From the Court



APPEAL NO. CA/IL/C.105/2014
USMAN SHEU……………………………………….              APPELLANT
THE STATE ………………………………………..             RESPONDENT
The appellant, who was the 2nd accused at the High Court (the trial
Court) Kwara State, was arraigned on two (2) counts charge which
alleged that the appellant on or about 10th December 2007 together
with one Hassan and another person both now late and two other persons
at large attacked a 14-passenger Bus along Jebba/Bose Saadu Road
within the jurisdiction of the trial court and at gun point robbed one
Bode Samson and other passengers in the Bus of their properties, and
did conspire to rob one Bode Samson and other passengers in the Bus of
their belongings, contrary to ‘Section 1(2) of the Armed Robbery and
fire Arms (Special Provision) Act No. 5, Cap. 398 Laws of Federation
of Nigeria 1990 and 97 of the Penal Code. He pleaded not guilty to the
charges and six (6) witnesses (tagged 1 – 6) testified for the
prosecution. The Appellant gave evidence in his own defence and called
on witness. Learned Counsel for both the prosecution and the defence
addressed the trial court and in a reserved judgment, the learned
trial Judge found the Appellant guilty as charged and sentenced him to
Briefly, the facts of the case as found by the trial Court are as follows:-
On 10/12/2007, the 2nd accused was among a gang of Armed Robbers who
robbed a 14-Seater Passenger Bus along Jebba/Bose Sa’adu Road. That on
the aforesaid date, one Bode Samson was robbed with other passengers
in the Bus, of a SAGEM MY X telephone handset after the bus was
stopped at Aderan Junction. The 2nd accused person with others ordered
the passengers to disembark from the bus and further directed that all
of them should lie down flat on the ground while robbery operation
The robbery happened between 5.00pm and 5.30pm. About a month
thereafter and specifically on 07/01/2008, the 1st accused took the
handset to one Oloye Ajayi (PW5) to assist him to buy SIM card and
also recharge the handset, he discovered that the handset has its SIM
card. PW5 removed the SIM and puts it in his own handset and dialed
some numbers. One of the numbers dialed informed PW5 that he knows the
owner of the said handset and that the owner was robbed between
Jebba/Bode Sa’adu by Armed Robbers who collected handset and money.
While the PW5 told the 1st accused to sit down, he sent one Suraju to
call the Police. The police came and arrested the 1st accused in PW5’s
shop. The 1st accused informed the Police that he purchased the
handset from one Hassan. The Police consequently got the owner of the
handset (PW3) and the driver of the passengers bus (PW4) to attend the
Jebba/Police Station.
Before PW3 and PW4 got to the Police Station, the Police Officers who
were directed to arrest the said Hassan had led the 1st accused in
search of Hassan and other accused persons. Immediately Hassan saw the
police, he opened fire and attempted to run away. He was shot together
with one other accused and both died instantly. The 2nd accused was
arrested and taken to the Police Station with corpses of the two (2)
accused persons.
Following the arrest of Appellant, he denied knowledge of the offence
with which he was arrested. He pleaded alibi. In his statement to the
Police, and in his testimony at the trial, he said he lives in Lagos
at a place Alabarago. He is a motorcyclist in Lagos and he only came
to Kosa Village where he was arrested on a visit to his father some
five (5) days before his arrest. He claimed that he was not arrested
in the company of the other accused but at a restaurant.
I have already indicated, the prosecution called six (6) witnesses.
The vital witnesses were however, PW3 and PW4. PW3 is the owner of the
hand while PW4 is the driver of the passenger Bus.
I think the most important issue for determination is of
identification parade raised by the Appellant. The Learned Counsel for
Appellant has submitted that an identification parade is necessary in
the instance case as there is no evidence to show that PW3 and PW4 or
any prosecution witness in this case knew the Appellant before the
incident. The submission of learned Counsel for the Respondent is that
the peculiarity of this case does not warrant any identification
parade, because the peculiarity and circumstances of this offence
links the Appellant beyond reasonable doubt and makes identification
parade dispensable. That the testimonies of PW3 and PW4 sufficiently
link the Appellant with the commission of the offence and he refers to
their testimonies contained on Pages 36 – 39 of the records with
regards to the specific role played by the Appellant. It was further
submitted that the identification of Appellant by PW3 and PW4 done in
the presence of the two (2) accused persons jointly standing trial is
a clear testimony to the correctness of the identification of the
On failure of the Appellant to cross-examine PW3 and PW4 another
ground upon which the trial Court convicted the Appellant; I am of the
view that this is also wrong, having regard to the duty of the
prosecution to prove his case beyond reasonable doubt at all times.
Where he fails to meet the stand of proof required by the law there is
no duty on the Appellant to disprove the evidence of the prosecution.
The onus on the prosecution is one that never shifts and until it is
so discharged there is no obligation on the Appellant to rebut the
prosecution’s evidence…
“I was living in Lagos. I came from Lagos five days before my
arrest…I cannot remember where I was on 10/12/2007.” THis is a plea
of alibi in law.
The undoubted effect of this piece of evidence is that the Appellant
could not have participated in the robbery that took place along Jebba
Road when he was at all material times in Lagos…
“Such that where as in this instant case, an accused in addition on to
his not being arrested at the scene of crime he pleads, alibi, a
proper identification parade ought to be conducted.”
The evidence of the Appellant that he did not know where he was on the
10/12/2007, should not in view, diminish the claim that he was not at
the scene of crime. This is because the evidence of the Appellant that
he was not at the scene of the crime by virtue of his living in Lagos
and is a motorcyclist there and that he only came to Kosa Village some
five days before his arrest is clear and unambiguous. This piece of
evidence have no doubt buttressed the defence of alibi raised by the
Appellant, for it has corroborated and reinfored the fact that at the
time of teh crime, the Appellant was not in the ascene of the crime he
was somewhere else. In this view, I disagree with the trial Judge when
in his judgment he found as follows:-
“I am convinced that the 2nd accused (Appellant) participated in the
execution of the two offences levied against him….It is enough that
the prosecution’s witnesses sighted the 2nd accused (Appellant) among
the culprit holding a gun.”
Finnaly, one does not need a soothsayer to see that from the evidence
I have highlighted that the Appellant was not at the scene of the
crime. The evidence called by the prosecution did not in any way link
him with the commission of the offence with which he was charged,
tried and convicted. The prosecution clearly failed to prove its case
beyond reasonable doubt as required by law.
In my Judgment, this Appeal has merit, it must be allowed, I
therefore, allow the Appeal, set aside the Appellant’s conviction and
sentence. He is consequentially acquitted and discharged.

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