Henry Otti v. The State

I, on 4th day of March, 1993, dismissed this appeal and reserved the reasons for so doing to today, I hereby give the reasons.
On the 21st day of June, 1982, a lady by the name Titilayo Fatunbi went to cash a sum of N6,199.90 at a bank along Broad Street, Lagos. After collecting the money she hailed a taxi and asked to be conveyed to Apapa. She saw the driver alone in the car and was advised to take a back seat as the front door would not open. After moving a little from the front of the bank the driver stopped to pick up two men. On insisting that she was going to Apapa the driver told her that he wanted to go through Apongbon to link with the express way to Apapa. However, Instead of making a turn to climb the bridge onto the dual carriage-way to Apapa, the driver crossed into Victoria Island and thence to Apese on Lekki Peninsula. The appellant and his two friends now at large, stopped at Apese Beach and removed two strands of Titilayo Fatunbi’s hair – one each from the front and the back of the head respectively. They murmured some incantations she was to repeat after them, placing the strands of her hair on her lap. They then demanded for all valuables on her with the threat that her end would come if she did not comply. They took her money she withdrew

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from the bank with two cheques i.e. N6,199.90, her rings and earrings and bangles, they threw her out of the car and headed back towards Lagos. Another taxi cab arrived at the scene and P.W.1 narrated her story to the driver; he gave her free ride to Tinubu Square and gave her N5 for her bus fare.
On the 29th June, 1982, barely a week after she was robbed of her money and jewelry, she saw the appellant in the same taxi cab with a passenger at Ojuelegba on Lagos Mainland. There was a traffic jam and she accosted the appellant and raised an alarm which attracted passers by. The appellant was taken to the police station. The P.W.1 identified a cassette containing songs by Ebenezer Obey which was played in the car to muffle her possible alarm or any cry for help at the Apese Beach as there was then a lonely photographer nearby who was oblivious of the goings on in the car. She also recognized her ring, now worn by the appellant. She produced her earrings which form a set with the ring. The defense of the appellant on oath is that his mother gave him the ring; the mother, giving evidence on oath could only say the ring resembled the one she gave him. The ring is certainly a part of the set of earrings the P.W.1 produced. The appellant in his voluntary statement to the police merely denied robbing the P.W. 1. In the witness box on oath he claimed his car was at the workshop for repairs on that particular day. The defense that his mother gave him the ring and that his car was on the date of the robbery with the mechanics for repairs never came up in his voluntary statement to the police; it arose only when he entered the witness box to give evidence on oath.

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Learned trial Judge in a well-reasoned judgment concluded that the prosecution had proved its case beyond reasonable doubt and convicted the appellant as charged for robbery under S.402(1) Criminal Code Law. His appeal against this conviction was dismissed by the Court of Appeal. This appeal is against the decision of the Court of Appeal.
Brief of Argument was filed on behalf of the appellant wherein the following issues were formulated for determination:
“ISSUES FOR DETERMINATION:
1. Whether in the circumstances of this case, the charge against the appellant could be said to have been proved beyond reasonable doubt?
2. Or alternatively, whether in the circumstances of the case, the charge of robbery under Section 402(1) of the Lagos State Criminal Code against the appellant was established beyond reasonable doubt.
3. Whether in the circumstances of the case, a charge of robbery ought to have been preferred against the appellant.
4. Whether in the circumstances of the case, it could be said that the identification of the appellant eight (8) days after the incident took place was proper when Titilayo Fatunbi, prosecution witness I could not point to any peculiar or outstanding features that could have led one into concluding that it was the appellant who committed the offence.
5. Whether the 21 year jail sentence imposed on the appellant is not excessive?”

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I shall first deal with the identification of the appellant by the complainant. The appellant’s counsel submitted that there was no proper identification of the appellant. I must say that identification of an accused person is not all that magical if in the whole evidence the accused is positively identified. The appellant raised the issue that the memory of the complainant was not reliable, but looking at the whole evidence, the trial judge had reason to hold as such and the Court of Appeal rightly affirmed the findings of the trial judge. The P.W.1 i.e. the complainant positively identified the car and the driver who is the accused/appellant and gave clear evidence of the audio cassette in the glove compartment of the car and the music recorded therein. The only defense the appellant seemed to proffer on his being identified only arose when he was giving evidence on oath when he claimed, albeit, without much emphasis, that on the day in question his car now in issue was with a mechanic for repairs. It was not an alibi and he never pursued it at the trial Court and at the Court of Appeal. It is not an issue in this Court. It is therefore to be restated that identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. The best identification was the instantaneous recognition of the car that was used to take the P.W. 1 to the Apese/Lekki Beach and the recognition of the appellant as the driver on that fateful day. There was hardly any need for lining up the appellant among others for the P.W.1 to identify. It is not in all cases that identification parade is necessary; and whereas in this case the P.W.1 right in the heavy traffic several miles away from the scene of crime

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identified not only the driver but also the car, an identification parade is not only superfluous but completely unnecessary, [Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455]. The P.W.1had every opportunity to observe the appellant. The offence took place in broad daylight, the appellant and his companions were not masked or disguised and she was able to identify the car and the content of the glove compartment. It was not a fleeting encounter, it took several minutes of driving from Marina on Lagos Island to Victoria Island and thence to Lekki Peninsula.
The Criminal Code Law of Lagos State in S. 401 defines robbery in this vein!
“Any person who steals anything and, at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is said to commit robbery.”
Threat of actual violence as required by law must include the very situation of helplessness whereby the victim had no option but to comply with all commands of the assailants, whereas in this case, the P.W.1 was a voluntary fare paying passenger who entered the car, her staying in the car was no longer voluntary when against her request she was being taken off course in a state where she felt she was kidnapped. The appellant and his two companions now at large put P.W.1 in great fear and verbal issuance of threat would be superfluous. The very fact of her being alone against three men who were snatching forcibly her rings, earrings, money and other

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valuable items manifest nothing but robbery, the more so when she was taken to an isolated place.
On the whole the trial Court’s decision was rightly upheld by the Court of Appeal and for the foregoing reasons I also dismissed this appeal.

KARIBI-WHYTE, J.S.C.: After argument in this appeal on the 4th March, 1993
I had no hesitation in dismissing the appeal. I indicated on that day that I will give my reasons today.
I have read the reasons given by my learned brother Belgore J.S.C., in his judgment. I agree entirely with him. I wish merely to make some comments on the defense of identification put forward by the appellant. The only plausible defense raised by appellant was that there was no proper identification of the appellant. He denied the offence and in his evidence on oath stated that the car in question was with a mechanic for repairs on the day in question.
Now, a plea of alibi which should have been raised at the earliest opportunity was not raised until the appellant went into the witness box to give his testimony.  In the circumstance the Police had no opportunity to investigate the alibi, if the defense is to be so regarded. Again, the strongest evidence which should have been adduced by appellant in support of the alibi was that of the mechanic who repaired the car. Such evidence would have gone to show when the car was brought to him for repairs and when it was released after repairs. No such evidence was before the Court of trial. It is therefore safe to assume, as the courts below did, that an alibi was not in issue. It was

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a defense feebly raised which could not withstand the gale wind of available contrary evidence.
The evidence of P.W.1 who was the complainant against who the offence was committed relating to the identity of the appellant left no doubt in the mind of the trial judge about appellant’s identity P.W.1 did not only identify at first sight the car which took her to Apese/Lekki beach where the offence was committed on her, she also recognized appellant as the driver of the car. The offence took place in broad daylight and for quite sometime, P.W.1 I was with them. Appellant and his compatriots were not masked and the period between the commission of the offence and the identification of appellant was only about eight days. P.W.1 had every opportunity to observe appellant during the event which was still fresh in P.W.1’s memory. The question of the recollection of the facts being dimmed by time therefore did not arise.
It is important to consider the corroborative facts of the accurate enumeration of the contents of the glove compartment of the car, and the coincidence of the dress ring appellant took from her and was wearing matching the earrings of P. W.1. With such a formidable army of identifying facts, it seems to me somewhat awkward and unreasonable to expect the mounting of an identification parade to identify the well known culprit. I think it is ordinary good sense and consistent with the speedy administration of justice and the doing of effective justice, that where the evidence to the Police is satisfactory and the complainant or victim is not in doubt that the accused person committed the offence and could be identified, it is unnecessary to conduct an identification parade. An

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identification parade is only relevant where the Police is confronted with the determination of whether a particular person suspected or another was the person who committed the offence. In the circumstances of this case, the identity of appellant has been established beyond doubt.
It is therefore unnecessary to call for an identification parade. See Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455.
The offence of robbery in the Criminal Code of Lagos State is defined in Section 401 as follows:
“Any person who steals anything, and. at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is said to commit robbery.”
On the facts of the case as round by the trial Judge and accepted by the Court below, P.W.1 the victim of the appellant and his confederates now at large, was compelled to ride in the car in great fear for her life, or at least actual bodily injury. It was in that circumstance that she was compelled to surrender, and where she hesitated, forcibly snatched her dress ring, ear rings, money and other valuable items. This conduct comes within the meaning of robbery in section 401 of the Criminal Code. This is because the property was taken without the consent of P.W.1 by threats of violence immediately before, and it was also retained by similar threat of violence.

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Above are my reasons for dismissing this appeal on the 4th March, 1993.