The trial judge convicted and sentenced the appellant to 11 years imprisonment and a fine of two hundred and fifty thousand naira as mandated by the applicable law for the offence of robbery punishable under section 298 of the Penal Code. At the trial court, the appellant was arraigned for the offence of robbery. The respondent maintained that the appellant robbed one Taye Musa (P.W.1) a driver of his commercial vehicle, Toyota Starlet car with Registration No. AA 4445 ABJ at gun point around 6.30 pm on 22^nd October, 2004. On 15/6/05 when the charge was read to the appellant, he pleaded not guilty.

The prosecution called two 'witnesses to substantiate their case. Thereafter, the appellant testified in his own defence and called two other witnesses. In the judgment delivered on 24th January 2008, the learned trial Judge convicted the appellant and sentenced him as stated above. The appellant felt unhappy with the stance of the trial judge and appealed to the court below which heard the appeal and found same to be unmeritorious in its own judgment handed out on 18th February, 2010. It dismissed the appeal and affirmed the judgment of the trial judge.

The appellant still felt aggrieved and has decided to appeal to this court below which heard the appeal and found same to be unmeritorious in its own judgment handed out on 18th February, 2010. It dismissed the appeal and affirmed the judgment of the trial judge.

In conclusion, the Supreme Court held that this appeal lacks merit and it should be dismissed.

PRINCIPLES DECIDED IN THE CASE

1. Whether the prosecution proved the case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the appellant by the Court of Appeal. Learned counsel for the appellant stated the ingredients of the offence of robbery vide the provision of section 296 of the Penal Code. He submitted that it is an immutable principle of law that the prosecution must establish the guilt of an accused person beyond reasonable doubt in a criminal case. He asserted that such a duty remains static until discharged by the prosecution. He referred to the case of Ogidi v. The State (2005) 5 M.J.S. C. 155 at 173 174. On the other hand, learned counsel for the respondent submitted that for the prosecution to secure conviction for the offence charged herein, it must prove that there was robbery; that the robbers were armed and that the appellant was the robber or among the robbers. He cited the cases of Bozin v. The State (1985) 2 NWLR (PI. 8) 465 at 469
2. Whether the learned Justices of the Court of Appeal misdirected themselves on their evaluation of the evidence with which they found that the appellant did not give a detailed particularization of his whereabouts on the crucial day of the offence, which misdirection in turn, led to a miscarriage of justice to the appellant. The issue relates to the plea of alibi put up by the appellant. Learned counsel for the appellant felt that his client gave sufficient particularization of his whereabouts on the crucial date of the offence charged in establishing his alibi. Learned counsel cited the case of Udoebre v. The State (2001) 5 M.J.S.C. 146 at 156. He urged that the affirmation of the conviction of the appellant by the court below, being erroneous on point of law, should be set aside. Learned counsel for the respondent on this issue submitted that where an alibi has been raised and there is a visual and positive identification of the accused which is believed by then trial court, the appellate court should not disturb such a finding. He felt that where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him. Learned counsel cited the cases of Okon Udo Akpan v. The State (1991) 5 SC1VJ 1

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