Identification parade unnecessary where witness knew suspect

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, […]

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 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 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 Assembly;”
The contention by the appellant is that sections 174 and 211 have clearly defined the powers of the Attorney – General of the Federation and that of the State respectively and the enactment under which the appellant and the co – accused were charged is a federal enactment or an Act of the National Assembly: consequently the Robbery and Firearms (Special Provisions) Act does not fall within the purview of the powers conferred on a State Attorney – General to purport to file information for the purpose of prosecuting an offender against the Act and section 9(2) of the Robberry and Firearms (Special Provisions) Act which allows the State Attorney – General to prosecute for offences under the Act is inconsistent with the Constitution which is the grundnorm and by virtue of section 9(3) of the said Constitution, it should be declared null and void.
The Robbery and Firearms (Special Provisions) Act, 1990 gives power to the State Attorney – General to institute proceedings in respect of the offences created by the Act. Section 9(2) of the Act specifically provides as follows:
“9(2) Prosecution of offences under this Act shall be instituted by the Attorney – General of the State or where there is no Attorney – General, the Solicitor – General of the State in respect of which the tribunal was constituted or by such officer in the Ministry of Justice of that State as the Attorney – General or the Solicitor – General as the case may be, may authorize so to do”.
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.
The constitutionality of the trial of offences under the Robbery and Firearms (Special Provisions) Act being undertaken by a State Attorney -General was settled in Emelosu vs State (1988) 2 NWLR (Part 78) 524 (1988) 1 NSCC Vol. 19 page 869 where, a full court was empanelled by the Chief Justice of Nigeria, and the Attorney – General of the Federation was invited to make submissions on the constitutional point. In that case the appellant was charged with, tried and convicted of the offence of armed robbery in the Imo State High Court contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and was sentenced to death. The appellant appealed to the Court of Appeal, and contended that the offences created under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 were Federal Offences and that the Attorney – General of Imo State lacked the required competence to institute and prosecute such offences without the express authority of the Federal Attorney – General.
To be continued