MADAGWA V. THE STATE

• Pages: 147-175

MADAGWA

V.

THE STATE

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147

5

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MADAGWA V. THE STATE

SUNDAY MADAGWA

V

10

THE STATE

SUPREME COURT OF NIGERIA

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

15

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KARIBI-WHYTE,



J.S.C.

AGBAJE,



J.S.C.

CRAIG,

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J.S.C.

2nd December, 1988

APPELLANT

RESPONDENT

SUIT NO. SC 2/1988

20

Criminal Law -Armed Robbery, contra section 1(a) of the Robbery and Firearms (Special

Provisions) Decree, No. 47, 1970 as amended by Robbery and Firearms (Special

Provisions) (Amendment) Decree (No. 2), 1974 - Defence -Alibi - Evidential burden,

where lies - Duty of courts - Bare plea of alibi - Whether complete defence.

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Criminal Procedure- Appeals - Appellate Court calling in aid the provisions of s. 148(a)

Evidence Act to affirm conviction - Effect - Raising on appeal questions relating to

findings of fact not raised at trial - Competence - Courts - Desirability or otherwise of

resorting to presumptions where there is direct evidence - Formulation of issues for

determination - Guiding parameters.

Evidence - Presumptions of fact - S. 148(a), Evidence Act - When person in possession of

stolen goods may be fixed with theft or receipt thereof - Proximity of theft to de facto

possession - Doctrine of recent possession - Applicability forfixing guilt defences -Alibi

- Evidential burden on accused - When discharged - Duty of Court - Identification, where

positive and unequivocal - Whether personal characteristics material.

ISSUES:

1.

Whether a bare plea of alibi by an accused person is a complete defence to a

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criminal charge.

2.

Where a trial Court convicts an accused person on the basis of proven facts,

could an intermediate appellate court be said to have erred merely because, in

affirming the conviction, it observed that having regards to the facts as proved,

the presumption under section 148(a) of the Evidence Act would apply to affix

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the accused with guilt.

3.

What is the duty of a trial judge where an accused person discharges his evidential

burden in regard to the defence of alibi?

4.

In what circumstances should the presumption under section 148(a) of the

Evidence Act be drawn to fix a person found in possession of stolen goods with

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the guilt for theft or for receiving stolen property?

5.

When can it be said that a person found in possession of stolen goods is

conclusively

the thief or receiver, since the presumption under section 148(a)

of the Evidence Act is not irrebuttable on mere proof of

de facto

possession.

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6.

148

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

Where several persons are found in joint possession of stolen property in

circumstances which suggest that they are the thieves, is a discrepancy as to

their number at the time they were found material to the presumption under

section 148(a) of the Evidence Act.

7.

Whether the evidential burden on an accused person setting up the defence of

alibi is discharged if the accused merely asserts that he was not at the scene of

crime at the material time.

8.

Where the identification of an accused person by a complainant who was a

conscious victim of the crime alleged was positive and unequivocal, can the

question of personal characteristics and physical features of the accused not

having been raised at trial, be entertained on appeal.

OBITER:

1.

Whether it is desirable to resort to the presumption under section 148(a) of the

Evidence Act where there is sufficient direct evidence on which an accused

person can be convicted of an offence involving stealing.

2.

To what parameters should counsel restrict himself when formulating issues for

determination under the practice Rules in that regard?

FACTS:

On the 21st day of June, 1979, appellant and two others induced one Olayele

Usiola, a taxi driver, to drive them from lfe to Ede where they were to bring their sick

mother back to Ife. The Taxi driver was to be paid the sum of ten Naira (N10.00) for

the journey to and fro. At a village near Ede, the appellant and his confederates told

the driver that they had arrived their destination, whereupon the latter drew up and

parked his car to enable the former bring in their sick mother. However, the appel-

lant and his confederates, instead of bringing in their sick mother, set upon the taxi

driver, beat and dragged him out of the taxi cab. Brandishing guns, the assailants

dispossessed the driver of the car and made away in it. The taxi driver duly lodged

a report of the robbery at the Ede Police Station the same day. At about 5 p.m. on

the same day, appellant and five others went to the village of Ugbonheri where they

demanded money from a woman (who became p.w. 1) to enable them re-spray the

car in Bendel State Taxi colours. The woman, being suspicious, reported the mat-

ter to the village head. When the village head confronted the appellant and his party,

they could not give a satisfactory account of themselves and the village head raised

an alarm. The appellant and his colleagues took flight, but were apprehended at a

road block at about 1.00 a.m on the 22nd day of June, 1979, by a night watchman.

When they were searched, three locally made pistols were recovered from them. All

six men were handed over to the police. Appellant then made a statement in which

he claimed that he was in his house on the material day when the 1st and second

accused persons came to him and that the 1st accused had claimed that he had just

bought the car which brought them. Following further investigations, the three ac-

cused persons were arraigned in an identification parade at the Police Station lba-

dan; where the taxi driver identified all three as those who had robbed him of his taxi

cab on the 21st day of June, 1979.

At their trial for armed robbery contra section 1(1) of the Robbery and Firearms

(Special Provisions) Decree, 1970 as amended, four eye witnesses testified for the

prosecution. They were: (1) p.w. 1, the woman who had seen the appellant and five

others in the car on the evening of the day the car was stolen and from whom the

appellant had demanded money for re-spraying the cab: (2), the village head (p.w.

2) who had raised an alarm when the appellant and his colleagues could not explain

themselves, (3), the night watchman (p.w. 3) who apprehended the appellant and

his confederates and (4), the victim of the robbery himself who had seen and talked

with the robbers on the day he was robbed and later identified them in an identifica-

tion parade. In his evidence-in-chief. appellant asserted that he was not at the scene

of the crime on the day in question (which was what he had claimed in his statement