OZAKI & ANOR V. STATE
On Friday , the 12th day of January, 1990
S.C. 324/70Before Their Lordships
Between
Between
Ozaki and Another ……. Appellants
And
The State ……. Respondent
……………………..A…………………….
Judgement of the Court
Delivered by
Andrews Otutu Obaseki. J.S.C
This criminal appeal raises important issues. The first is the burden of proof or onus of proof and the second is the question of standard of proof required in criminal cases to secure conviction. The other equally important issues raised are whether there is need to give direction on the issue of provocation and the issue of self defence when a defence of alibi is raised unsuccessfully in the light of the evidence on record. Finally, there is the question whether an accused can be convicted on the written statement of a co-accused made to the police in his absence. The formulation of these issues by the appellants’ counsel, Chief F.O. Akinrele, S.A.N., runs as follows:
(1) The Court of Appeal having found that there was a misdirection in the assessment of the evidence offered as alibi, was the Court of Appeal right to have dismissed the appeal of the appellants?
(2) Was the learned Judge right that there was no evidence on record to consider the case of provocation or self-defence as the appellants have retracted the story contained in their statements to the police?
(3) Was the Court of Appeal right in holding that there can be no case of provocation for acts done in the absence of the appellants?
This appeal is against the decision of the Court of Appeal sitting in Kaduna on appeal from the High Court of Kwara State holden at Lokoja. The information filed in the High Court of Kwara State charged the two appellants herein to wit:
(1) Danlami Zaki and
(2) Tukura Zaki and 5 others namely
(3) Wamba Bawa;
(4) Peter Waiyam;
(5) Musa Baba,
(6) Yusuf and
(7) Shaba Tukura
with culpable homicide punishable with death under section 221(a) read in conjunction with section 7 of the Penal Code.
The facts of this case accepted by the learned trial Judge are contained in the evidence of P.W.2, PC. No.61732 by name Abayo Abimeka and P.W. 3 No. 62376 Corporal Augustine Garuba.
Briefly, P.W. 2 and P.W. 3 went on patrol duty to Ahoko village. On getting to the village, they saw a crowd of people sad and wailing. On enquiry, accused 4 told them that one fulani man, unknown to them had shot to death their brother and ran away. They then found their way to the main road where they could get a vehicle. On getting to the main road, they stopped a bus going to Koton Karfe. They then saw late Mohammed Dan Mauta alighting from the bus and he came to P.W. 2. He enquired what was happening and as P.W. 2 was trying to explan to him, the enraged villagers (including the 1st, 2nd, 3rd, 4th and 6th accused) pounced on him and attacked him. On seeing 1st appellant armed with a cutlass, the deceased fled shouting for help. P.W. 2 in order to prevent the villagers from killing him, followed to help him but 1St appellant and others ran faster passed him and got hold of the deceased. His effort to save the deceased was unsuccessful and abortive. As he struggled with accused 1, accused 2 got the cutlass from accused 1 and cut the deceased on the head with it. Accused 3 and 4 used the butts of their dune gun to hit the deceased. Accused 6 who held a long knife used it to cut the legs of the deceased. P.W. 2 could not recognise accused 5 and 7. The picture will not be complete without a narration of the facts of events that brought the rage on the crowd.
The day was Christmas day, 25/12/81. The 1St appellant was in his house at Ahoka village enjoying Christmas when his daughter, Felicia brought news to him that Fulani hersdmen and their cows were right inside his farm and that the cows were eating his crops. The 1st appellant then dispatched his brother Philip Ozaki to investigate. He followed soon after. When Philip got to the farm, an altercation ensued between him and a fulani herdsman armed with a dane gun. Soon afier, the fulani man opened fire and shot Philip dead with the dane gun. At this juncture, the fulani herdsman fled and when 1st appellant could not find him, he sought the assistance of the police. The victim was named Mohammed Dan Mauta and the date he was attacked and killed was the 25th day of December, 1981. The scene of crime was at Ahoko village in Osere Local Government Area within Kwara Judicial Division.
This case is a typical example of transferred malice. The appellants were alleged to have mistaken the victim for the person, a cow-herdsman who shot and killed Philip Ozaki, a relation of the appellant sent to ward off the herdsmen and their cattle from their farm, and seriously wounded another person by name Moses.
Seven accused persons were arraigned before Adeniyi, J., and tried for the offence of culpable homicide punishable with death contrary to section 221(a) of the Penal Code. Eight witnesses testified for the prosecution. In addition to the seven accused persons who testified in their own defence, eight defence witnesses were called. D.W. 1, D.W. 2 testified at the instance of 1st accused appellant. D.W. 3 testified on behalf of 2nd accused appellant to corroborate his alibi. D.W. 9 Shenlo Ozaki was the father of accused 1 and the deceased Philip Ozaki who is his eldest son.
After hearing evidence and addresses of counsel, Adeniyi, J., delivered a considered judgment in which he found 1st, 2nd, 5th and 6th accused persons guilty and convicted them and sentenced them to death for culpable homicide punishable with death He then found the 3rd, 4th and 7th accused persons guilty of causing grievous hurt to the deceased contrary to section 242 of the Penal Code and punishable under section 247 of the Penal Code and sentenced each of them to 2 years imprisonment.
……………………..B…………………….
Dealing with the defence of alibi set up by 1St appellant, the learned trial Judge said:
It is settled law that the defence of alibi raised by an accused is to be proved by balance of probability. I have duly considered the defence of accused I in this respect and I find it incredible and wholly unacceptable The testimony of P.W. 2 and P.W. 3 whom I believe, destroys such a hollow defence which is devoid of all merit particularly when the farm, the scene of the crime is very close to Ahoko village. It can be seen when one is in that village.
Dealing with the defence of alibi set up by the 2nd appellant, the learned trial Judge observed and commented as follows:
Accused 2, Tukuma Ozaki, testified that he travelled to Abaji on 25/12/81 where he celebrated Christmas and did not return till 5.00 p.m. This was confirmed by D.W. 1 called by accused 1 and by his own wife D.W. 3 called by him. He knew nothing about the death of Mohammed Dan Mauta whereas in his statement, Exhibit 3, he explained that he was at the village that day and that he only joined accused 1 to carry their deceased brother home. He is self contradictory and therefore unreliable.
Commenting generally, the learned Judge said:
After sifting the evidence relating to alibi pleaded by each accused as supported by his witnesses and weighing the same against the evidence proffered by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence, thereof, the respective alibi totally fails. Those pleas must be rejected and having regard to the clear and strong evidence of P.W. 2 and P.W. 3 both of whom also took part in the affest and the identification parade. See the classic case of Ortase Yanor y’. The State 1965 N.M.L.R. 337. The basic law on this point is well stated in Suberu Be/b & Ors. y. Commissioner ofPolice (195941) W.N.L.R. 124 where it was held that the burden of establishing the defence of alibi which lies on the accused is like that which lies on the defendant in a civil case, it is discharged by the balance of probability and not by proof beyond reasonable doubt. I do not see any discrepancies in the evidence of P.W. 2 and P.W. 3 and none is pointed out to me as regards the identities of the accused persons who joined hands to kill the deceased.
Of great concern to me is the statement by the learned trial Judge that:
Out of all the accused persons it was accused 2 who implicated accused I in his statement to the police, Exhibit 3 and to the effect that accused 1 killed or confessed to him that he, accused 1, killed the deceased with his cutlass. The relevant portion of his statement reads:
I also saw Danlami with the cutlass he used in killing the fulani man but blood was not on the cutlass by then again as he washed it away before he reached home.,
The statement was admitted without objection but was later retracted by accused 2… His statement Exhibit 3 will therefore be treated with great caution and used, after duly warning myself, in conjunction with other abundant corroborative evidence available in so far as it incriminates accused 1.”
Dealing with the defence of provocation, the learned trial Judge observed and commented as follows:
As all of them had pleaded alibi, a defence which fails in each case, the court has a duty to examine the evidence adduced by the prosecution and see if any defence of provocation or self defence can be deduced and sustained.
I have accordingly cast my mind back upon the totality of the prosecution evidence and am unable to find any evidence of self-defence or provocation. The defence is now nothing but absolute denials. Learned defence counsel only urged these defences of self-defence and provocation in respect of each accused merely on the assumption that Exhibit ‘2’ and ‘2A’, the confessional statement of accused 1, were properly in evidence. As it is now discarded for reasons earlier given, the court has to rely only on oral evidence of the prosecution witnesses together with the remaining uncontroverted statements of the other five accused persons to the police and the oral evidence and the denials of each of the accused persons .
The suspicion by the accused persons that the deceased was the culprit who shot Philip Ozaki dead was unfounded or baseless. At least as at that material time of the attack on the innocent deceased the accused persons should be regarded as aggressors relying on the evidence of P.W. 2 and …….. Accused 1 and 2 were not at that time put in any personal danger of their lives nor was the defence of their private property at stake
They meant to wreak vengeance on any fulanis they might happen to see around the farm and they did so on the deceased in revenge for the death of Philip Ozaki shot dead earlier in the day. Self-defence, it is said, is no revenge.
……………………..C…………………….
Turning to the issue of provocation, none of the accused persons was provoked before and at the time accused 1 got hold of the deceased and struck him with a cutlass . . The case borders on or is in line with the decisions in R. v. Afonja (1955) 15 W.A.C.A. 265.
Provocation will not be as a defence for an accused who enraged by the acts of others, kills someone who committed no provoking acts through others.
Indeed, there was no denial that the accused person’s brother and village-mate, Philip Ozaki, was in the earlier part of the day killed with a gunshot by unnamed person or fulani and that his dead body was still on the farm at the time the deceased came out of the bus and was mauled down…
All that has been said on provocation so far is putting the case too favourable for the defence. The fact remains that their defence of alibi will no longer make the defence of provocation available to them as thev will either stand or fa II by their plea. They ought not to be heard approbating and reprobating. That is to say, having pleaded alibi, they cannot fall back on the defences of provocation and self defence in the circumstances of this case.
Above all, the statement of accused 2, Tukura Ozaki, neatly links accused 1 with the commission of the offence or killing of the deceased.
As already mentioned, it may be argued that the statement of accused 2 Exhibit 3 and 3A respectively, emanated from an accomplice. This is so by virtue of their being charged and tried together in this case. But it is submitted that accused 1 can be convicted on Exhibit 3 provided the court receives the evidence with caution and duly directs itself as to the danger of convicting accused I on any uncorroborated evidence (i.e. Exhibits 3 and 3A;) of accused 2 as stated in R. v. Lagos (1941) 67 W.A.C.A. 123.1 have however found corroboration in abundance in the evidence of P.W. 5 and P.W. 2 and P.W. 3 together with exhibit 5 where in the types of the wounds states are similar to those inflicted by the accused persons on the deceased.
Accused 2 has fixed accused I in Exhibit 3…
Accused 1 on Exhibit 3 alone without corroboration, I accept it and find that Mohammed Dan Mauta died on 25/12/81 his death having been caused directly by the acts of accused 1, 2, 5 and 6 who gave him cutlass cuts or matcheted him on the head and almost severed his two feet from his body till he died.”
Aggrieved by the decision of the learned trial Judge, all the 1st, 2nd, 5th and 6th accused persons appealed to the Court of Appeal against the decision complaining inter a/ia of misdirection in law on the defences of alibi, self defence and provocation, and identification and generally the burden of proof. In a well considered judgment, the Court of Appeal allowed the appeal of the 3rd and 4th appellants and affirmed the conviction of the 1st and 2nd appellants. The 1st and 2nd appellants were still dissatisfied and have brought this appeal to this Court.
The Court of Appeal dealt with the issue of the erroneous consideration of the question of alibi by the learned trial Judge at length. Ogundere, J.C.A. (with whom Wali, J.C.A. and Akpata, J.C.A. concurred) commented on the issue of alibi as follow:
This court in this division, in Chewmeh V. The State (1986) 2 N.W.L.R. (Part 22) page 331 at pages 342-343 expatiated on the law regarding the defence of alibi in my own contribution thus:
In this regard, it is settled law that an accused person whose defence is an alibi, that is he was elsewhere at the time of the commission of offence, has the onus to bring evidence on alibi, which when considered with the case for the prosecution creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden is far less than that in civil case, i.e. balance of probabilities. His mere assertion that he was elsewhere does not, however, discharge the burden unless the prosecution during the investigation found it to be true or is in doubt whether or not it is true. Eze V. The State (1976)1 S.C. p.125 at 130. Gashi & Ors. v. The State (1965) N.M.L.R. p.333 per Brett, J.S.C., at p.334….
The next question is to find out whether or not the police investigated the defence of alibi by all the appellants. The answer is in the negative. The reason could be found in the testimony of two eye witnesses to the killing both being policemen in mufti, who testified to the hearing.
The failure to investigate the defence of alibi must have created a serious lacuna in the evidence led by the prosecution. Without the investigation and evidence thereof, the truth or falsity of the evidence of the two eye witnesses P.W. 2 and P.W. 3 cannot be established. However, the appellants have appealed against the decision of the Court of Appeal and the grounds argued before us are:
(1) That the Court of Appeal erred in law in dismissing the appeal of the appellants when it was patent from their findings that the learned trial Judge misdirected himself in law on the onus of proof by the prosecution on the issue of alibi raised by the appellants and that such misdirection occasioned a failure of justice.
Particulars
……………………..D…………………….
The learned trial Judge held as follows:
After sifting the evidence relating to alibi, pleaded by each accused as supported by his witnesses and weighing the same against the evidence proferred by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence therefore the respective pleas of alibi fails.’
Whereas in point of law, the onus on the prosecution is (proof) beyond a reasonable doubt.
(2) The learned trial Judge erred in law in failing to consider the issue of self defence and provocation on the grounds that the statement of the accused raising them deviated from in their testimony in court. Whereas it was obligatory on the court to consider alternative defences on record even if not raised.
(3) That the Court of Appeal erred in law in holding that there cannot be provocation, if the appellant was not present at the time of the firing of the gun. Whereas from the evidence, the appellants were proximate enough and saw the corpse of the deceased – a sequence which makes such a distinction immaterial.
(4) That the decision is unwarranted, unreasonable and cannot be supported having regard to the (weight of) evidence.
Chief F.O. Akinrele, S.A.N., dealt with the issues raised in this appeal in an admirable manner. He was brief and to the point in his submissions.
On the issue of alibi, he submitted quite rightly that as a matter of general propositon of law, it is settled law that there is no burden of proof imposed on an accused to establish an issue affording justification or excuse at common law, such as accident, self defence or alibi as an answer to the charge. He contended, quite justifiably in law, that if an accused puts forward an alibi, the onus is not on him to prove such defence but on the prosecution to disprove it citing in support the case of R. V. Johnson (1961)1 W.L.R. 1478; Yanor V. The State (1965) N.M.L.R. 337 the dictum of Lewis, J.S.C., in Arebamen V. The State (1972) 4 S.C. 35 at 4~l and the dictum of Jkono V. The State (1973) 5 S.C. 231 at page 256.
On the issue of self-defence, he cited in support of his contention that the accused persons have no onus to discharge-the case of R. y,. Abraham, an English case reported in (1973) 3 All E.R. page 694.
On the issue of failure to consider the alternative defences of provocation and self defence, Chief F.O. Akinrele, S.A.N., learned counsel for the appellants contended and emphasised that a trial Judge must consider all alternative defences which appear on the records whatever the line adopted by counsel in the case. He found support in the dictum of Viscount Simon, L.C., in Mancini V. D.P.P. 1942 A.C. 1 at page 1 and the dicta of Lord Reading in R. V. Hopper (1915) 2 K.B. 341.
Learned counsel for the respondent in reply submitted that the learned trial Judge gave adequate consideration to the defence of alibi, provocation and self-defence raised by the appellants in their defence. He submitted further that there was no evidence of acts of provocation offered by the deceased to the appellants to avail them of the defence of provocation and self defence. He described the act of killing of the deceased by the appellants as an act of vengeance on an innocent person for the death of Philip Ozaki.
In view of the seriousness of the charge, these submissions of the counsel deserve careful and meticulous consideration. I cannot say that the statements of law on the pieces or defence of alibi and the value of the confessional statement of a co-accused have been helpful. They have been the source of serious complaints in this appeal.
ALIBI:
What is the meaning of alibi? It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first possible opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police see R. V. Lewis (1969) 2 Q.B. 1. Adjo V. The State (1986) 3 N.W.L.R. 714; (1986) 2 N.S.C.C. 815; Adedeji V. The State (1971)1 All N.L.R. 75; Gachi V. The State (1965) N.M.L.R. 333 per Brett, J.S.C. at p.334; Fatoymbo V. Attorney-General, Western Nigeria (1966) W.N.L.R. 4 Eze V. The State (1 976) 1 S.C. 125 per Obaseki, J.S.C. at 130.
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. Adedeji V. The Slate (1971)1 All N.L.R. p.75. Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this miqrnrement as was done in the case of Onafowakan V. The State (1987) 7 S.C.; (1987) 3 N.W.L.R. (Part 61) page 538; (1987) 2 N.S.C.C. 1101. The accused person only has what is referred to as evidential burden which means the duty of adducing evidence or raising the defence of alibi. Ortese Yanor & Ors. “. The State (1965) N.M.L.R. 337; Patrick Njo”ens & Ors. V. The State (1973) 5 S.C. 17 at 85; Wasari Umani “. The State (1988)1 N.W.L.R. (Pt. 70) 274 Bozim “. The State (1985) 2 N.W.L.R. (Pt. 8) 465; (1985) 7 S.C. 450; (1985) 2 N.S.C.C. 1087.
……………………..E…………………….
Once an accused person discharges the evidential burden of adducing evidence of alibi, it is the duty of the prosecution to disprove it. The duty of the learned trial Judge is to test the evidence of alibi against the evidence on the issue adduced by the prosecution and if there is doubt in the mind of the learned trial Judge to resolve it in favour of the accused.
The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. Bozim”. The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Agu v. The State (supra).
The ipse dixit of the accused, i.e. that he was not present there is not enough. To raise the defence he must give particulars of his whereabout at the particular time. Aga v. The State (supra) Ohiode v. The State (1970) N.S.C.C. 31.
The learned trial Judge in this matter while considering the duty of the accused person in respect of alibi, held as shown earlier on in this judgment that the accused had the duty to establish the alibi on a balance of probability. This phrase balance of probability was culled from the submission of counsel to the Supreme Court in the case of Ohiode & Ors. v. The State (supra) (1970) N.S.C.C. 31 at 34. Fatayi-Williams, J.S.C. (as he then was) delivering the judgment of the Court said:
It was also contended by learned counsel that since the identification of the 10th accused person by th 1st p.w. did not satisfy the learned trial Judge, this witnesses’ identification of the 1st, 2nd, 4th and 9th accused persons could not have been beyond all reasonable doubt and indeed to the extent that these witnesses said they saw the seven accused persons participating in the crime, they could not have been speaking the truth. In the learned counsel’s submission, this point is all the more important when it is realised that in order to establish the defence of alibi, it is not necessary to prove the alibi beyond all reasonable doubt it being sufficient to raise a defence on the balance of probabilities. In considering whether the learned trial Judge could have been satisfied with the case against the accused persons, Chief Williams finally submitted that the nature of their defence which was that the prosecution witnesses lied against them was material.
It was therefore not a statement of law by the Supreme Court that the accused persons’ duty in relation to the defence of alibi is to establish the defence on a balance of probabilities. Balance of probabilities means preponderance of evidence. In other words, the accused persons adduce evidence which out-weighs the evidence of the prosecution on the issue of alibi. That is not the law. As stated above, the only onus on the accused person is the evidential burden. The effect of such evidence is not dependent upon its preponderance. It may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the tribunal. It may be abundant yet raise no doubt in the minds of the tribunal.
In the instant appeal, the learned trial Judge erred in his direction on the onus of proof and standard of proof of alibi. The Court of Appeal therefore erred in affirming the conviction based on this misdirection.
What then is the law? In Arebamen V. The State (1972) 4 S.C. 35 at p. 4~ 41; (1972) N.S.C.C. 194 at 197, Lewis, J.S.C. (delivering the judgment of the Supreme Court) said:
In our view though we agree the onus is on the prosecution to disprove the alibi, as the learned trial Judge rightly stated, since we said in Adedeji V. The State S.C. 324/70 (unreported) of the 19th of February, 1971.
We think that what he was intending to say though he might have perhaps more happily phrased it, is that if an accused person wishes to put forward an alibi, it is for him to offer evidence accordingly but if he does put forward evidence then the onus is not on him to satisfy the jury that the alibi on such evidence is established but for the prosecution to disprove the alibi. We must emphasise that there is no onus on the accused to satisfy the jury on the alibi once he has put forward evidence which might establish it (cf R. “Johnson (1961)) 1 W.L.R. 1478 and Yanor V. The State (1965) N.M.L.R. 337).
Again in Ikono & Anor. V. The State (1973) 5 S.C. 231(1973) N.S.C.C. 352, it was held that
(1) The person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer and that it is a misdirection to refer to any burden as resting on the prisoner in such a case.
Ogundere, J.C.A., in his judgment misdirected himself in law when he said:
In my view as regards accused 1 and 2, 1St and 2nd appellants herein independent and responsible witnesses saw and testified to the commission of the offence and were able to identify the offenders, the rule that alibis must be investigated is therefore inapplicable in the face of credible evidence of two witnesses.
There is no such exception to the rule.
The two policemen, p.w. 2 and p.w. 3 were police witnesses and not the investigating police constables whose duty was to investigate the alibi. It is the evidence of investigating constable on the issue that could have provided the measure by which to test the credibility of p.w. 2 and p.w. 3 on the one hand and the credibility of the appellants on the other if there had been any. It would have enabled the learned trial Judge to deterinine the cogency of their evidence and the proper weight to attach to the evidence of each witness.
The erroneous statement of law by the learned trial Judge and that of the Court of Appeal on the effect of the failure of the police to investigate the alibi of the appellants has occasioned a serious miscarriage of justice. The 2nd apellant set up the alibi from the time of his arrest and maintained it in court but the 1st appellant’s alibi was put forward only in court. It is impossible for this Court to say what influence a proper and correct direction would have had on the mind of the learned Judge in regard to the cases made against the 1st and 2nd appellants. But in my opinion, the alibi of the appellants not having been proved false, is bound to create doubt in the mind of the learned trial Judge as to the guilt of the appellants and that doubt must be given in their favour. This, I hereby do.
……………………..F…………………….
CONFESSIONAL STATEMENT BY 2ND APPELLANT
I will now proceed to consider the effect of Exhibit 3A the statement of the 2nd appellant, a co-accused of the 1st appellant on the conviction of the 1St appellant.
The 2nd appellant was charged and tried along with the I St appellant. He was therefore a co-accused. The learned trial Judge was in this circumstances in error to have classified him as an accomplice. Exhibit 3A is a translation of the statement made by the 2nd accused person now 2nd appellant to the police during the police investigation. It is not a confessional statement in that the 2nd appellant never in that statement made any confession or admission of the offence charged. The only confessional statement was Exhibit “2”. It was made by the 1st appellant but was expunged or dispensed with by the learned trial Judge during the consideration of the judgment in the case. The learned trial Judge in his judgment regarded Exhibit ‘2″ as one of the main pillars of the case for the prosecution but the learned Judge held that the circumstances of the making of the statement and attestation by the Upper Area Court Judge, p.w. 7 created doubt as to the voluntariness of the statement and he dispensed with it, i.e. he expunged it from record of admissible evidence to be considered. The statement is a far cry from the facts narrated by p.w. 2 and p.w. 3 the alleged police eye Iwitnesses. The only confession in the statement is that the accused 1 followed Philip Ozaki to his farm and when the fulani herdsman saw them, he, the fulani, opened fire on them with his dane gun. Philip Ozaki was hit on the head and died. On seeing this, he pursued the fulani who took to his heel and killed him in the combat. It was not a case of an innocent fulani being attacked and killed by irate villagers (accused No, 1, 2, 3,4, 5, 6 and 7) at the bus stop on alighting from a motor vehicle.
A confession of murder induced by threat is inadmissible in evidence. See R. v. Haske (1961)1 All N.L.R. 330; [1961] 2 S.C.N.L.R. 90.
The confessional statement having been expunged no longer constituted evidence for the purpose of the judgment of the court.
Turning to Exhibit “3,” and “3A”, the statement of the 2nd appellant, the learned trial Judge held that it implicated the 1st appellant. In his own words, the learned Judge said:
Out of all the accused persons. it was accused 2 who implicated accused I in his statement to the police Exhibit 3 and 3A to the effect that accused I killed or confessed to him that he accused I killed the deceased with his cutlass. The relevant portion of his said statement reads:
I also saw Danlami with the cutlass he used in killing the fulani man but blood was not on cutlass by then again as he washed it away by the before he reached home.’ ……
His statement Exhibit 3 will therefore be treated with great caution and used after duly warning myself in conjunction with other corroborative evidence available in so far as it incriminates accused 1
Above all, the statement of accused ~ Takura Ozaki neatly links accused 1 with the commission of the offence or killing of the deceased .
But it is submitted that accused 1 can be convicted on Exhibit 3 provided the court receives the evidence with caution and duly directs itself as to the danger of convicting on the uncorroborated evidence (i.e. Exhibits 3 and 3A) of accused 2 as stated in R. v. Lagos (1941) 7 W.A.C.A. 123.1 have however found this corroboration in abundance in the evidence of p.w. 5, p.w. 2 and p.w. 3 together with Exhibit 5 wherein the types of the wounds stated are similar to those alleged inflicted by the accused persons on the deceased. Accused 2 has fixed accused 1 in Exhibit 3…
Accused J on Exhibit 3 alone without corroboration, I accept it and find that Mohammed Dan Mauta died on 25/12/81, his death having been caused directly by the acts of accused 1, 2, 5 and 6 who gave him cutlass cuts or matchetted him on the head and almost severed his two feet till he died. They should be found guilty of an offence under section 221(a) of the Penal Code.
The second appellant never repeated the statement in his testimony in court. It is an error in law to convict an accused on the statement of another accused to the police. it is a travesty of justice and gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional. Section 27(3) of the Evidence Act Cap. 62 L/FN. 1958 reads:
Where more persons than one are charged jointly with a criminal offence, and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury where the trial is one with a july shall not take such a statement into consideration as against such other persons or in whose presence it was made unless he adopted the said statement by word or conduct.
The learned trial Judge wrongly, as mentioned earlier, classified the 2nd appellant as an accomplice. As he stood trial along with 1st appellant, he was a co-accused. He did not testify against the 1st appellant. It is settled law by statute and judicial decision that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement. See E~’buomwan ~’. Commissioner of Police (1961) W.N.L.R. 257. A close examination shows that the statement Exhibit 3 and 3A is not confessional. It only narrated what 2nd appellant alleged 1st appellant told him. As he did not adopt or confirm it in court but instead denied it, is no evidence against the 1 st appellant upon which the 1st appellant can be convicted. It was therefore a serious error in law to have founded the conviction of I st appellant on it and for the Court of Appeal to have upheld the conviction.
……………………..G…………………….
It is my opinion that an incriminating statement made even in the hearing of an accused defendant, even on an occasion which could reasonably be expected to call for some explanation from him is not evidence against him on his trial of the fact therein stated save in so far as he has accepted the statement and where the statement is used to found or secure a conviction, the conviction must on appeal be quashed. In the case of Rex V. Philip Jonah & Ors. (l93~35) 2 W.A.C.A. 120, the relevant facts briefly are as follows. The appellant along with others were charged with murder. In order to establish the allegation of murder against the appellant, the learned trial Judge relied on the statement to the police of the 2nd accused, that appellant was a member of the gang which committed the offence. The 2nd accused testified and denied that he ever identified the appellant and went further and sworn that he had never seen him before his arrest.
At page 122, Deane, C.J., Gold Coast, delivering the judgment of the West African Court of Appeal consisting of Deane, Webbe, C.JJ. and Butler-Lloyd, Ag. C.J., said:
Now in the case of R. V Norton (1910) K.B.D. 496 it was laid down that when a statement is made in the presence of a prisoner implicating him and the truth of that statement is at once unquivocally denied by the prisoner, it is not evidence against the prisoner and should not be allowed to go to the jury . . . upon this authortity it is clear that the statement of Lasisi implicating the prisoner ought not to have been given in evidence against the appellant.
and at page 124, the learned C.J., said:
And lastly, the learned trial Judge was under a complete misapprehension when he stated that Lasisi’s evidence that he was a member of the gang was the evidence of an accomplice, since Lasisi had given no such evidence but had, on the contrary, said that he had never seen the accused until after his arrest, and that was the only evidence on the point given by him in the alleged statement not being evidence in any sense.
It follows that the only evidence against the accused was the evidence as to the plates and cup. The learned trial Judge misdirected the jury therefore in telling them that they could consider this evidence in connection with the direct evidence of Agbabiaka that accused was a party to the common design and took an active part in carrying it out since there was no such direct evidence, and Agbabiaka could not by repeating a worthless statement by Lasisi make it evidence.
The conviction must be quashed.”
It is surprising to observe that while accepting the portion implicating the 1St appellant, the learned trial Judge failed to accept the other part. He accepted the part implicating the 1St appellant and rejected the part raising the defence of alibi for the 2nd appellant. The portion implicating the 1st appellant is a hearsay, a narration of what the 1St appellant told him, the 2nd appellant. It narrated how he, 1St appellant saw his brother Philip Ozaki killed and how he dealt with the situation that arose. The other portion of the statement clearly exculpated accused 2-2nd appellant from any participation in the murder and establish his alibi. The acceptance of Exhibit 3A by the learned trial Judge case raises serious doubt of the credibility of p~w. 2 and p.w. 3 and the veracity of their testimony. Therefore, the misdirection on the issue of defence of alibi and the misdirection on the probative value of Exhibits 3 and 3A sufficiently disposes of this appeal.
The complaint of failure to consider the defences of self-defence and provocation is totally unfounded. The learned trial Judge gave full consideration to them in accordance with the law and his duty as a Judge.
The appeal succeeds and is hereby allowed. The decision of the Court of Appeal is hereby set aside and the conviction of the 1St and 2nd appellants quashed. In place of the conviction, a verdict of not guilty is hereby entered and the appellants are hereby aquitted and discharged.
This shall be the judgment of the High Court.
Judgement Delivered by
Uwais. J.S.C
I have had advantage of reading in draft the judgment read by my learned brother, Obaseki, J.S.C. I agree that the appeal has merit and that it should be allowed.
When, in respect of the pleas of alibi set up by the appellant, the learned trial Judge stated as follows-
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After sifting the evidence relating to alibi, pleaded by each accused as supported by his witnesses and weighing the same against the evidence proferred by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence therefore the respective pleas of alibi fails.
he was in serious error of misdirection, because in a criminal case the standard of proof by the prosecution is beyond reasonable doubt and not on “the balance of probability’ ‘-see Section 137(2) of the Evidence Act, Cap. 62. It is the burden of proof by the accused that is on the balance of probabilities. This is more so where there is a plea of alibi. In that respect the prosecution is required to investigate the alibi if it was raised by the accused in his statement in the course of investigation by the police, that is before the commencement of the trial. The burden is on the prosecution to disprove the alibi and it can only be disproved by adducing evidence which establishes beyond reasonable doubt that the accused was not absent from the scene of the crime as alleged-see section 137(2) of the Evidence Act Cap. 62. Where evidence has been adduced by the prosecution to disprove the plea of alibi, then, and only then, the accused has the onus to call evidence to weaken or discredit the evidence called by the prosecution. For section 137(3) of the Evidence Act, Cap. 62 provides-
(3) If the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused.
The standard of the proof of the alibi by the accused at that stage is on the balance of probability as was stated by this Court in Obiode & Ors. V. The State (1970)1 All N.L.R. 35 at p.40 where Fatai-Williams, J.S.C. (as he then was) said-
There is one other point when the findings of the trial Judge is looked at from the point of view of the defence. The standard ofpmof required to establish the defence of alibi is one based on the balance of probabilities. (Italics mine)
The learned trial Judge acted wrongly therefore when he ascribed the same standard of proof of the defences of alibi on both the prosecution and the accused presons. The Court of Appeal (per Ogundere, J.C.A.) in its consideration of the defences of alibi observed as follows-
Obviously, the learned trial Judge was wrong on the burden of proof on the accused as regard alibi which he said was a balance of probability. From the authorities herein and under section 137(3) of the Evidence Act, the accused needs only establish a reasonable doubt.
but went on to dismiss the appeals by the appellants herein on the following grounds-
The next question is to find out whether or not the Police investigated the defence of alibi by all the appellants. The answer is in the testimony of the two eye witnesses to the killing both being policemen in mufti, who testified at the hearing. They are PC Abayo Abimeku, P.W. 2 and CPL. Augustine Garuba P.W. 3.
In my view, as regards accused 1 and 2, 1st and 2nd appellants herein, independent and responsible witnesses saw and testified to the commission of an offence, and are able to identify the offenders, the rule that alibis must be investigated is therefore inapplicable in the face of credible evidence of the witnesses.
With respect the Court of Appeal was in error in dismissing the appeal by the 2nd appellant. This is because the 2nd appellant set up the defence of alibi timeously at the time of his arrest and maintained the defence at the trial before the High Court. The failure of the prosecution to investigate the alibi could have rendered the alibi true and thereby created doubt in the mind of the trial Judge as to whether the case for the prosecution had been proved beyond reasonable doubt-see Fatoymbo V. A.-G. Western Nigeria (1966)
W.N.L.R. 4 at p.6 where Coker, J.S.C. stated –
Admittedly, where such a defence (of alibi) is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the prosecution.
There is such doubt in the case for the 2nd appellant and it should have been resolved in his favour. Both the trial court and the Court of Appeal failed to do so.I will, therefore, resolve the doubt in his favour.
The case for the 1St appellant is however different, he did not raise the defence of alibi at his arrest but at the trial of the charge against him. The prosecution was not therefore obliged to investigate the plea of alibi and could rely on the evidence of the prosecution witnesses to disprove the alibi-see Fatayinbo’s case, (supra) at p.6; Njoven’s & Ors. V. The State (1973) N.M.L.R. 331 at p.351; Hemyo Ntam & Anor. V. The State, 1968 N.M.L.R. 86 at pp. 87~88 and Urnani~. The State (1988)1 N.W.L.R. 274 at p.294 where I observed as follows-“It is very clear from the foregoing that it does not always follow that once the prosecution failed to investigate an alibi, such failure is fatal to the case for the prosecution. The trial Judge has a duty, even in the absence of the investigation, to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi.”
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However the appeal by the 1 st appellant is bound to succeed, because the evidence relied upon by the learned trial Judge to convict him was based on the statement made by the 2nd appellant to the police~xhibit 3 which implicated him (1st appellant).
The learned trial Judge stated thus-
Out of all the accused persons it was accused 2 who implicated accused 1 in his statement to the police exhibit 3 and 3A to the effect that accused 1 killed or confessed to him that the accused 1 killed the deceased with his cutlass. . His statement exhibit 3 will therefore be treated with great caution and used after duly warning myself in conjunction with other abundant corroborative evidence available in so far as it incriminates accused 1 . . . As already mentioned it may be argued that the statement of Accused 2 Exhibits 3 and 3A respectively emanates from an accomplice. This is so by virtue of their being charged and tried together in this case. But it is submitted that accused 1 can be convicted on Exhibit 3 provided the Court receives the evidence with caution and duly directs itself as to the danger of convicting accused 1 on any uncorroborated evidence (i.e. Exbiits 3 and 3A) of accused 2 as stated in R. ~’. Lagos (1941) 7 W.A.C.A. 123 have, however, found this corroboration in abundance in the evidence of P.W. 5, P.W. 2 and P.W. 3 together with Exhibit 5 wherein the type of the wounds stated are similar to those alleged inflicted by the accused persons on the deceased.
From the foregoing it is clear that the learned trial Judge misunderstood the law as regards the statement of an accused implicating co-accused. First of all the 1st and 2nd appellants were jointly charged and tried together. They were, therefore, co-accused. Any evidence given by one of them which incriminates the other cannot, in view of the provisions of section 177 sub-section (2) of the Evidence Act, Cap. 62 be treated as the evidence of an accomplice. The subsection reads-
177 (2) Where accused persons are tried jointly and any one of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.
Secondly, the term accomplice has been considered by the Federal Supreme Court in the case of R. y’. E:echie (1962)1 All N.L.R. 113 to include the following but excluding a co-accused-
(1) A participant in the actual crime charged (participes criminis).
(2) A receiver of the property which the accused is charged with stealing:
(3) A participant in any other crimes alleged to have been committed by the accused where evidence of such other crimes is admissible to prove system or intent or to negative accident.
Where an accomplice gives evidence against an accused, the trial Judge is required by the provisions of section 177(1) of the Evidence Act, Cap. 62 to warn himself that it is unsafe to convict upon such evidence if it is uncorroborated.
Now since the 2nd appellant did not testify as an accomplice but as coacc used, his testimony could not have come within the ambit of section 177 subsection (1) of the Evidence Act, and by virtue of the provisions of subsection (2) of section 177 of the Evidence Act the trial Judge was not under any obligation to warn himself before accepting or acting on the testimony of the 2nd appellant. However, the actual position here is that the 2nd appellant did not incriminate the 1st appellant by testifying. It was his statement to the police, exhibit 3, that was held by the learned trial Judge to have implicated the 1st appellant. On examining the exhibit, it is clear that it is not a confessional statement, for nowhere in the statement did the 2nd appellant admit or state that he committed the culpable homicide charged. By the provisions of section 27 subsection (3) of the Evidence Act, Cap. 62 –
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p class=”rtejustify”>(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the same statement by words or conduct.
Since the 2nd appellant made no confession in exhibit 3 and the 1st appellant did not admit its contents by words or confuct, the learned trial Judge was in error when he considered exhibit 3 as incriminating evidence against the 1st appellant. In fact, exhibit 3 is at best a piece of hearsay evidence given against the 1st appellant which the trial Judge should not have acted upon. Furthermore, by the provisions of rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, cap. 30 of the Laws of Northern Nigeria, 1963 applicable to Kwara State –
(7)(1) When a police officer has decided to make the same complaint against two or more persons and their statements are taken separately, the police officer shall not read such statements to the other person or persons, but each of such persons shall be given by the police officer a copy of such statements and nothing shall be said or done by the police to invite a reply:
Provided that where such a person is an illiterate, the statement may be read over or interpreted to him apart by some person other than a police officer and anything said to such reader by such person when the statement is read shall not be admissible in evidence against him.
(2) If such person desires to make a statement in reply, a caution shall be administered.
There is no evidence that the provisions of this rule had been followed by the prosecution after the 2nd appellant made exhibit 3, incriminating the 1st appellant. this is a very serious omission by the police and is fatal to the prosecution’s case against the 1st appellant in view of the provisions of rule 9 of the Criminal Procedure (Statement to Police Officers) Rules, Cap. 30 which provides –
(9) Save as provided in the Evidence Law, no Statement made to a police officer by a person against whom he has decided to make a complaint shall be admissible in evidence in a court unless such statement is made in accordance with these rules.
It follows that from the point of view of the 1st appellant exhibit 3 was inadmissible by virtue of rule 9 since it was not shown by the police to the 1st appellant as required under rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, Cap. 30. Therefore, the learned trial Judge was wrong in relying on it to convict the 1st appellant of culpable homicide punishable with death.
For these reasons I too will allow the appeals by both the 1st and 2nd appellants. The decision of the Court of Appeal is hereby set aside and the convictions and sentences passed against the appellants are hereby quashed. In their place I enter a verdict of not guilty and both the 1st and 2nd appellants are hereby acquitted and discharged.
Judgement Delivered by
Kawu. J.S.C
I have had the advantage of reading in draft, the lead judgment of my learned brother, Obaseki, J.S.C., which has just been delivered. I entirely agree with his reasoning and also with his conclusion that the appeal has merit and should be allowed. For all the reasons contained in the said judgment, I too would allow the appeal. The appeal is hereby allowed and the conviction of the 1st and 2nd appellant and the sentence of death passed on them are hereby set aside. A verdict of not guilty is entered, and both appellants are hereby acquitted and discharged.
Judgement Delivered by
Agbaje. J.S.C
I have had the opportunity of reading in draft the lead judgment of my learned brother Obaseki, J.S.C. I agree entirely with him that the appeals of both appellants must succeed.
The appellants were two of the seven accused prsons who stood trial at a Kwara State High Court for the murder of one Mohammed Dan Mauta on or about 25/12/81 at Aboko Village within the Kwara Judicial Division contrary to and punishable under S.221A of the Penal Code.
The learned trial Judge Adeniyi, J., in his judgment dated 5/9/83 found four of the accused persons including the appellants guilty of the offence charged and sentenced them to death. The remaining three accused persons were found guilty of a lesser offence of causing grievous hurt and each of them was sentenced to two years’ imprisonment.
The four accused persons convicted of murder appealed against their convictions and sentences to the Court of Appeal, Kaduna Division. In that court the appeals of the present appellants who were the 1St and 2nd accused persons at the trail court failed whilst those of the other two convicted persons succeded. This is a further appeal by the appellants against their convictions and sentences.
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The thrust of the submissions of counsel for the appellants, Chief F.O. Akinrele, S. A. N., that the convictions of both appellants could not stand was predicated on the recognition by the lower court that the learned trial Judge misdirected himself in law on the standard of proof on the prosecution on the issue of alibi which the appellants undoubtedly raised in this case.
As regards the alibi raised by each of the accused persons the learned trial Judge held as follows:
After sifting the evidence relating to alibi pleaded by each accused as supported by his witnesses and weighting the same against the evidence proferred by the prosecution witnesses on that point I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence thereof the respective plea of alibi totally fails. Those pleas of alibi must be rejected having regard to be (sic) clear and strong evidence of P.W. 2 and P.W. 3 both of whom also took part in the arrest and the identification parade. See the classic case of Oi-tese Yanor V. The State 1965 N.M.L.R. 337. The basic law of this point is well stated in Suberu Be/b & Ors. Commissioner of Po/ice (~959-196l) W.N.L.R. 124 where it was held that the burden of establishing the defence of alibi which lies on the accused is like that which lies on a defendant in a civil case: it is discharged by balance of probability and not by proof beyond reasonable doubt.
The clear implication from the above is that the learned trial Judge was of the view that the standard of proof required from the prosecution in the onus on it to disprove the alibi of the accused persons was on a balance of probabilities and not on proof beyond reasonable doubt.
The Court of Appeal said on this point as follows:
Obviously, the learned trial Judge was wrong on the burden of proof. . . as regard alibi.
So, it is clear that the lower court recognised it that the trial court was in error in its view on the point in question.
In fact the following cases cited to us by counsel for the appellants to wit.
R. v. Johnson 19611 W.L.R. 1478; Yanor v. The State 1965 N.M.L.R. P.337; Arebameni v.The State (1972) 4 S.C. 35 P.40-4l; ikono v. The State 1973 5 S.C. 231 and R. v. Abraham (1973) 3 A.E.R. P.694.
make it abundantly clear that the onus is on the prosecution to negative any defence properly raised by an accused person on proof beyond reasonable doubt.
Because of the following proviso to section 20(1) of the Court of Appeal act 1976 dealing with determination of appeals in criminal cases, namely:-
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
I am prepared to hold that this misdirection on the part of the learned trial Judge wil not ipso facto lead to the appeals of the appellants having to be allowed, if in actual fact no substantial miscarriage of justice has been occasioned by it. In other words, I will dismiss their appeals if on the totality of the evidence upon which the learned trial Judge based on the convictions of the appellants, it is clear that any reasonable tribunal properly directed would have ben satisfied beyond reasonable doubt about the guilt of the appellants of the offence charged.
First “Quite apart from the eye-witness accounts of the circumstances or event immediately leading to or preceding the death of Mohammed Dan Mauta on the fateful day, one of the main pillars of the case for the prosecution is Exh. 2, the confessional statement of accused I and its English translation or equivalent.
……… the endorsement of Exh. 2 by Rev. Asaju is in direct contradiction of his evidence and of that of P.W. 4 regarding the actual time the confessional statement of accused I was taken down. That endorsement reads:
I certify that the above congested (sic) statement was made and recorded before me. Danladi made the statement voluntarily and that he spoke in Yoruba. It was recorded by Corporal Usman Ejiko of State C.I.D. Ilorin,
Signed U.A.C. Judge
Rev. I.A.K. Asaju’
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This has undermined or weakened their evidence, thereby creating some doubt in respect of the voluntariness of Exh. 2 as to the material time it was made. Thus, helpful as its content would have been to the case for the prosecution, Exh. 2 cannot be relied upon in convicting accused 1.
Second “As it ‘Exh. 2’ is now discarded for reasons earlier on given, the court has to rely only on the oral evidence of the prosecution witness together with the remaining uncontroverted statements of the other five accused persons to the police and the oral evidence and the denials of each of the accused persons.” (words in brackets mine).
Third “Above all, the statement of accused 2, (Exh. 3) Tukura Zali, neatly links accused 1 with the commission of the offence or the killing of the deceased.” (word in brackets mine).
& Fourth “Even shorn of that evidence (Exh. 3) the remaining testimony is sufficient to convict not only accused 1 but also each of the other accused persons.
It is clear misdirection in law on the part of the learned trial Judge to use the statement of a co-accused person as he did when he relied on the statement of the 2nd accused to the police, Exh. 3, as evidence against the 1st accused. See Atanda ‘. A.G. (1965) N.M.L.R. 225. But then later on in his judgment he said that even without that evidence the remaining evidence was sufficient to convict the appellant. The implication of this is that, if the learned trial Judge was right in this regard, this misdirection could not have occasioned a miscarriage of justice.
The evidence implicating the appellants besides Exh. 3 is the evidence of P.W. 2 and P.W. 3, Police Officers, who gave eye witness accounts of what, according to them, happened on the fateful day. Their evidence was very damning against the appellants. If the evidence is credible and reliable and seeing that the evidence is an eye witness account of what took place it could constitute stronger evidence against the evidence on which the appellants relied for their defence of alibi. In that event one might say that the misdirection of the learned trial Judge on the standard of proof when the prosecution is negativing a defence of alibi has not occasioned a miscarriage of justice.
This takes me to one aspect of this case which, if it had been brought to the notice of the learned trial Judge, as it ought to have been the case by the defence counsel at the trial, would have cast very serious doubts on the credibility of the evidence P.W. 2 and P.W. 3 gave in witness box to the effect that they were both present together at the scene of the crime and witnessed the events culminating in the death of the deceased Mohammed Dan Mauta.
In the application by J.T. Adeyemi Esqr. State Counsel II for leave of the High Court to prefer a charge against the accused persons without first holding a preliminary inquiry, there was included proof of evidence of witnesses to be called at the trial. The proof of evidence of P.W. 2 Abayo Abimuku was given. The relevant portions of that evidence for the purposes of the aspect of this case I am now talking about are as follows:
I am a police man serving in Aseni Police Post under Kogi L.G.A. I could remember 25/12/81 at about 1200 hrs. I was on duty at Aseni Police Post as the only person in afternoon duty. After staying at police station for some times I decided to go to Ahoko village under our jurisdiction for patrol or observation with one CPL Augustine Garba. So both of us left for Ahoko village on enquiry. On reaching the village we met some member of Gwaris unknown to me crying bitterly. When I enquired from the Gwaris to know why they were crying. One of them named not known then (now one of the accused) told me that I should assist them, because one fulani man killed their brother by name Phillips Zaki. On hearing the story I and CPL Garba Augustine went straight to the scene of Crime.
On reaching the scene in a certain farm, I met the deceased lying with his face downward. Two of us I and CPL Augustine Garba observed the corpse and we saw where he sustained injury on his head, although we did not touch his body. The injury looked exactly as a gunshot. On seeing this, I decided to look for a transport to come and report the incident at Lokoja Police Station. As I ~’as negotialing ft)~ a tiansport to Lakoja he CPL Augustine Garba left to inform the N.C.O. in (harge Aseni PO/i(‘e Post in person of Ihrahim Mohammed. I did not get the t’.anspo,~t in time to Lokoja. So while I was standing by the main road looking for vehicle, one man (now deceased) name not known to me but latter. As I had earlier stated I was actually present at the scene or spot where the Deceased Mohammed and Dan Mauta was killed. I could remember it was one Gwari man by name Danlam who first of all marcheted the Deceased with a cutlas on the head . .
I could also remember on that 25/12/81 at about 1400 hrs. the Deceased Mohammed Mauta arrived Ahoko village, in a certain mini Bus Taxi with about other five men, but I can’t identify the rest men. Even it was due to my efforts that other five men escaped from Ahoko village to their destination not known to me, otherwise the angry Gwari men would have killed them . . . He Mohamed Mauta then started asking me what happened to the villager as they were still crying by then. As I was trying to explain to him Mohammed Mauta about what happened, the villagers (now Accused persons in the case) but names not known came in group, and one of them attacked Mohammed Mauta with a cutlass. The others now accused persons came and they all started attacking the Deceased with their cutlases, they cut his head and his two legs were also cut off. All efforts made by me to prevent the villagers from killing Mohammed Mauta proved abortive as I was the only Police man present at the scene. The villagers over powered me completely with annoyance due to the brothers killed by the Fulanis. (italics mine).
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This evidence is clearly contrary to the evidence he, P.W. 2, gave in the witness box to the effect that he and P.W. 3, Augustine Garuba were present at the scene of the crime and saw all that happened there. Unfortunately learned Counsel for the accused persons did not at the trial court cross-examine the witness on his statement, which must have been made available to counsel for the defence and which in fact is part of the record of the proceedings in this appeal. I do not think that this lapse on the part of the defence counsel can prevent this court from doing justice in this case in a serious case of this nature-a capital offence-by paying due regard to all the available material in the appeal record.
The case of R. v. Johathan Adebanjo & JO Others 2 W.A.C.A. 315 is an authority for what I am about to do now. For that decision recognises it that an appellate court can give effect to knowledge of additional evidence during the course of hearing a criminal appeal. In this regard I refer to the following passage in the judgment of that court by Aitken, J., at pages 326-7 of the report:-
On the evidence before the learned Judge we certainly could not have arrived at the conclusion that his verdict against the 1st, 2nd, 4th, 5th, 6th, 7th, 8th and 9th accused on the charge of conspiracy were wrong in fact, though we do feel varying degrees of doubt as to whether certain parts of the evidence on which they were founded are not either fabricated or exaggerated. Examples could easily be given in each of these categories, but they would probably serve no very useful purpose and this judgment is already of almost excessive length. On the other hand circumstances have arisen during the hearing of the appeal which compel us to ask ourselves very seriously the question, whether a miscarriage of justice may not have occurred; and those circumstances are the discovery that Ajatu, the principal witness for the Crown, gave three previous statements to the political and police officers at Ijebu Ode, the first two of which are utterly at variance with her evidence before the learned trial Judge and the last of which is materially different therefrom. In point of fact the appeal record only disclosed one such statement, and it is entirely due to the conspicuous fairness of Mr. Sayle, Acting Solicitor-General, that all three statements were produced before us.
That court then went on to give effect to the knowledge of the additional evidence in the course of the appeal which turned out to result in the appeals of some of the apellants being upheld and their convictions for conspiracy to kill quashed.
It appears to me clear that had learned counsel for the defence cross-examined P.W. 2 on his statement to the police that would have brought it to the notice of the learned trial Judge that the evidence of P.W. 2 in the witness box was at variance with his statement to the police in a very material particularity. In that event it is at least certain that P.W.2’s credibility as a witness would have been depreciated if not entirely destroyed. See O’iubogu v. The State (1974) 9 S.C. I and Queen v. Ukpong (1961)1 All N.L.R. 25; [1961] 1 S.C.N.L.R. 53. It is also probable that the attitude of the learned trial Judge towards the evidence of P.W. 3, Augustine Garba, another police officer, that he was present at the scene of the crime with P.W. 2 when everything happened and saw it all would have undergone a decided change.
In the light of what I have just been saying above it appears to me that no reasonable tribunal would convict the appellants on the evidence of P.W. 2 and P.W. 3 alone of the offence charged. In the circumstances it cannot even be said that the evidence of P.W. 2 and P.W. 3 constituted stronger evidence against the evidence relied upon by the appellants for their defence of alibi. Accordingly I am in no doubt that the misdirection of the learned trial Judge on the standard of proof required when prosecution is disproving an alibi has occasioned a miscarriage of justice.
In the result for the above reasons and the fuller reasons given in the lead judgment of my learned brother Obaseki, J.S.C. I too allow the appeals of both appellants. I hereby set aside their convictions and sentences and in their places I enter a verdict of discharge and acquittal.
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Judgement Delivered by
Nnaemeka-Agu. J.S.C
This appeal highlights in bold relief, one important feature of criminal justice in our courts. It shows that though our judges play the dual role of Judge and jury, yet they still have to direct themselves correctly on the law as well as the material facts of a case.
My learned brother, Obaseki, J.5.C., has fully set out the facts that led to the trial, before Adeniyi, J., sitting in a Lokoja High Court, of the two appellants, along with five others with culpable homicide punishable with death under section 221(A) read together with section 7 of the Penal Code; how the two appellants (who were 1st and 2nd accused persons at the trial), were convicted along with accused Numbers 5 and 6; how accused Numbers 5 and 6 were discharged, on appeal, by the Court of Appeal coram; Wali, Akpata and Ogundere, JJ.C.A. I do not intend to repeat those facts in this further appeal to this court by the two appellants. He has also set out the issues for determination so admirably formulated by the learned Senior Advocate for the appellants from the grounds of appeal filed. I shall be content to make some brief comments on those issues.
I agree that the courts below were in error to have held that on the appellants’ defence of alibi they had a burden to prove it on a balance of probabilities. This court has said it so many times that an accused person who raises a defence of alibi does not assume the burden to prove the alibi. See: Adedeji v. The State (1971)1 All N.L.R. 75; Ozulonye v. The State (1981)1 N.L.R. 38. All that the law imposes on him is an evidential burden to raise the defence of alibi at the earliest possible opportunity and give particulars of that other place where he was at the time of the crime-such particulars that the police can investigate. An evidential burden is generally the burden of introducing, adducing or producing evidence on any particular issue: Esangbedo v. The State (1989)4 N.W.L.R. (Pt. 113) 57 at p.70. As, in criminal cases, the burden is always on the prosecution to prove the case against an accused person beyond reasonable doubt, a burden that never shifts, it is the duty of the prosecution to investigate the alibi and call all necessary evidence in rebuttal thereof. The burden on the prosecution is to negative the defence beyond reasonable doubt: Mancini y’. D.P.P. (1942) A.C. 1. That onus can only be discharged if the prosecution calls evidence of such a quantity and quality as to negative the defence of alibi-beyond reasonable doubt: see Arebamen v. The State (1972) 4 S.C. 35 p. 4(~1; ikono v. The State (1973) 5 S.C. 231; and Yanor v. The State (1965) N.M.L.R. 337. Where they all fail to investigate the alibi once the accused person has discharged his evidential burden, then they have left a room for doubt, the benefit of which ought to be given to the accused: Ukwunnenyi V. The State (1989)4 N.W.L.R. (Pt. 114)131 at p.149. In the instant case, a proper direction should have been that the 2nd appellant who duly raised his defence of alibi as soon as possible in his statement to the police had no duty to prove anything, having discharged his evidential burden; but that the 1st appellant who only raised his alibi in the witness box did not discharge the evidential burden on him and so had to prove it by evidence.
Having satisfied myself that there is a misdirection on the issue of onus of proof on the appellant’s defences of alibi, I do not think I can rely on the case of Rex V. Jonathan Adebanjo & Ors. (1935) 2 W.A.C.A. 315 at pp. 32~7, to find that the misdirection is substantial. This is because although the previous statement of P.W. 2 is contained in the proof of evidence exhibited by the prosecution while seeking the consent of the learned trial Judge to file an information, it is no legal evidence before us. It was neither tendered in the courts below nor even in this court. For one thing, the statements relied upon by the appellate court in Adebanjo’s case were produced in the court of appeal. In the instant case, it is not. We were never addressed on that. A statemet of an accused person which forms part of the documents for seeking the consent of the trial Judge is no legal evidence before this court or the courts below. I am therefore of the view that before we can use the statement it ought first to be made evidence before this court. I shall therefore be content to hold unto the traditional view that any misdirection as to onus of proof is fatal to a conviction unless it can be shown that on a proper direction, the result would have been the same. In Rex v. Basil Ranger Lawrence 11 N.L.R. 6, Lord Atkin delivering the judgment of the Privy Council stated at page 7:
……………………..O…………………….
But, speaking generally, it has to be remembered that it is an essential principle of our criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt: and it is essential that the tribunal of fact should understand this. Unless the Judge makes sure that the Jury appreciates their duty in this respect his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty by a jury who have not taken this fundamental principle into account is given in a case where the essential forms of justice have been disregarded. In such a case, unless it can be predicated that properly directed the jury must have returned the same verdict a substantial mis-carriage of justice appears to be established.
I believe that this encapsulates the law. The position is the same in this country in which the Judge is Judge and jury. In this case, there can be no doubt that the courts below failed in their important duty of making a proper authoritative statement as to ~e onus and standard of proof in such cases, such as could have guided them to approach the facts correctly. Yet, it has not been suggested to us tha~in spite of the clear misdirection on the onus and standard of proof in defence of alibi put forward by the appellants, the result would have been the same upon a proper direction. Besides, the learned trial Judge, having disregarded the other statements Exhs. 2 and 3 of the appellants which appeared confessional, I wonder whether there are other pieces of evidence from which I can affirmatively hold that the apellants would have been properly convicted, in any event. For one thing, the use he made of Exh. 3A, the unsworn and unadopted statement of the 2nd appellant to connect and convict the 1St appellant is wrong for the reason I shall give below.
In the above state of the law it appears clear to me that the failure of the learned trial Judge and the Court of Appeal to appreciate that the failure of the prosecution to investigate the defence of alibi raised by the 2nd appellant deprived him of the benefit of doubt to which he was entitled. Their wrong approach to the whole issue of the defence of alibi as one on which the appellant must call evidence and prove beyond a balance of probabilities drastically affected the vital issue of onus of proof. For the reasons I have given, it occasioned a miscarriage of justice.
It is also true that the learned trial Judge convicted the 1st appellant substantially on the statements, Exhs. 3 & 3A, of the 2nd appellant, a coaccused, which neither appellant adopted or reaffirmed on oath at the trial. The learned trial Judge’s reliance on it is against the letter and spirit of section 27(3) of the Evidence Act. A confessional statement of a co-accused is no evidence against the other accused person, unless he adopted the confession by word or conduct: See Evbuomwan v. Commissioner of Police (1961) W.N.L.R. 257. It follows therefore that, quite apart from what I have said about the defences of alibi by the appellants and their effect on the onus and standard of proof, the 1st appellant was convicted on illegal evidence.
For these reasons and the fuller reasons containd in the judgment of my learned brother, Obaseki, J.S.C., which I adopt as my own, I allow the appeal and set aside the judgments of the Court of Appeal and the High Court and make the same orders as have been made in the lead judgment.
Counsel
Chief F.O. Akinrele. S.A.N For the Appellant
With Adams Usman
Idowu adewunmi Esq For the Respondent
D.P.P. Kwara State Ministry of Justice
UKWUNNENYI V. STATE
On Friday , 7th day of July 1989
Before Their Lordships
Between
Before Their Lordships
ANDREWS OTUTU OBASEKIJustice of the Supreme Court
AUGUSTINE NNAMANI Justice of the Supreme Court
ADOLPHUS GODWIN KARIBI-WHYTEJustice of the Supreme Court
CHUKWUDIFU AKUNNE OPUTA Justice of the Supreme Court
PHILLIP NNAEMEKA-AGU Justice of the Supreme Court
Between
Benson Ukwunnenyi
Echena Chito ……. Appellants
And
The State ……. Respondent
…………………….A…………………….
Judgment of the Court
Delivered by
Karibi-Whyte. J.S.C.
Appellants at the Anambra State High Court, sitting at Nsukka, were charged with two others for the murder of one Chukwuma Okoro. Appellants alone, were on the 23rd September. 1985 convicted and sentenced to death. The other two were discharged and acquitted. Appellants’ appeal to the Court of Appeal was heard in the Court of Appeal Division sitting at Enugu; and dismissed on the 16th June, 1988. This is a further appeal from the judgment of the Court of Appeal by the appellants.
The facts of this case may be stated shortly as follows – Benson Ukwunnenyi, Echena Chito, 1st and 2nd appellants, respectively, Sampson Echa and Ozoemena Chukwuemeka, 3rd and 4th accused persons at the court of trial are all members of the same family and related to one another by blood. One Paul Onwubiko, a relation of the ‘deceased Chukwuma Okoro who appellants are alleged to have murdered, had in 1982 stabbed the 4th accused, also a relation of the ist appellant, on the head. Early in the morning of 26th December, 1983, the same Paul Onwubiko had murdered Onuora Chizor, the elder brother of 1st appellant, who was responsible for his education at Idah Polytechnic, Benue State.
In his statement to the Police and evidence in court, 1st appellant stated that he decided to look for Paul Onwubiko and to know why he had chosen to maim or kill members of his (1st appellant’s) family. It was during this search that he encountered the deceased, a relation of Paul Onwubiko. The deceased engaged him in a fistfight without offensive weapons. In the ensuing exchanges, he applied his knowledge of Karate, kicked the deceased with his leg and knocked him down resulting in the death of deceased. 1st appellant claimed to have fought and killed the deceased alone, and that he did not employ any matchet or sharp instruments. 1st appellant admitted seeing P.W.6 at the scene of the encounter, but denied seeing P.W.4.
The case of the prosecution founded on the evidence P.W .4 and P.W.6 was quite different. It was that a number of persons comprising the appellants, the 3rd and 4th accused persons and about four or five others at Ogurugu village, murdered the deceased Chukwuma Okoro at about 5p.m. on the 26th December, 1983. The two eye witnesses called by the prosecution were P.W.4 David Okoro, the 14 year old son of the deceased, and P.W.6 Ukwuta Chekwu, the brother of the deceased who were with him when he was attacked. The hostile group was armed with matchets, axes, clubs. The evidence implicated the first appellant as having stabbed the deceased with a dagger, and the 2nd appellant for inflicting matchet cuts on him. This evidence was corroborated by the Medical evidence of the nature of the injuries resulting in the death of the deceased.
The evidence of the 2nd appellant in his statement to the Police and testimony in court was a complete denial. He said that on hearing that someone had been murdered he ran to the house of their Chief; Chief Tagbo Kpela Ojoma. He was sent by the Chief with others to convey the corpse of Onuora Chizor, to the hospital at Enugu-Ezike. He therefore accompanied the party to the hospital. It was on his return from the hospital after the autopsy on the corpse that he learnt at the Police station about the death of the deceased.
At the end of the trial, the learned trial Judge acquitted and discharged H the 3rd and 4th accused persons, on the ground that neither P.W.4 nor P.W.6, who were the only eye witnesses to the crime mentioned in their statement to the Police the 3rd and 4th accused persons who they knew very well when the event was fresh in their minds. He rejected the evidence of the 1st accused, now 1st appellant and the alibi of the 2nd accused, now 2nd appellant. He rejected the alibi because as he said, at p.63 lines 15-18,
…………………….B…………………….
It is inconceivable that on hearing this (i.e. the Paul Onwubiko has killed Onuorah Chizor, his relation) he merely ran to the house of the Chief and from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation.
The learned trial Judge sought for and found corroboration of the evidence of P.W.4 in the evidence of P.W.6 that 2nd appellant was a party to the murder of Chukwuma Okoro, the deceased.
The learned trial Judge considered and rejected the defence of self-defence and provocation raised on behalf of the 1st appellant. He rejected the suggestion that there was any form of fighting between the deceased and any of the accused persons. He also held that none of the provocative acts relied upon by the 1st appellant was offered by the deceased. The trial Judge relied also on the confession of the 1st appellant, but rejected the claim in the confession that he committed the offence alone.
In the Court of Appeal, appellants contended that the evidence of P.W.4,David Okoro, at the age of 16 required corroboration, and that the evidence of P.W.6 Okwuta Chekwu cannot constitute such corroboration. It was also contended that the 1st appellant was provoked. Finally, it was argued that the confession of the 1st appellant that he committed the offence alone ought to have been accepted. The defence of alibi of the 2nd appellant was raised, although considered in the court below was rejected by implication.
All the contentions were dismissed.
It was held that corroboration of the evidence of P.W.4 was not necessary, and that even if it was, it need not be sought in the evidence of P.W.6. The medical evidence was accepted as constituting sufficient corroboration. In respect of the appellants, the finding of the trial Judge that there was no bias in the evidence of P.W.4 and P.W.6, was accepted. Also accepted was the finding in respect of 1st appellant, that provocation in law has not been established. This was because the deceased had offered no provocation to the 1st appellant. Agreeing with the learned trial Judge the Court of Appeal held that the 1st appellant’s confession confirmed the allegation that he took part in killing the deceased. It neither implicated nor exculpated the others who acted in concert with him. Tested with other evidence outside the confession it was possible to determine the extent to which the claims in the confession are true.
The Court of Appeal dismissed the appeal of the appellants, and affirmed the conviction and sentence of death imposed by the trial Judge. Appellants further appealed to this court. The grounds of appeal of the appellants before us raised issues of
(a) provocation on the part of the 1st appellant.
(b) effect and consideration of the confession of the 1st appellant.
(c) the reliance on the evidence of the P.W.4 as regards the part played by both appellants in the commission of the offence, and
(d) the consideration of the defence of alibi raised by the 2nd appellant.
…………………….C…………………….
In the brief of argument filed by counsel on which they relied in argument before us, appellants raised the following issues for determination
In respect of the 1st appellant the issues raised are as follows –
(i) Against the Background and circumstances of this case, does a defence of provocation avail the 1st appellant?
(ii) Although in law a trial Judge can reject a part and accept the other part of a witness’ evidence, can he do so in respect of a confessional statement of an accused person?
(iii) What is the effect of the failure of the learned trial Judge to warn himself on the evidence of P.W.4 and P.W.6 who are blood relations of the deceased?
In respect of the 2nd appellant, they are as follows –
(i) Has an accused person who sets up a defence of alibi both in his statement to the Police and evidence in court and supplied enough particulars through which his movements can be investigated, if required, but calls no further evidence at the hearing, discharged the evidential onus placed on him?
(ii) Is the trial Judge entitled to make a finding one way or the other on a defence of alibi which was not previously investigated by the Police or the result of such investigation, if, made, tendered in court?
(iii) Did the Court of Appeal give sufficient consideration to the issues raised before it in the appeal?
The issues raised in respect of the 2nd appellant which relate to the failure of the prosecution to investigate the defence of alibi, can be more tersely framed as follows –
Whether the trial Judge was right to dismiss the defence of alibi raised by the 2nd appellant when there was no evidence to the contrary.
The issue (iii) is of such a general nature as not to require any specific consideration.
The formulation of issues by Counsel to the respondent in respect of the 1st appellant is different but cover the same grounds. The issues in respect of 2nd appellant concern the issue of alibi raised, but merely questions what the 2nd appellant ought to have done. I think the issues formulated by counsel to the respondent on behalf of the 1st appellant more adequately cover the grounds of appeal relied upon. It is as follows
…………………….D…………………….
(i) Taking into consideration the facts of this case as established at the trial, does the defence of provocation avail the First appellant?
(ii) is a trial Judge not right in law to scrutinise the confessional statement of an accused person just like any other piece of evidence and, subject to his findings in respect thereof, to accept it in part or as a whole?
(iii) Having regard to the peculiar facts of this case and the find- of the learned trial Judge made at page 65 lines 2 to 13 of the record of proceedings was it necessary for the learned trial Judge to have warned himself about the reception of the evidence of P.W.4 and P W.6?
Mr. Okonkwo, counsel to the appellants first argued the case of the 2nd appellant. In his brief of argument which he amplified orally before us, he submitted that 2nd appellant had set up a defence of alibi both in his statement “Exhibit D-D1” and in his oral testimony in court. The alibi of the 2nd appellant consisted in the evidence that he was not a member of the group alleged to have murdered the deceased. He stated that on hearing that Paul Onwubiko had killed Onuora Chizor, he ran to his Chief’s place and from there on the order of the Chief accompanied the party who conveyed the corpse of Onuora Chizor to the Fnugu-Ezike General Hospital. He did not return to the village till after the doctor’s autopsy on the corpse. He said that he learnt of the murder of Chukwuma Okoro, at the Police Station when he returned from Enugu-Ezike. Concisely stated 2nd appellant was saying that he was at the General Hospital, Enugu-Ezike when the deceased was killed. In any event he was not at Ogurugu village.
Counsel submitted that the statement sufficiently satisfied the requirements of a defence of alibi. He submitted that 2nd appellant explained his movements on the 26th December, 1983, and that he was out of the village on the orders of Chief Tagbo Kpela Ojoma. He also stated that 2nd appellant gave particulars of where he was at the relevant time and the reasons for his being away from the village. It was submitted that since the Chief must be taken to be a well known person the onus was on the prosecution to verify the claim of the 2nd appellant by investigating his story. Counsel relied on several decided cases of this court to support his submission. Some of them are Abudu V. The State (4985)1 N.W.L.R. (Pt.1) 55; Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465; Urnani V. The State (1988) 1 N.W.L.R. (Pt.70) 274; Salami v. Tlie State (1988) 3 N.W.L.R. (Pt.85) 670; Nwabueze V. The State (1988) 4 N.W.L.R. (Pt.86) 16.
In his reply, Mr. Okolo for the respondents conceded that there was no onus on the 2nd appellant who sets up an alibi to prove, but submitted the duty on appellant to give particulars of the alibi was not discharged. He referred to the statement of 2nd appellant to the Police and also his testimony in court at his trial and submitted that the evidential burden imposed was not discharged. It was contended that
(a) 2nd appellant did not disclose where Chief Tagbo Kpela Ojoma could be found.
(b) the names of the people in whose company 2nd appellant took the corpse of Onuora Chizor to the Enugu-Ezike hospital.
It was submitted that in the absence of these facts the Police had no way of verifying the alibi.
…………………….E…………………….
The cases of Dikeocha & 3 Ors. V. The State (1966-67) 10 E.N.L.R. 155 at 158; Gachi & Ors. V. The State (1965) N.M.L.R. 333 at p.334; Eze V. The Slate (1976)1 S.C.125; Salami v. The State (1988)3N.W.L.R. (Pt.85)670; Nwabueze V. The State (1988)4 NW. L. R. (Pt. 86)16 were cited in support of the submissions.
It is pertinent to point out that the judgment of the Court of Appeal challenged on this ground only inferentially upheld the judgment of the trial Judge rejecting the defence of alibi raised by the 2nd appellant (2nd accused) at the trial. Although the 2nd ground of the grounds of appeal and particular (v) of the particulars to the ground of appeal of the 2nd appellant raised the issue, it seems to me that the question of alibi was not independently considered at all. It is well settled that where a defence has been put forward, it must be considered however improbable or regarded as stupid Opayemi V. State (1985) 2 N.W.L.R. (Pt.5) 101. There is no doubt that the Court of Appeal relied on the finding of the trial Judge that P.W.4 and P.W.6 were eye witnesses to the incident that 2nd appellant was among those who murdered the deceased. In fact it was 2nd appellant who inflicted matchet cut on the head of the deceased. He also found that they were not biased even though P.W.4 was the son and P.W.6 the brother of the deceased. Thus before the learned trial Judge there was the claim by the 2nd appellant that he was invited by Chief Tagbo Kpela Ojoma to accompany other members of the village to convey the body of Onuora Chizor, who had been murdered that morning to Enugu-Ezike General Hospital, and that he only heard of the death of the deceased at the Police Station when he and the others returned from Enugu-Ezike. The other evidence was the positive identification by P.W.4 and P.W.6, who knew 2nd appellant well to be a [) member of the family of the 1st appellant, and of Onuora Chizor alleged to have been murdered by Paul Onwubiko.
It is the duty of the Court of Appeal to consider issues properly raised in the grounds of appeal before it. Where this has not been done this court can notwithstanding the fact that the court below has not made any pronouncement consider the ground of law or facts so raised.
It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed F the offence nor participated in its commission.
There is no doubt that such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused- See Gachi V. The State (1965) N.M.L.R. 333. Odidika v. The State (1977) 2 S.C. 21. Hence evidence tending to establish the defence should not be disregarded unless there is a stronger and more positive evidence of the participation of the accused. – See Odidika V. State (1977) 2 S.C. 21.
…………………….F…………………….
The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. In this case the 2nd appellant’s defence of an alibi was made at the earliest opportunity and before he was charged with the offence. There was therefore a duty on the prosecution to verify from Chief Tagbo Kpela Ojoma, whether 2nd appellant was in the party he sent to convey the body of Onuora Chizor to Enugu-Ezike General Hospital. It was also possible for the prosecution to verify when the party returned to Ogurugu, and whether the 2nd appellant had the opportunity and could have committed the offence despite the fact that he was a member of the team. There was nothing on the record to show that the claim of 2nd appellant was investigated by the prosecution. In fact, the findings of the learned trial Judge did not establish that there was any investigation. It was therefore in the situation not possible to conclude that the case of the accused if investigated would not have cast doubt on the reliability of the case of the prosecution.
The onus on the appellant was to adduce evidence which sufficiently contains the particulars of the alibi – See Nwosisi v. The State (1976) 6 S.C. 109. The onus to establish the guilt of the appellant remains on the prosecution throughout the case. The 2nd appellant having discharged the onus on him of adducing evidence of alibi, it could not be said in the absence of any verification of the claims made that the failure to investigate the alibi would not be fatal to the conviction – See Ntam v. The State (1968) N.M.L.R. 86.
In the circumstances where the relationship of P.W.4 and P.W.6 to the deceased was one of son and brother respectively, and where the crime was committed in retaliation to that alleged committed by the brother of the deceased on the relation of the appellants, and where the appellants were well known to the P.W.4 and P.W.6, the trial Judge ought to have been extremely wary in accepting the eye witness testimony of the P.W.4 and P.W.6, in the face of an uninvestigated defence of alibi See Opayemi v. State (supra).
Counsel to the respondent has argued before us that the particulars of the alibi were not sufficient to enable a verification of the defence. That is not in my respectful view the issue. It is admitted that where the alibi pleaded is by its nature incapable of being verified because of the improbability of the facts, It will be unnecessary to investigate. The instant case is clearly not such a case. The question is whether the trial Judge considered the defence at all. The defence of the 2nd appellant ought to have been investigated and considered. – See Yanor & Anor. V. The State (1965) N.M.L.R. 337 It cannot therefore be said that the evidence in the case was sufficient to fix the appellant at the scene of crime at the material time – See Njovensv. The State (1973)5 S.C. 17
In Yanor & Anor. V. The State (1965) N.M.L.R. 337 at p.341-342, the F court stated the approach to the consideration of alibi as follows
On the defence of alibi, the law is that the jury should be directed that they should not disregard evidence of alibi unless there is stronger evidence against it. – See Chadwick (1917)12 Cr. App. R. 247. Therefore while the onus is on the prosecution to prove the charge against an accused person the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi; when such evidence has been adduced the court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the court is unable to reach a decision on the question whether evidence in support of the case for the prosecution is stronger than that produced in support of the alibi, the accused must be acquitted.
…………………….G…………………….
The learned trial Judge without any evidence of the investigation of the alibi of 2’1d appellant doubted the credibility of the evidence when be said:
I see no reason why P.W.4 and P.W.6 should implicate accused No.2 if he was not at the scene. I reject the defence of accused No.2 that he was not at the scene. He admitted in his statement to the Police Exh. D, Dl, that he heard that it was Paul Onwubiko that killed Onuora Chizor who was his relation. It is inconceivable that on hearing this he merely ran to the house of the Chief and from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation. I have already held that P.W.4 was a grownup person and B that his evidence did not require corroboration, in case I am wrong in this view and this is unlikely, I would that there was ample corroboration in the evidence of P.W.6. In my view the prosecution has established beyond reasonable doubt that accused No.2 was a party in the murder of Chukwuma Okoro.
In accepting this view of the learned trial Judge the Court of Appeal stated that “The Judge, without doubt, attended to the issues raised by the defence counsel and all other issues in the case with scrupulous care.”
In what could be regarded as reference to the acceptance of the rejection by the learned trial Judge of the defence of alibi raised by the 2nd appellant, the Court of Appeal held,
As to the second issue of bias or likelihood of bias in the evidence of P.W.4 and P.W.6 because of their relationship with the deceased, the Judge made a finding of fact believing the two witnesses. His premise for his belief which, in my opinion, is quite reasonable is stated in this form; “I do not think that the facts disclosed at the trial were such as to give rise to the inference that P.W.4 and P.W.6 had malice against any of the accused persons. It was indeed the accused persons who had a cause to bear grudge against P.W.4 and P.W.6 who are the relations of Paul Onwubiko for the latter’s alleged assaults on the relations of the accused persons and the final killing of Onuora Chizor the accused’s relation. I cannot discredit the evidence of P.W.4 and P.W.6 merely on the ground of their relationship with the deceased. The Judge has shown why the evidence in question need not be entertained with fear. It is not tainted by reason of relationship with the deceased. The cases of Opayemi v. The State (1985) 2 N.W.L.R. (Pt.5) 101 at 113; and Onafowokan v. The State (1986) 2 N.W.L.R. (Pt.23) 496 at 503 relied on by counsel for the appellants are not helpful to them.
The above is an endorsement of the approach by the learned Judge to the consideration of the defence of alibi of the 2nd appellant, which in my respectful opinion is wrong. The particulars of alibi in the circumstances. having not been verified and proved to be false, the learned trial Judge was not in a position to reject the defence as he did. What he should have placed alongside the evidence of P.W.4 and P.W.6 is the investigated and verified particulars constituting the alibi of the 2nd appellant. It is only when the evidence of the prosecution in such a circumstance is shown to be stronger than the alibi and still fix the appellant with the commission of the offence can the alibi be rightly rejected. The Court of Appeal was therefore wrong to hold that the learned Judge was right to reject the alibi without being satisfied of its falsity or weakness in the face of the evidence of P.W.4 and P.W.6.
In the circumstances the case of the 2nd appellant has not been fully considered. Since the alibi raised was not properly considered, the 2nd appellant is entitled to the benefit of doubt resulting from such error. The appeal is therefore allowed.
The appeal of the 1st appellant is in a different category. Counsel is not contending seriously that 1st appellant did not commit the offence. He is however relying primarily on the defence of provocation to reduce the conviction from murder to manslaughter.
I have ignored the argument relating to the acceptance of the confession of the 1st appellant in my consideration of the appeal. This is because having allowed the appeal of the 2nd appellant, the only surviving accused in this appeal, the question whether 1st appellant confessed to committing the offence alone or with another is no longer relevant.
There was no evidence before the trial Judge suggesting the defence of self-defence on the part of the 1st appellant. Rather the evidence from Exhibit A, his confession, was that 1st appellant smarting under the provocattion of the most recent of the assaults by Paul Onwubiko on members of his (1st appellant’s) family, was looking for Paul Onwubiko. He did not see him but ‘net the deceased a brother of Paul Onwubiko. There was no evidence that the deceased attacked 1st appellant with dangerous weapons or indeed fists. It is more probable as suggested by the trial Judge that 1st appellant challenged the deceased to a fight. 1st appellant did not deny that the deceased died in the encounter. This was corroborated by the evidence of the P.W.4 and P.W.6 who were eye witnesses to the incident.
…………………….H…………………….
The defence of provocation relied upon by the 1st appellant is a little intriguing. The uncontradicted evidence of the 1st appellant about the savage and criminal assaults of Paul Onwubiko on blood relations of the 1st appellant, culminating in the killing of Onuora Chizor, the 1st appellant’s elder brother who was responsible for his education, at Idah Polytechnic, the apparent blind eye turned by the Police to reports of these incidents; All these ordinarily will provoke the ordinary person to action. It is the nature of the action that is governed by our law.
There is no doubt that the law is that the trial court has a duty to consider the defence of provocation disclosed by the evidence of the accused. -See Queen v. Itule (1961)1 All N.L.R. 462. Provocation consists of an act or acts which causes or may cause a sudden and temporary loss of self-control resulting in the commission of the offence charged. Where provocation is established it negatives the intention to kill or cause grievous bodily harm which are essential ingredients for a conviction for murder – See R. v. Akpakpan (1956) 1 F.S.C. 1; [1956j SCNLR 3. Although there is no hard and fast rule for determining acts to constitute sufficient provocation, each case depending upon its peculiar facts, the court may consider the relationship of the parties – See Queen v. Jinoba (1961) All N.L.R. 627. This court has held that it is possible to cause provocation to a class of people such as a community. Where the facts are appropriate the court may draw the inference – See Apishe v. The State (1971)1 All N.L.R. 50; Shehu Dumeni v. Queen (1955)15 W.A.C.A. 75. This is not a provocation of a member of a crowd in respect of which any other member of the crowd is a lawful target, the provocation may having emanated from the crowd.
This court has held that provocation offered by one person cannot be a ground for killing another who did not offer such provocation See Omerninu v. State (1966) N.M.L.R. 356 where a husband killed his child on account of provocation by his wife. In the instant appeal the trial Judge rejected the defence of provocation on the ground that the provocation pleaded did not flow from the deceased, but from the alleged conduct of Paul Onwubiko. The Court of Appeal agreed with this view relying on R. v. Ebok (I 950) 19 8 N.L.R. 84 at p.86; R. v. Nwanjoku (1937)3 W.A.C.A. 208 and Omeninu v. The State (supra). I agree entirely with this view as accurately representing the law.
The evidence before the learned Judge and the confession of the 1st appellant clearly show that the culmination of the provocating events which occurred in the morning of the 26th December, 1983 inspired in the 1st appellant an actual intention to kill in retaliation for what Paul Onwubiko has been doing to members of the 1st appellant’s family. The incident. i.e. the murder of Chukwuma Okoro, in respect of which 1st appellant was charged occurring at about 5p.m. the same day, he could not be said to have acted in the heat of passion, caused by sudden provocation, before there was time for his passion to cool – See Oladiran v. State (1986)1 N.W.L.R. (Pt.14) 75. Counsel to the appellants has submitted to us that the defence of provocation was available to the 1st appellant on the evidence before the trial Judge in addition to the collusion or connivance with the Police in the area. There is no doubt that the inexplicable inertia of the Police in investigating and prosecuting Paul Onwubiko for the complaints against him is sufficiently annoying to members of the family of the victims. I however do not think such annoyance can sustain a defence of provocation for murder committed because of such dereliction of duty. In any event such provocative acts flow from members of the Police Force, and not from those whose criminal acts have been condoned by the dereliction of duty.
I am satisfied that the trial Judge was right in rejecting the defence of provocation relied upon by the appellant and the Court of Appeal rightly in my view upheld that finding. I therefore reject the submission of counsel for appellants in respect of the 1st appellant whose appeal is hereby accordingly, dismissed.
The appeal of the 1st appellant against the judgment of the Court of Appeal is dismissed. His conviction and sentence by the learned trial Judge affirmed by the Court of Appeal is hereby further affirmed.
The appeal of the 2nd appellant is allowed. He is hereby acquitted and discharged.
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Judgment delivered by
Obaseki J.S.C.,
I have had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi-whyte, J.S.C., and I agree with him that the appeal of the 1st appellant be dismissed and that of the 2nd appellant allowed. His opinions on all the issues for determination in this appeal accord with mine and I adopt them as my own.
Two points emerged in this appeal which seem to try our sense of justice. The first is the confession by the 1st appellant that he took the life of the deceased because a relation of the deceased took the life of his own relation.
Ours is a democracy notwithstanding that the military are temporarily in power, dedicated to the strict observance of the Rule of Law. Where the Rule of Law operates, the philosophy of self-help withdraws and law enforcement authorities of the state ensure that things are done according to law. Vengeance has no place in a society where the Rule of Law operates. The life of a person is more of an asset to the state and the state will not allow anyone to take the law into its own hands by avenging the death of a relation either on the culprit or on the innocent. The policy of avenging the death of a relation if allowed to take root will lead to a breakdown of law and order, to anarchy and eventually to the destruction of society itself.
Thus, under our law, the death of a relation at the hands of a felon does not constitute provocation to enable the relation of the deceased to take the’ life of either the felon or an innocent relation of the felon. The 1st appellant is therefore not protected by our law in his confessed act of taking the life of the deceased.
The 2nd point is the defence of alibi put forward by the 2nd appellant both to the police at the earliest possible moment soon after arrest and also in court. It is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the investigation stage, it is the bounden duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed) or its falsity (that the suspect was not where he said he was when the crime was committed). [See Gachi v. The State (1965) N.M.L.R. 333. Ntam v. The State (1968) N M.L.R. 86.; Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465; Nwabueze v. The State (1988) 4 N.W.L.R. (Pt.86) 16]. Failure to investigate deprives the prosecution of this vital piece of evidence and when the accused introduces evidence 6f his alibi, there will be nothing to counter the defence which a trial Judge can consider as a challenge to that defence. Thus, the failure of the police to investigate not only weakens the case for the prosecution but also gives force to the alibi to create doubt in the mind of the trial Judge the benefit of which must be given to the accused. It is therefore essential that the prosecution is fully aware of the importance of producing evidence of the investigation of the defence of alibi set up by the suspect before them. If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in court, he has an uphill task of convincing the trial Judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime.
In the instant appeal the 2nd appellant set up his defence of alibi to the police at the earliest opportunity but the investigating police officer failed to carry out any investigation into the defence. Since the 2nd appellant discharged the evidential burden in court, he is entitled to the benefit of doubt created in the case put forward by the prosecution against him.
Accordingly, I hereby dismiss the appeal lodged by the 1st appellant and affirm the conviction and sentence of death passed on him by the High Court and affirmed by the Court of Appeal.
With respect to the 2nd appellant. I hereby allow his appeal and set aside the decisions of the Court of Appeal and the High Court convicting him and sentencing him to death. The conviction and sentence are hereby A quashed. Instead, the 2nd appellant is hereby acquitted and discharged.
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Judgment delivered by
Nnamani, J.S.C.
I had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi-Whyte, J.5.C., and I agree with his reasoning and conclusions.
The appellants and 2 others were charged with the murder on 26th December, 1983 of one Chukwuma Okoro contrary to Section 319(1) of the Criminal Code, Cap. 30 Vol.11 Laws of Eastern Nigeria applicable in Anambra State. After hearing the evidence of the parties, Edozie, J., in a fairly well considered judgment, discharged the 3rd and 4th accused persons, convicted the appellants and sentenced them to death. An appeal to the Court of Appeal was unsuccessful hence the appeal to this Court.
In his brief of argument, learned counsel to the appellants, Mr. Okonkwo set down 3 issues for determination in respect of the 1st appellant, while 3 issues were also set down in relation to the 2nd appellant. As they affected 1st appellant, these were mainly in respect of possible defence of provocation and the question of the learned trial Judge not warning himself on the evidence of P.W.4 and P.W.6 – the son and close relation of the deceased. In relation to the 2nd appellant, the issues related to the alibi raised by this appellant and the failure of the police to investigate it. The issues for determination set down by learned Counsel for the respondent, Mr. Okolo were really the same except that as regards the 2nd appellant, he raised the question of the evidential burden on that appellant to introduce sufficient evidence on his plea of alibi.
I shall adopt the facts of this case as set down in the lead judgment. The background appears to be that one Paul Onwubiko had over a number of years harassed and assaulted members of the appellant’s family. This Paul is a relation of the deceased. Reports of these assaults to the Police appear to have been ignored. Indeed on the day of the murder, one Onuora Chizor, a brother of the 1st appellant was killed. This is the background to the murder of Chukwuma Okoro who was a relation of Paul Onwubiko. The harrassment and assaults by Paul Onwubiko on the appellants’ family were indeed stated in the 1st appellant’s statement for he claimed these to support his defence of provocation. They included
(i) Paul daggering his brother, Uchechukwu on the nose in 1982.
(ii) Paul in 1983 daggering his brother, Ozoemena (4th accused) on the head
(iii) On 26th December, 1983 Paul was suspected to have killed his brother, Onuora Chizor.
I do not think there is much that can be added to the case of the 1st appellant as considered in the lead judgment. His defence of provocation was fully considered by both lower courts and rightly rejected. The harrassment and assaults by Paul Onwubiko on members of the 1st appellant’s family cannot provide a basis for a defence of provocation to the murder of Chukwuma Okoro who offered no provocation to the 1st appellant. See R. v. Ebok (1950)19 N.L.R. 85; R. v. Nwamjoku (1937) 3 W.A.C.A. 208; Omeninu v. The State (1966) N.M.L.R. 356. The combined effect of Sections 283 and 318 of the Criminal Code puts the defence beyond the reach of A the 1st appellant. This is not also a case in which it can be said that the provocation was offered to the 1st appellant by persons acting in concert so that he could say he was provoked and killed one of those persons. This was rather a premeditated murder. The 1st appellant was out to revenge and took out his revenge on the deceased. a relation of Paul. Indeed, the 1st appellant in his statement which he later retracted but which the learned trial Judge accepted said,
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As I continued looking for Paul in the bush and did not find him, at about 12 noon, I saw Paul’s brother by name Chukwuma (deceased) and Okwuta Onwubiko (P.W.6) in the bush near Ogurugu. When they saw me Okwuta Onwubiko ran away so I killed Chukwuma as his brother Paul killed my Senior brother Onuorah.
There was no evidence of assault of 1st appellant b\ the deceased. Although 1st appellant talked about a tight and his use of Karate, the learned trial Judge rightly accepted the evidence of P.W.4 and P.W.6 on the injuries inflicted on the deceased by the 1st appellant, Which in ones agreed with the medical evidence.
As regards the question of P.W.4 and P.W. 6 being tainted witnesses. I think the learned trial Judge adverted his mind fully to this before accepting the testimony of these two witnesses. See Mbenu and 1 other v. state (1988) 3 N.W.L.R. (Pt. 84) 615 at 626-627.
It is in relation to the 2nd appellant that there was something that needed serious consideration. The defence of the 2nd appellant was alibi. He claimed at the earliest opportunity, i.e in his statement to the Police, that when he heard of the death of Onuora Chizor he ran to the house of their Chief, one Tagbo Kpela who told him to help in conveying the corpse of the deceased i.e. Onuora to Enugu – Ezike General Hospital. He claimed further that he returned with his people to the Police Station. It was there he heard of the death of Cliukwuma Okoro. The 2nd appellant repeated this in his evidence in court.
Learned Counsel, Mr. Okolo, has Contented before us that the 2nd appellant did not discharge the evidential burden on him to produce enough evidence on his alibi. I do not agree with this. What more did he need to give? The name of the Chief was given. What was the reaction of the prosecution to this alibi? Nothine. It w as not investigated. It is settled that because of the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt, once a defence of alibi is set up there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity. See Obinga and Ors v. Police ( l965 ) N .M..L. R. 172. It had to be so for an alibi is in effect an assertion of the accused person that he was somewhere else while the case of the prosecution is usually that he was at the scene of crime. Such an investigation becomes imperative for otherwise how can the truth or otherwise of these assertions be tested.
In the instant case, the learned trial Judge . without the benefit of this investigation proceeded to consider this evidence of alibi against the strong testimony of P.W.4 and P.W.6 that the 2nd appellant took part in the crime and was at the scene. At page 63 of the record he concluded as follows:
He said that on the fateful day when he heard an alarm about the death of Onuorah Chizor, he went to the house of Chief Tagbo Ekpela Ojomo and there at the instance of the Chief he took part in conveying the corpse of Onuorah Chizor to EnuguEzike General Hospital for autopsy. On the other hand P.W.4 and P.W.6 were emphatic that accused No.2 inflicted a matchet cut on the body of the deceased. I believe the evidence of P.W.4 and P.W.6 that accused No.2 was one of the murderers of the deceased.”
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With all respect, it was an unfair conclusion since the learned trial Judge had no information on the defence of the 2nd appellant. The evidence of the Chief was most necessary in resolving this issue and it was the prosecution who ought to have investigated the alibi. There was no burden on the 2nd ap- C pellant to lead evidence in proof of his alibi. Although the learned trial Judge did what he had to do i.e. consider the alibi against the evidence of the prosecution, the doubt created by the failure of the prosecution to investigate the 2nd appellant’s alibi ought to have enured to his benefit. See Yanor & Ors. v. The State (1965) N.M.L.R. 337 and Umani v. State (1988)1N.W.L.R. (Part 70)274,284.
In the circumstances, the benefit of doubt must be given to the 2nd appellant. For these reasons and the more detailed reasons in the lead judgment. I too would allow the appeal of the 2nd appellant and enter a verdict of discharge and acquittal. The appeal of the 1st appellant is dismissed and the conviction and sentence previously passed on him are further affirmed.
Judgment delivered by
Oputa, J.S.C.
I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Karibi-Whyte, J.S.C., and I am in total agreement with his reasoning and conclusion that the appeal of the 1st appellant should be dismissed and the appeal of the 2nd appellant allowed.
The facts of this case are not complicated at all, but the issues arising therefrom are both as intriguing, as they are challenging. They pose a challenge between our indigenous and erstwhile concept of the family and the village as a recognised “legal” group or entity, leading to our erstwhile group morality, group responsibility, group provocation and group retaliation etc. With the advance and our assimilation of European concepts (I will not say civilisation) and European individualism, our group consciousness and group responsibility slowly started to give way to personal responsibility for crimes like murder with which we are faced in this case. Can there be a marriage between the old and the new or shall we allow the cleavage to continue to its logical conclusion? That is the question posed by this case.
A relation of the deceased in this case named Paul Onwubiko was alleged to have persistently attacked members of the appellant’s family unit. In 1982 the said Paul Onwubiko was alleged to have stabbed one Udechukwu (the brother of the 1st appellant) on the nose. Udechukwu survived this attack. In 1983 the said Paul Onwubiko again stabbed Ozoemeka Chukwuemeka, another relation of the 1st appellant on the head. In December, 1983, Paul Onwubiko again was alleged to have murdered Onuorah Chizor, another member of the appellants’ family. Infuriated and incesed by these provocative attacks on member after member of his family ending up with the killing of one of them, the 1st appellant, Benson Ukwunnenyi went in search of Paul Onwubiko. I will reproduce the significant part of the Statement of the 1st appellant to the Police tendered as Ex.A..
When they saw me Ukwuta Onwubiko ran away, so I killed Chukwuma as his brother Paul killed my senior brother, Onuorah. I did not use knife on him, I only used my fist blows and karates on him till I was sure that he was dead. I was alone. I was not in the group of anybody. I did not come out immediately to say that I killed Chukwuma but when I heard that his people made out a list containing eight of my brothers as those who killed him, I came out openly and declared myself that it was only me who killed him and nobody else.
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The evidence showed that all those previous attacks by Paul Onwubiko on members of the appellants’ family unit were reported to the Police who apparently did nothing. The 1st appellant then resorted to “self help.” He, as it were, took the law into his own hand. That would have been permissible in the olden days when he would have been praised as a valiant defender of the life and rights of his family members.
In ancient Ibo jurisprudence, the killing of a human-being “Ochu” was regarded as a very serious offence. Such a killing can trigger off an inter tribal war unless the offending unit is prepared to make adequate reparation by the killer surrendering and offering to hang publicly or by the guilty village or family handing over one or two girls to the offended family to bear children to redress the balance. This was clearly shown in Chinua Achebe’s “Things Fall Apart.” The above is not a peculiar or an exclusive African phenomenon. Mter all the ascending process of civilised well-being in Europe was suddenly fractured by a crime. On June 28th 1914, Archduke Franz Ferdinand, heir to the Austrian throne, was murdered at Sarajevo. Austria declared war on Serbia. The conflagration soon spread into the 1st World War.
Coming back to the case of the 1st appellant, he never denied killing the deceased, Chukwuma Okoro. His defence was Self-Defence and Provocation. We have advanced a long way from the era of group responsibility to one of personal responsibility although Section 78 of the Penal Code still retains the idea of composition and compensation for homicide; See A. G. Kaduna v. Hassan (1985) 2 N.W.L.R. (Pt.8) 483 at p.528. Under the Criminal Code the defence of Self-Defence is obviously not available to the 1st appellant on the facts of this case. He was not being attacked by the deceased. His life was never in danger. Rather he killed the deceased as a revenge for the previous alleged acts of his brother, Paul Onwubiko, not directed against the 1st appellant, but against his relatives. The defence of Self-Defence cannot be extended thus far.
What of provocation? Learned counsel for the appellants in his Brief submitted that “situations which would warrant a feeling of revenge or retribution could justify a plea of provocation.” He relied on the decision of 411e West African Court of Appeal in Dummeni v. The Queen (1955)15 W.A.C.A. 7~. In Dummeni’s case supra there was a fight between two groups of young men. The trial Judge dismissed the plea of provocation solely on the ground that the deceased was not the person who offered the pro-vocation. The Court (W.A.C.A.) in that case made two important pronouncements namely: –
(i) That where a body of persons are acting together provocation can be successfully pleaded where the person provoked kills a member of the group from where the provocation came.
(ii) That provocation must not be ruled out simply because the person acting under provocation gives a free rein to feelings of revenge or retribution.
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In this case, the deceased and his brother Paul Onwubiko were not proved to have been acting together. Also the Court of Appeal in James Biruwa v. The State (1985) 3 N.W.L.R. (Pt. 11) 167 held that ‘where there is a concerted attack by a group and actual provocation is offered by one of the aggressors, retaliation may be properly expended upon another in the group, to found a defence of provocation.” In other words group retaliation must be the result of group provocation. In this case, Paul Onwubiko was acting alone.
Having thus discounted group provocation and consequently group retaliation, the principles decided by this court in Chukwu Obaji v. The State (1965) N.M.L.R. 417 at p.422 must apply to this case subject of course to the proviso that the act complained of as giving the provocation will also provoke an average man in the community to which the 1st appellant belongs. See R. v. John Okoro (1942)15 N.L.R. 63 at pp.65 and 66, R. v. James Adekanmi (1943)17 N.L.R. 99 at pp.1011102; George Nomad v. Bornu Native Authority (1954) 21 N.L.R. 31; Queen v. Afonja & Ors. (1955) 15 W.A.C.A. 26. Taking the cultural status of the 1st appellant as a yard-stick, E it can be safely said that the 1st appellant can put up provocation as a defence. But that defence can hardly stand when viewed against the background of Section 318 of the Criminal Code. That Paul Onwubiko killed his (1st appellant’s) brother is not a fact established by evidence. The appellant was not there. The deceased did not offer the 1st appellant any provocation. It will be extremely dangerous to extend the defence of provocation far beyond the contemplation of Section 318 of our Criminal Code and our various decisions on the subject. That will turn our law of provocation into a law of indiscriminate revenge and thus a law of the jungle. The appeal of the 1st appellant must therefore fail.
The 2nd appellant stands on a firmer wicket. At the earliest opportunity, after his arrest, he made a Statement to the Police tendered in evidence 0 as Exs. D and Dl. In that Statement he pleaded an alibi. He was sent by their Chief, Tagbo Kpela, along with others to convey the corpse of Onuorah Chizor alleged killed by Paul Onwubiko to the Hospital at Enugu-Ezike from there he went to the Police Barracks. It was in the barracks that he heard of the death of the deceased. He did not and could not possibly be at the time and place the deceased was killed.
Normally when a person accused of a crime sets up an alibi and gives names and tangible particulars which can be investigated and cross-checked, it is incumbent on the Police during their investigation to check up on this alibi. This the Police failed to do. The 2nd appellant testified in his own defence and repeated his alibi. The trial court then had both his Statement to the Police Ex. Dl and his sworn testimony in court. The question now is Was that enough or was the 2nd appellant expected to call further evidence to establish his alibi?
In criminal cases, the onus of proof is firmly on the prosecution. They have the onus, in this case, of proving the 2nd appellant guilty of the offence charged. Our system of criminal justice presumes an accused person (including the 2nd appellant) innocent until he is proved guilty. Now nobody set out to prove that which the law presumes in his favour. There is therefore no onus on an accused person to prove his innocence. To place such onus on the accused will be a serious misdirection. In R v. Lazarus Lobell (1957) 41 Cr. App. R. 100 at p.104, Goddard. C.J., outlined the burden or onus on the defence and on the prosecution whenever special defences, like alibi or self-defence are raised. The primary and general onus is on the prosecution throughout and that onus does not shift. Nwabueze v. The State (1988) 4 N.W.L.R. (Pt.86) 16. There is however an evidential onus on the accused -the onus of introducing evidence tending to show that he might not have been (not that he was not) at the scene and at the time the alleged offence was committed. If any trial court insists that the evidence tendered by an accused (pleading an alibi) must show that he was not there. that will be casting the onus of proving his innocence on an accused person. That will be wrong. If the evidence tendered by the accused merely raises a doubt as to whether he was present at the time and place of the offence. that is enough to secure him an acquittal. This was what this court decided in Oyewunmi Adedeji v. The State (1971) t All N.L.R. 75.
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Once the 2nd appellant has raised an alibi in Ex.D1 at the earliest opportunity. the onus is on the prosecution to investigate and disprove that alibi. The Chief mentioned by name in Ex.Dl should have been contacted by the Police and should have been called as a prosecution witness in the case. The Police was definitelv in a position to investigate whether the body of Onuora Chizor murdered on the 26/12185 was taken to Enugu-Ezike Hospital and if yes, those who took the corpse there. If all these existed then there would have been something against which the evidence of P.W.4 and P.W.6 could have been compared. If the Police inquiries proved negative -that is to say that Chief Tagho Kpela never saw the 2nd appellant on the 26/ 12/83, never sent him along with others to Enugu-Ezike Hospital – that would then confirm the evidence of P.Ws. 4 and 6 and the trial court would cannot be on the basis of the demeanour of the accused or appellant in this case. It has to be a logical conclusion arrived at after demolishing and therefore discounting the main strands supporting the alibi. The trial court had a duty to test the evidence of the 2nd appellant’s alibi against the evidence of the prosecution – here evidence of P.W.4 and P.W.6 who said they saw him and that he took part in the murder of the deceased. Not having investigated the 2nd appellant’s alibi, the trial court had nothing against which it could compare and contrast the evidence of the P.Ws. 4 and 6: See Umani v. The State (1988)1 N.W.L.R. (Pt.70) 274 at pp.284/285. Evidence of alibi ought not to be too readily or too easily brushed aside except it is counter-balanced and therefore neutralised and nullified by stronger, more cogent and therefore more convincing evidence on rebuttal – Onafowokan v. The State (1987) A 3 N.W.L.R. (Pt.61) 538 at p.553.
It is true that the trial Judge said he disbelieved the 2nd appellant and believed P.W.4 and P.W.6. ~or one thing, belief and disbelief should not he either erratic or automatic. They should be based on facts and possibilities and probabilities based on facts. The story of the 2nd appellant is not intrinsically arid inherently so improbable that it cannot be believed without its first having been investigated and found not to be true. Secondly, given the surrounding circumstances of this case with the two families locked in murderous and mortal strife, the Judge was bound to accept the evidence of the P.W.4 and P.W.6 (relations son and brother of the deceased) against the 2nd appellant from the opposing enemy camp, with a pinch of salt. If nothing else, the alibi set up by the 2nd appellant, which was not investigated, should have induced a real and genuine doubt in the mind of the learned trial Judge, which doubt he should have resolved in favour of the 2nd appellant – Samuel Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465 at p. 474.
I will conclude this concurring judgment by saying a few words about proof beyond reasonable doubt. This is the policy of our law. The policy derives from the fact that human justice has its human limitations. It is not given to human justice to see and know, as the great Eternal knows, the thoughts and actions of all men. Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty persons escape than that one innocent man is condemned. And that is why the court gives the benefit of any reasonable doubt to an accused person. That benefit of doubt should have been given by the trial court to the 2nd appellant.
The trial court erred in not doing just that. The Court of Appeal, with respect, fell into the same error. This court will give that benefit of doubt to the 2nd appellant. His appeal is hereby allowed. His conviction and sentence by the trial court are hereby set aside. The appeal judgment of the Court of Appeal is also set aside. The 2nd appellant is accordingly acquitted and discharged. The appeal of the 1st appellant is hereby dismissed. His conviction and sentence are both affirmed and confirmed. The judgment of the Court of Appeal in respect of the 1st appellant is hereby confirmed.
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Judgment delivered by
Nnaemeka-Agu, J.S.C.
This appeal by each of the two appellants against the confirmation by the Court of Appeal, Enugu Division. of their conviction of murder by Edozie, J., sitting in an Nsukka High Court raises rather interesting points of law.
My learned brother, Kanbi-Whyte, J.S.C., has stated fully the facts leading up to the conviction, and I do not intend to repeat them. I shall confine myself to those aspects of the facts necessary to give some meaning to the points of law I shall discuss.
Following the course taken by counsel on both sides I shall deal with the appeal by the 2nd appellant first.
The main plank in his case is a defence of alibi: In both his statement to the Police, Exh. D (English translation Exh. Dl) and his testimony in court he denied taking part in the murder. The murder of Chukwuma Okoro (hereinafter called the deceased) in question in this appeal took place at Ogurugu at about 5 p.m., on the 26th of December, 1983. But at about 8 a.m. on that day, one Onuora Chizor, a relation of the 2nd appellant had been allegedly murdered by Paul Onwubiko. Second appellant’s case in both his statement and in his testimony in court was that when in the morning he heard of the murder of Onuora Chizor he ran to the house of the Chief of the village called Tagbo Kpela Ojomo to find out how it all happened. The Chief then instructed him to join others in conveying the corpse of Chizor to Enugu-Ezike General Hospital, and he did. He did not go to any other place. By the time he came back in the evening he heard that Chukwuma Okoro, whose murder is the subject of these proceedings, had been killed. The 1st appellant in his testimony stated that he alone killed the deceased.
The Police did not investigate the alibi: they did not appear to have interviewed Chief Tagbo Kpela Ojomo at all. However, David Okoro (P.W.4) and Ukwuta Chekwu (P.w.6) the son and brother respectively of the deceased testified that they saw the 2nd appellant at the scene of murder and that he took part in killing the deceased.
The learned trial Judge preferred the evidence of P.W.4 and P.W.6, found that the 2nd appellant took part in the murder and convicted him as charged. I must here mention that he did not give any reason why he preferred the evidence of P.W.4 and P.W.6 to that of the two appellants on the point, save that he did not see why P.W.4 and P.W.6 should implicate the 2nd appellant. Strikingly, he himself in discharging the 3rd and 4th accused persons who were also implicated by P.W.4 and P.W.6 destroyed this sole ground for his belief of P.W.4 and P.W.6 on the point where he held:
I am aware of the possibility that P.W.4 and P.W.6 in order to secure adequate punishment for the murder of the deceased might try to implicate as many relations of the deceased (sic) persons as they may choose but I have taken this into consideration in discharging the 3rd and 4th accused persons.
I may therefore ask: if the relationship of these two vital witnesses with the deceased is a ground for doubt with respect to their attempt to implicate the 3rd and 4th accused, why should this not be a ground for doubt in respect of the 2nd? I am of the view that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of that defence to the benefit of one of them should also result in its acceptance for the benefit of the others. See on this –
…………………….Q…………………….
Anthony Okobi v. The State (1984) 7 S.C. 47;
Abudu v. The State (1985)1 N.W.L.R. (Pt.1) 55,
In this case the learned trial Judge should have applied the same consideration which he invoked for the 3rd and 4th accused persons for the 2nd appellant. If he did so, he would have given a benefit of the doubt to him.
But by far the strongest case of the 2nd appellant was his defence of alibi. In his statement to the Police at the earliest opportunity he stated that, as a result of the murder of his relation Onuora Chizor at about 8 a.m., he went to the house of Chief Tagbo Kpela Ojomo to find out how it all happened. At the instruction of the Chief he joined others in accompanying the corpse to Enugu-Ezike General Hospital. By the time he came back in the evening he heard that the deceased had been murdered. I do not agree with A the learned State Counsel on behalf of the respondent that the appellant did not discharge the evidential burden on him on the state of the above facts. There was no suggestion that the Chief was unknown. Nor do I agree that the burden was not discharged simply because he did not give particulars of the persons who went to Enugu-Ezike with him. I hold that the particulars. he gave were sufficient. The police had therefore a bounden duty to investigate the alibi, once the appellant discharged the evidential burden on him. See
Abudu v. The State (1985)1 N.W.L.R. (Pt.1) 55
Bozin v. The State (1985)2 N.W.L.R. (Pt.8) 465, at 468
Salami v. The State (1988) 3 N.W.L.R. (Pt.85) 670.
Besides the general duty of the prosecution to investigate an alibi once C an accused person discharges the evidential burden on him, one feature of this case, makes such an investigation more compelling. On the state of the facts, it is clear that whereas the evidence of P.W.4 and P.W.6, relations of the deceased, states that the 2nd appellant took part in the murder of the deceased, the evidence of the 2nd appellant and the 1st appellant points to the contrary. In that state of the evidence, it was only the investigation of the D police of the 2nd appellant’s alibi that could have rationally tilted the evidence one way or the other. It was not enough for the learned trial Judge to state that he did not see why P.W.4 and P.W.6 should lie against the 2nd appellant. The evident bad blood between the relations of the deceased and those of the 2nd appellant created a situation in which the evidence of either side should have been accepted with caution. This need for caution relates to E the evidence of P.W.4 and P.W.6. See Ali v. The State (1972)10 S.C. 87 and Essien (1938)4 W.A.C.A. 112. The ultimate burden to prove the guilt of the 2nd appellant beyond reasonable doubt was on the prosecution. With greatest respects, on the state of the evidence the learned Judge should have held that it was not possible for him to pick and choose between the evidence of P.W.4 and P.W.6 on the one hand and that of the 2nd appellant and 1st F appellant on the other. As the persuasive or ultimate burden of proof was on the prosecution, he should have held that the prosecution failed to prove its case beyond reasonable doubt. It was not enough for the learned Judge to have tried to hide under the clouds of “I believe” and “I disbelieve” without adverting to this debilitating element in the prosecutions case. As the learned trial Judge and the Court of Appeal failed to give a benefit of the doubt to the 2nd appellant, I should myself do so. His appeal therefore succeeds.
…………………….R…………………….
The appeal of the 1st appellant has its own peculiar feature. It raises a rather unusual defence of provocation. In his statement to the police, Exh. A. he stated that:
(i) Some time in 1982, Paul Onwubiko, a brother of the deceased stabbed his (1st appellant’s) brother, Udechukwu with a dagger. They wanted to take up the matter but as Paul’s people begged them his people dropped the matter.
(ii) Earlier in 1983, the same Paul Onwubiko stabbed the 1st appellant’s brother, called Ozoemena, in the head. 1st appellant’s people wanted to take up the matter but Paul Onwubiko’s people got the village Chief to intervene. So the matter was left to lie.
(iii) On the 26th of December, 1983, the same Paul Onwubiko at about 8 a.m., killed yet another brother of the 1st appellant called Onuora.
Incensed by the killing of Onuora which the 1st appellant obviously regarded as the greatest insult to his family, he set out in search of Paul Onwubiko. While looking for him, he saw his brother, Chukwuma and Ukwuta Onwubiko in the bush. On seeing him (1st appellant), Ukwuta ran away and the 1st appellant killed Chukwuma (deceased). The straight issue raised by this appeal is whether a defence of provocation would be available to the 1st appellant on these facts.
The view which courts in this country have taken of the defence of provocation in a murder case under the Criminal Code is that, inter alia, for it to avail an accused person the provocation must have been offered by the deceased. Where the issue is that of group provocation then the deceased must have been acting in concert with other members of the group who provoked the killing. See on this:
R v. Ebok (1950)19 N.L.R. 84;
R v. Nwanjoku (1937)3 W.A.C.A. 208;
Dummemi v. The Queen (1955)15 W.A.C.A. 75:
R v. Afonja & Ors. (1955) 15 W.A.C.A. 26.
I must pause here to observe that most of these decisions proceeded on the premises that the Nigerian Law on the point is the same with English Law. Even though the decision of the English Court of Criminal Appeal in the case of William Richard Hall (1930) 21 Cr. App. R. 48 appears to have decided that the murder of a brother who did not himself commit the provoking act in circumstances which in some material particulars are similar to the instant case can found a defence of provocation and result in reduction of a verdict of murder to manslaughter the most that I can say is that in England there have been two lines of decisions, one of which, represented by the view in the above cases, has been followed in Nigerian courts. We have not been asked in this appeal to over-rule those decisions. Unless and until we over-rule them, the principle will continue to apply. Applying the principle of those decisions in this case it follows that the defence of provocation has not been made out.
…………………….S…………………….
I therefore agree with my learned brother, Karibi-Whyte, J.S.C., that the appeal of the 1st appellant fails and should be dismissed. It is hereby dismissed. The appeal of the 2nd appellant succeeds, and is allowed.
Having disposed of the appeals, one aspect of the case still perturbs me. As I have stated, the appeal of the 1st appellant has failed on the state of our law, as it stands. As has been brought out most vividly in the concurring judgment of my learned brother, Oputa, J S.C., that state of the law is not in consonance with our traditional societal values which would have justified the act of a brother killing because of the brutal killing of his own brother and guardian, in fact the man who was training him in the Polytechnic. What is worse, the same Paul Onwubiko had stabbed Udechukwu a member of 1st appellant’s family in 1982 and yet another, Ozoemena, in 1983 before he killed yet another, called Onuora Chizor, about 8a.m. in the morning on which the 1st appellant killed the deceased. Regrettably, the police did not appear to have taken any firm and effective actions on these series of serious issues. Indeed, judging from the obvious falsehood of P.W.3, Aloysius Ndubuisi, the D.C.O. at the time, where he suggested under cross-examination that the appellants were also charged with the murder of their own relation, Onuora Chizor, earlier on the date of the incident – a preposterous falsehood which was rightly rejected by the learned trial Judge – it is clear that the Local Police obviously took sides in the serious conflict between the family of the deceased and that of the appellants. For this reason they failed to bring Paul Onwubiko to book for his two previous stabbing escapades. If they did, the two killings of the 26th of December, 1983, would have been prevented. This is sad, and ought to be seriously regretted.
This brings me to the recommendation I propose to make. Considering the circumstances of the case, I hold the view that, although, a defence of provocation has failed on the present state of the law, a recommendation ought to be made which can mitigate the harsh result to the appellant which has been created by the police refusal or neglect to act. I would therefore, and hereby recommend that the appropriate authority exercises mercy to the appellant.
Counsel
J.C. Okonkwo. For the Appellants
D.O. Okolo
Principal State Counsel, Ministry of Justice
Anambra State For the Respondent
STATE v. ADU
On Friday, December 10, 2021
SC.1146C/2019Before Their Lordships
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
Judgment
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment) : The respondent was the Vice Chairman of the Task Force of the Youths Association of Amaorie Ozziza Community in Afikpo North L.G.A of Ebonyi State.
On 18-9-2016, as such Vice chairman, he and other leaders of the taskforce directed and led members of the said Task Force of the Youths Association of the Amaorie Ozziza to go out and force youths in the community that had refused to attend the meeting of the Youths Association holding that day at the community playground, Armed with sticks, machetes and axe, singing war songs, they invaded the home of one Ali Agha to compel him to attend the said meeting.
In the process of compelling him to follow them, they killed him by inflicting multiple machete cuts on his body resulting in acute loss of blood.
Nine members of the group, including the respondent, were arrested by the police in connection with the incident. They were arraigned before the High Court of Ebonyi State, at Afikpo in Afikpo Judicial Division in criminal case No. HAF/24C/2017 on an amended one count charge of murder of Ali Agha contrary to Section 319(1) of the Criminal Code Law Cap. 33 Vol. 1 Laws of Ebonyi. The respondent was the 3rd accused.
Following conclusion of evidence and addresses by the prosecution and the defence, the trial Court rendered its judgment on 15-10-2018, holding inter alia that- “The firm view of this Court is that all the accused persons in this charge are caught up by Section 7 of the Criminal Code Law Cap 33, vol. 1, Laws of Ebonyi State of Nigeria, 2009. ANIGBOGU V.
UCHE JIGBO (2002) 10 NWLR (Pt. 776) page 472 at page 477 on need for local associations not to violate citizen’s rights to freedom of association, Court of Appeal held thus: “Desirable as development project in the community may be, there must be precaution to ensure that the fundamental rights of individuals are not trampled upon by popular enthusiasm. These rights have been enshrined in the legislation, that is the constitutions, enjoy superiority over local custom, freedom of association and religion are all constitutional rights which ought to be respected”. See also the case of Agbai v.
Okogbue (1991) 1 NWLR (Pt. 204) 391. The above authorities, it is evident that the movement of the youths to the house of the deceased in the manner in which it was carried out, was unconstitutional and was in the … a breach of the fundamental right of freedom of association of the deceased as stated by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is the law that where more than one person is accused of joint commission of crime as in the instant case, it is enough to prove that they all participated in the crime.
What each did in furtherance of the commission of the crime is immaterial. The fact of the common intention manifesting in the execution of the common object is enough to render the accused persons guilty of the offence. The Supreme Court in NWANKWOALA V. STATE (2006) 14 NWLR (pt. 1000) … at page 667 Ratio 3 – where on proof of common intention to commit crime, the Court intoned as follows: “where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime.
What each did in furtherance to the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. ” The Supreme Court in the same case at page 667 ratio 4, on joint liability for common action to commit crime the Supreme Court intoned as follows: “Where common intention is established, a fatal blow or gunshot though given by any of the parties is deemed in the eyes of the law to have been given by all those present and participating.
The person who actually delivered the fatal blow is, in that case, no more than the hand by which others also struck.” Consequently, the firm view of this Court that based on the pieces of evidence of PW3, PW4, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker.
The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple witness were on the lateral part of the deceased which are used for defence. The view of this Court is that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiangwu alone while the other accused persons stood.
Even if all the accused persons stood akimbo while Ejike Obiangwu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiangwu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra). The further view of this Court is that even if it was only Ejike Obiangwu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v.
State (supra), Ejike Obiangwu would only be the … which the other accused persons struck. The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise”.
The trial Court convicted the respondent and his co-accuseds for the murder of Ali Agha and sentenced them to death by hanging.
Dissatisfied with this judgment, the respondent herein commenced appeal No. CA/E/131C/2018 to the Court of Appeal at Enugu by filing a notice of appeal on 21-11-2018 against the said judgment. On 1-8-2019, the Court of Appeal delivered its judgment.
It concurred with the finding of the trial Court that the evidence adduced by the prosecution proved that the deceased, Alli Agha was murdered and then proceeded to decide inter alia that- “The appellant raised the defence of alibi at the earliest opportunity when he stated that he did not go with the other youths and task force members to compel other people to attend the meeting in his extra-judicial statement, see page 66 of the Records. The appellant subsequently stated that he was at the village square with the chairman where they waited for the others to join the meeting.
This is further corroborated by the fact that none of the other Accused persons mentioned the appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial statements; neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the Prosecuting placing the appellant at the scene of the crime. The defence of alibi, where raised presupposes that the Accused person was somewhere else other than the crime scene at the time crime was committed.
Appellant furnished the respondent with the information of about which left to the respondent to duly investigate it is the responsibility of the respondent to investigate, this rebut it or place the appellant at the scene of the crime which had to do. The police must investigate the defence of alibi at the … opportunity. That was not done in the instant case and the prosecution did not offer any explanation for the lapse. That was also a serious blunder on the part of the prosecution. See Ani v. State (2009) 16 NWLR (Pt. 1168) 443 S.C.
The onus is not on the Accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi. I am bound by this decision because the testimony of the PW5 was that “all these events happened in the presence of the youths president Augustine Ogbonnaya Egwu and his deputy, Inya Agu, Nkaa Egwu and others…” This to my mind does not elicit the appellant’s participation in the alleged crime; it only shows that he was present at the scene of the crime and nothing more.
The evidence of PW5 is not credible as it is wrought with inconsistencies; his extra-judicial statement contradicts his testimony in Court. The PW5 explicitly stated on page 12 of the Supplementary Record that; “As at the time I made my statement to the police, all about the incident was not fresh in my memory because as a result of the head injury that was inflicted on me, I had a mental problem… Before I signed my statement which was recorded for me by a policeman called Ojukwu because of the mental problem I had, it was not read to me.
I stated to the police the name of Igwe Oko and Inspector Egwu Oku as those that encouraged the youths by buying them drinks from where they moved to go and kill my brother. The police made a mistake by including their names as part of those that killed my brother.” Going by the mental state of PW5, it is risky to rely on his evidence and testimony as it is obviously unreliable.
The respondent shot itself on the foot by presenting the evidence and testimony of PW5 instead of that of a vital witness as Uche AIi who had an encounter with Ejike Obiangwu (the one who allegedly dealt the blow that killed the deceased).
Uche Ali had narrated in his extra-judicial statement on page 20 of the Records that when he heard there was a fight, he ran to the scene and found the deceased in a pool of his own blood where he was informed that it was Ejike Obiangwu that did it so he ran in the direction that he was told Ejike Obiangwu had followed and found Ejike Obiangwu still armed with a cutlass soaked with blood. The said Uche Ali received a machete cut too when he made enquiries as to why Ejike Obiangwu killed his brother.
It is curious that the Respondent did not call such vital witness to testify in Court which raises the presumption in Section 167(d) of the Evidence Act, 2011 that his evidence would have been detrimental to the case of the prosecution.
The learned trial Court on page 44 of the Supplementary Records stated thus; “It is in view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D that the earliest opportunity referred to him as one of the masterminds of the killing of the deceased.” In his extra-judicial statement, (Exhibit D), PW3 stated that: “The people that killed my brother are (1) Ejike Obiangwu (2) Isu Ogbonnaya (3) Nka Egwu.
The Youth President Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo” This does not place the Appellant at the scene of the crime; rather it raises the allegation of a conspiracy. The concept of conspiracy as seen in MBANG V. STATE (SUPRA) presupposes that two or more persons came together to form the common intention to commit an offence. This means that for a charge of conspiracy to succeed, the prosecution has to show the meeting of the minds of the Accused persons and an agreement between them to commit an offence.
PW5 on page 18 of the Records in his extra-judicial statement insinuated that on the 16thof September, 2016, there was a meeting or regrouping of the youths at the instance of Inspector Oko Egwu PW5 further stated that:- “The reason for the meeting that was called for that led to the killing of my elder brother was to discuss on the way for the youth to function again whether you agree or no” The above statement does not connote any intention to harm or even kill anybody. It does not reveal any conspiracy to commit an offence neither does it reveal the names of the participants of the meeting.
The PW5 did not mention that he was present at the meeting which could be reasonably inferred that the information he has on the said meeting of 16/09/16 is hearsay which is inadmissible. See OJO V GHARORO (2006) 10 NWLR (Pt. 987) 173 S.C OJUKWU V YARADUA (2009) 12 NWLR (Pt. 1154) 50 S.C and AROGUNDADE V STATE (2009) 6 NWLR (Pt. 1136) 165 S.C. Furthermore, PW5 recanted this statement (Exhibit B) during his testimony in Court when he stated that the police made a mistake by including the names of Inspector Egwu and Igwe Oko.
Therefore, there is no indication or evidence that any meeting took place before the date of the incident, and the meeting that was scheduled to take place never took place because of the incident. Where then is the evidence of conspiracy? None of the witness actually identified or specifically pin point what the Appellant did to kill the deceased nor did they state in clear terms the role the Appellant played in the killing of the deceased, if any.
PW3 in his statement to the police which was given at the earliest opportunity did not mention the extent of the appellant’s involvement in the killing of the deceased, he only stated that the chairman of the youths and the appellant who was the vice chairman masterminded the killing of the deceased without adducing further evidence as to the alleged conspiracy. The witness is not allowed to just make a blanket statement without providing specific details to this alleged plot to kill the deceased.
The statement of PW3 in this regard is a mere statement and not a statement of fact as evidence was not adduced to prove same and it is therefore not sufficient to implicate the appellant. The testimony given at the earliest opportunity is the best evidence, when the evidence and events are still fresh in the mind of the witness and not when the witness has had ample time and opportunity to implicate others. It is a long established principle of law that to be held credible and acted upon, the name of a suspect must be mentioned at the very first opportunity.
During the cross-examination, PW3 stated that he does not know whether there was a meeting of the youths. See page 187 of the Record(s) If this is the case, how then did PW3 come to the conclusion that the appellant masterminded the killing of the deceased? There is no evidence to that effect. DW1 and DW2 as elders in the community gave evidence to the effect that the elders of the community had granted permission to the youths of the community to hold the meeting slated for the 18/09/16 to discuss the way forward on the completion of lock-up stall initiated by the youths.
This evidence was not contradicted, rebutted nor refuted. Therefore, the purpose of the meeting slated for 18/09/16 was slated by DW1 and DW2 and not to conspire to kill the deceased. The Respondent failed to prove that, it was the act of the appellant that caused the death of the deceased. The only ingredient of the offence of murder that was established by the respondent ease the first ingredient which is that the deceased had died. Since the second ingredient which relates to cause of death was not established, the third ingredient and conspiracy theory goes to no issue.
Having a corpse as proof of death is not sufficient evidence to hang another man for the death of the deceased. The intention to kill as in the motive and the actual act of killing or ensuring the act is done, as in a conspiracy must be established beyond reasonable doubt. The Prosecution failed to prove the 2nd & 3rd ingredients of the offence of murder beyond reasonable doubt. The absence of a clear intention and common intention in the circumstance of this case compels one to allow the appellant the benefit of the doubt. This appeal is allowed.
The decision of the learned trial Court is hereby quashed. The appellant is discharged and acquitted and shall be released from custody immediately”.
It is against the above judgment of the Court of Appeal that the appellant herein filed a notice of appeal on 6-8-2019 commencing this appeal No. SC. 1146c/2019. The notice of appeal contains three grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised two issues for determination as follows- I. “Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased”. (Ground 1) II. “Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Ground 2 and 3).”
I must start the consideration of the two issues raised for determination by the parties herein in their respective briefs by observing that the judgment of the Court of Appeal exposes that its review of the factual basis of the judgment of the trial Court did not follow the prescription in Section 135 of the Evidence Act thusly- (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of providing reasonable doubt is shifted onto the defendant.
By virtue of this provision, the Court of Appeal was bound to find out if the evidence of the prosecution on its own established a case against the respondent beyond reasonable doubt and if it finds that it did, then proceed to find out if the evidence of the defence proved reasonable doubt in the case established by the evidence of the prosecution. The judgment must prima facie reflect this approach in dealing with the evidential basis of the decision. The judgment of the Court of Appeal shows that the Court did not direct itself on the appropriate approach to adopt in its appellate review.
It went straight to picking out what it adjudged as faults in the evidential basis of isolated parts of the judgment of the trial Court. The judgment of the trial Court was based on findings of facts that were largely founded on the credibility of witness testimonies and the trial Court’s belief of the said witness. Therefore, an appellate review of the evidential basis of such findings of fact must be limited to finding out if the findings of facts were perverse in the sense that they were not supported by any evidence at all, or are contrary to the logic of the evidence or are unreasonable.
It is obvious from the terms of the judgment of the Court of Appeal that its decision that the prosecution failed to prove the case against the respondent beyond reasonable doubt is the result of its understanding of the evidence before it and the inferences and conclusions it drew from the said evidence and not the consideration of the validity of the findings of facts by the trial Court.
The law is settled by an unending line of judicial decisions that an appellate Court cannot interfere with the findings of facts by a trial Court or its belief of witnesses that have not been shown to be perverse because it holds a different view of the evidence. The appellate Court cannot substitute its own views for those of the trial Court, especially where the issue turns on the credibility of witnesses. Once, as in the present case, there is sufficient evidence on record from which the trial Court made its findings of facts, the appellate Court cannot interfere.
This is because the reception and evaluation of evidence are primarily the functions of the trial Court. See for example Efe V The State (1976)11 SC 75, Okonofua V The State (1981) 6-7 SC 1 @ 14, Bamgboye V University of Ilorin (1999) 6SC (Pt.ii) 72 and Fasikun V Oluronke (1999) 1 SC 16. In the light of my foregoing holding, this appeal succeeds without the need to further into the issues raised and argued in the briefs herein. Be this as it is, let me still consider them for whatever such exercise is worth.
Learned Counsel for the appellant in his brief has argued extensively that the said inferences and conclusions by the Court of Appeal are not supported by the evidence. Learned Counsel for the respondent in his brief argued in support of the said inferences drawn by the Court of Appeal from the evidence before it.
Let me now consider the merits of these arguments. Let me start with the finding of the Court of Appeal that:- “None of the other Accused persons mentioned the Appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial Statements, neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the prosecution placing the appellant at the scene of the crime.”
This finding by the Court of Appeal is contrary to the evidence. PW5 in Exhibit B, his extra-Judicial Statement made at the police station during investigation before trial, stated that the respondent was present amongst the youths at the scene of the crime when the deceased, his elder brother was attacked and killed by the youths and that Ejike Obiangwu inflicted the machete cuts that killed the deceased and Chukwu BenbeIla inflicted the machete cut on PW5’s head.
The exact portion of the exhibit B that contains his statement reads thusly – “The deceased Ali Agha ‘m’ is my immediate elder brother.
It was at about 8am of 18-9-2016, I was coming out from my father’s compound when I saw my younger brother Agha Pius crying, I asked him what the problem was that made him to be crying and he replied that he was flogged by the youths of our village by names (1) Umeh Agwu ‘m’ (2) Chukwu Benbella as I was still standing with my younger brother, the youth made up of the following people came; Umeh Agwu ‘m’, Chukwu Benbella Ogbonna Egwu ‘m’, Aka Esa, ‘m’, Ejike Obiangwu ‘m’, Eko Chukwu ‘m’, Moses Onyia ‘m’, Sunday Ogbonaya Oko Aka Dede ‘m’, Oko Akpu ‘m’ Irem Chukwu ‘m’, Inspector Egwu Oko ‘m’, Igwe Oko ‘m’ and others whose names I cannot remember but if I see them, I will recognize them.
There came from same village with me. They were all armed with cutlasses and sticks. It was when they entered inside my father’s compound that the deceased, my elder brother, Ali Agha warned them that they should stop beating his younger brother again, at that point, Sunday Ogbonnaya, Oko Chukwu, Aka Dede and that my brother Ali Agha has insulted the youths, that he should either lied down to be given twenty strokes of cane or he will go to the village play ground to face the punishment but my brother refused and that was when they started cutting him with cutlass all over his body.
The name of the person that actually cut him at his face and back that led to his death is one Ejike Obiangwu ‘m’. The truth is that the people I saw that killed my elder brother are (1) Ejike Obiangwu and Chukwu Benbella ‘m’. It was even Chukwu Benbella that gave me a machete cut on my head. All this events happened in the presence of the youth president Augustine Ogbonannya Egwu and his deputy Inya Agu, Nkaaa Egwu and others. This is my statement.”
The PW5 testified in open Court in examination in chief thusly: “I know one Ali Agha. He is my elder brother. He is dead now and in the mortuary. I know how he died. On 18/9/2016 in the morning hours which was a Sunday that people go to church. Then as I was coming out of my father’s compound, I saw my younger brother one Pius Okpara Agha, that is the PW3 as he was crying. I asked him why he was crying and he told me that these Accused persons in the dock and some who are on the run trooped into his shop and started beating him in his said shop.
As we were still talking my elder brother late came out of the house and also asked him why he was crying and he started narrating the incident to him. As we were still asking him, I heard a noise and that noise was from a great crowd who were singing war song which does not tolerate the presence of women. In a short while I saw this crowd of people coming into our compound holding machetes and sticks. As they came in, the 1st Accused who is the chairman of the task force asked my brother the deceased to come to the village square.
The deceased now stated that he had warned them not to come into our compound and beat my brother. At that point the 1st Accused person, stated that he had insulted the youths. As he asked my brother to come out, that the youths would give him 20 strokes of cane and my brother refused to come out. The 1st Accused person now ordered the youths to take hold of my brother.
As the 1st Accused gave this order, that Nicholas Olughu the 5th Accused person came into our house and started dragging the deceased out of the house forcefully. (This Nicholas Olughu was wearing Jonathan Goodluck 2015 T. shirt.)” When the deceased saw that the youths were serious about him coming out, he ran away. These Accused persons and others on the run pursued him. As I saw this and reasoned that the youths could kill my brother I ran after them. As I ran a little the 7th Accused person held me while the 4th Accused person inflicted a machete cut on my head.
The scar still on my head, if the Court so desires, the Court can see it. (The Court actually observed the head of the PW5 and saw a scar reminiscent of a machete cut). As I looked up, I saw the youths had entangled my brother the deceased with their legs and he fell down. They now stated inflicting machete cuts on him as if he was a tree. When they saw that he had become weak and dead, they left him and ran away still chanting their war song to the village square. I started carrying the deceased thinking that he was still alive and I did this in conjunction with the PW3.
As we were doing that I also saw that the PW3 was also given a machete cut. I also saw that PW4 had also been inflicted with machete cut on her face. I also saw that one Uche Ali had a machete cut. I now carried my brother the deceased on a motor bike and took him to Mater Hospital where a medical Doctor examined and confirmed him dead. I left that hospital and went to the Police Division in Afikpo and lodged a complaint. The police now accompanied me to the Mater Hospital. As we were going to the hospital, the police engaged the services of a photographer.
As I saw that I was bleeding profusely, I left for Afikpo Medical Center for treatment. After, the treatment the following day I went to the police at Abakaliki and made a statement.
Under cross-examination he testified thusly – Q – In your statement of 19/9/2016, that is Exhibit B, you stated: “The people that I saw that killed my elder brother are
(1) Ejike Obiangwu and (2) Chukwu BenbeIIa ‘m’? A – The Accused persons and those still on the run are those that killed my brother, I even listed their names in a paper. Q – You told police in this Exhibit “B” also: “The name of the person that actually cut him at his face and back that led to his death in one Ejike Obiangwu? A – I was not myself when I made Exhibit B but I started that it was Ejike and others that killed my brother.
Q – Having mentioned Ejike as the person that killed your brother, you just started mentioning other persons that they were there in order to rope them A – Ejike and the Accused persons came to the scene of crime together and it was Ejike and these Accused persons and others still on the run that killed my brother; if Ejike did not kill my brother why is he running away.
PW3, Pius Okpara Agha in exhibit D, his extra-judicial statement made at the police station during investigation mentioned the respondent as one of the masterminds of the attack and killing of the deceased. The exact text of exhibit D reads thusly- “It was on the 18th of September, 2016 when I went to my shop at about 0700 hours and started work as a hair stylist.
As I finished barbing the first person and was about to barb the second person, the youth of Amorie Ozizza led by one Oko Chukwu Dede M. came to me and asked if I had no heard the bell that was ranged calling us for a meeting, I told them that I did not hear any bell, that I slept at Amaike Ozizza. They then told me that I should come out and receive twelve strokes of cane, at that point, I told them that it is too early that people are going to church, they started beating me, after which they left me and went to Ogo.
After sometime, they came back to me at my mother’s place Eziukwu Amorie Ozizza. On getting there, they saw me and late Ali Agha, one of the … the Ogo for the meeting, my brother late Ali Agha told them that we are going to church. They left us and went back.
After some time, the youths came back now singing a war song popularly sang in the village when there is problem, they armed themselves with cutlasses and sticks and started destroying the roof of the house at one Ugo Euo and after that we ran for our dear lives and they pursued us and met my brother late Ali Agha and started cutting him with cutlasses all over his body in the process, I went to rescue late Ali Agha and was cut with a cutlass by Chukwu BembeIIa and Umeh Agwu M all of the same village with me.
The people that killed my brother are (1) Ejike Obiahu M. (2) Isu Ogbonnaya ME and (3) Nka Egwu. The youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa M, he masterminded the whole thing with his vice Inya Adu Aringo. This is my statement”.
His testimony in examination in chief in Court reads thusly- “It was on the 18th day of September, 2016 at about 7am on that Sunday, I and the deceased were living at Amikp in the house of my grandfather. On that Sunday morning, we came to Amaorie, that is, Eziukwu Amaorie. The deceased now decided to go and see our mother in that our compound to greet her. I went and opened my barbing salon as I opened the shop, the first customer came. I barbed his hair and went to the second customer.
As I was barbing the second customer, these Accused persons who are youths of Amaorie and others still on the run came and surrounded me and said: are you hearing the traditional gong being sounded? I now said that I did not hear it because I live at Amikpo. They told me to come out that they would administer to me twelve strokes of the cane. I told them that today is Sunday and that after barbing the second person that I will start going to church. As I was still telling them that, they all started flogging me, all over my body with sticks.
After flogging me, they now started going to the village square. I now closed my barbing salon and started going to my mother’s house because I was no longer myself. As I now was in my mother’s house, the deceased, myself and my mother were discussing in her house. As we were there discussing, all these Accused persons and others decided to come to my mother’s house and asked us what we were still doing there. The deceased now told them that what are you people doing here? That today is Sunday and that we were preparing to go to Church. They now went back to the village square.
As they were going, I told the deceased that theses Accused persons and others had been to my barbing salon and beat me up. As we were still in my mother’s house, these Accused persons and others still on the run started advancing towards my mother’s house chanting war songs such that a female who hears must take to flight. They were holding sticks, machetes and axe. As they got to my mother’s house, they commanded the deceased to come out from the house for them to give twenty strokes of the cane for neglecting them.
The deceased said that he will not come and that he was even a Counselor in Oziza and how come they have come to intimidate him. At this point they now rushed in to the said house to grab him and the deceased took to flight and I followed him in that flight. As both the deceased and I ran out of the house we ran toward different directions, with the deceased running towards where the elders of Amaorie perform the traditional rite while I hid myself. As I was in that hiding place, I started hearing the shouting of the deceased.
As a result of the shouting emanating from the deceased, because he was my elder brother I decided to come out of my hiding place to know what was happening to him. As I came out, I saw these Accused persons and others on the run inflicting machete cuts on the deceased jointly.
As I saw what the Accused persons were doing to the deceased, because the deceased was my elder brother, I could not bear what was happening to him, I braced up myself and rushed towards him, in a bid to rescue him from theses Accused persons and others still on the run, as I made this attempt, the 4th Accused person inflicted a machete cut on my arm. (The Court took a look at the said left arm and saw a scar that is reminiscent of a machete cut).
As I still attempted the rescue mission of the deceased one of the youths who was with the Accused persons and who is still on the run inflicted another machete cut on my hand, close to the wrist. They now jointly violently shoved me aside as a result of which I crash landed to the ground with my mouth and which inflicted injury on my lips which caused same to be stitched. Before I could get up, they had completely killed the deceased. I then stated shouting.
As I was shouting another of my elder brother called Alum Agha Geoffrey started running towards where I was with injury on his head which the youths had also inflicted on him. The youths also inflicted a head injury on one Uche Ali. I now told these people whom I mentioned above who also had injuries on them, but whose injuries were lighter than that of the deceased and one Ugochukwu Evo who had also gotten to the scene to assist me in carrying the deceased so that we could take him to where he could get medical attention.
They assisted me and we placed the deceased on motorcycle that took him to the Mater Misericordiae Hospital with the deceased foot daggling on the road. As we got to the said Hospital people scampered for safety and I started pleading with the people I saw around to please call for any medical doctor, the medical doctor examined the deceased and confirmed him dead. I then moved from the said Hospital to the Afikpo Divisional Police Headquarters and reported the incident.
They now followed me and also invited a photographer who accompanied them and we now got to the said hospital and the policemen then assisted in depositing the body of the deceased in the mortuary after taking his photographs. The police after depositing the body of the deceased in the mortuary, asked me to follow them to their station. As we got to the said police Division, the police men now called all other police stations within including the Police Stations at Unwana and Akpoha and Area Command Afikpo.
Policemen from the above mentioned stations gathered and told me to take them to Amaorie Oziza. As we got to the market square at Amaorie Oziza, these Accused persons and others still on the run used tyres to make burn fire on the roads as a result of which the said police men were compelled to park their vehicles at that market square and moved on foot to the Elu Amaorie where we all saw the Accused persons with the blood stained machete they were still holding and which they all held into air and were singing and dancing to the war song saying that nothing will happen.
They now started hauling stones on the advancing policemen as a result of which the police retreated for the safety of them and me. As we were making retreat, the police now called the Police State Command and reported the incident on account of which Police from the Ebonyi State Command Headquarters used three vehicles and came to Amaorie Oziza. Before the arrival of these police from Abakaliki, the Accused persons and others had dispersed.
Since these Accused persons and others had dispersed, the police from Abakaliki now took me along with them to Abakaliki where I now made statement to them stating what happened”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
This testimony was not challenged or shaken in cross-examination, PW4, Regina Chukwu Evo, in her testimony in examination in chief, stated that “I can recall the event of 18/9/2016.
On that 18/9/2016, a Sunday in 2016, I was in my house carrying a baby when I heard the Youths of Amaorie with their sing song or war song marching towards the house of Mama Ali Agha the mother of the deceased carrying machetes, Axe and sticks and met the deceased in the house of his mother and chased him out of said house and he started running and these Accused persons obstructed his speed by using their feet to entangle his legs and he fell down and they started inflicting machete cuts on him.
Then I started begging them not to kill him that he is a human being o, then one of them called Ejike used the machete he was holding and inflicted machete cut on my face and I started bleeding profusely. I now immediately rushed to a patent medicine store where I was treated with stitches on my face. After this, as I was returning, I now saw the deceased Ali Agha as he was being conveyed to the hospital on a motor bike and I also saw Okpara and Alum who are the younger brothers of the deceased and one Uche Ali who were carrying various injuries on their bodies.
It is Ogbolsu and Ejike who are still on the run and these Accused persons that collaboratively killed the deceased. I made statement to the police in Abakaliki, Ebonyi State.”
Under cross-examination she testified that “Q- Between today and when you made your statement, when was the incident fresher in your memory? A- I have stated what I know what happened. It was these Accused persons that killed the deceased. I have stated the whole thing I know. It is these Accused persons that killed the deceased and inflicted machete cut on my face and I became unconscious and fell down. Q- You said in Exhibit E that it was Ejike Obiahu that used a cutlass and cut Ali Agha all over his body that caused his death?
A- It was not only Ejike Obiahu that inflicted machete cuts on the deceased. All the Accused persons and those still on the run inflicted machete cuts on the deceased and also inflicted machete cuts on my face. You see my face, it is stitched. Q- I am putting it to you that you have come to tell the Court lies by departing from your statement to the police? A- These people in the dock, if you want me to start mentioning their names, I will. They are the people that killed Ali Aghas I am not telling a lie.
Is it because Ejike Obiahu is not on trial that they are now alleging that it was Ejike alone that killed the deceased my brother. Q- Were you forced in the police station to mention only Ejike Obiahu? A- I never stated that it was Ejike Obiahu alone that killed the deceased. Q- Where precisely did his killing of the deceased take place? A- It was at Obu Amaorie that the Accused persons killed the deceased. Q- From your house to where the incident took place, can you give an idea as to the distance? A- The distance between my house and the Obu where the deceased was killed is about 1 pole.
Q- At the time of the happening of this incident, you told the police that you were in your house? A- I was in my house carrying a little child when the incident started. But when they chased after the deceased, I came out and started pleading with them to leave him alone and they refused. Q- You observed that day that it was the deceased who first inflicted a machete cut on Ejike Obiahu who then over-powered him and took the machete from him and then inflicted a cut or cuts on the deceased? A- It is a lie. They are now alleging as above because Ejike is not here in Court.
They are the people who killed the deceased. Q- How was the deceased related to you? A- The deceased was a member of my maternal family. Q- You are now telling the Court lies because of that relationship that you had with the deceased? A- I have not come to this Court to tell this Court lies. It is these Accused persons that killed the deceased. The deceased that they killed was not holding any wood or stick including myself that they inflicted machete cuts on my face. Q- In Amaorie Oziza, Youths had always been meeting for the good of the community before they stopped for a while?
A- I do not know. Q- That meeting that was called on 18/9/2016 was not for the killing of Ali Agha but for the purpose of the development of Amaorie Oziza? A- I do not know. But if it was for the development of the Community, why did they kill my brother on that day. Q- Between what you told the police in your statement, that is, Exhibit E and what you have told this Court; which do you want the Court to believe? A- It is these Accused persons that killed the deceased, inflicted machete cuts on the deceased’s brothers and myself.
Q- How many people were present in the house of Ali Agha’s mother’s house when the Amaorie Youths went to the house? A- There were many people there in the Ali Agha’s mother’s house. But when the Youths came with their war song, they ran away”.
It is glaring that PW3, PW4 and PW5 stated that the respondent was present at the scene of crime as part of the youths that went to the deceased house to force him to attend the youth meeting at the village square.
The decision of the Court of Appeal that PW5’s testimony that the President of the youths and the respondent who was his deputy were present when crime was committed does not show that the respondent participated in the crime, as it only shows that he was present at the scene of crime and nothing more, is not correct in fact and in law considering the provisions of Section 8 of the Criminal Code Law and the facts that he was there as part of the joint action of the Youths task force for the unlawful purpose of forcing the deceased by flogging with cane to attend their meeting and the deceased was killed in the process.
The decision of the Court of Appeal that none of the witnesses actually identified or specifically pin point what the respondent did in killing of the deceased show that the Court did not address its mind to the law on joint responsibility for an offence committed during a joint enterprise to carry out an unlawful purpose. The basis of responsibility for the crime is participation in the joint enterprise with the common intention to carry out a purpose that is unlawful.
The specific role played in the commission of the offence that occurred in the joint enterprise is not a relevant consideration for joint responsibility by all members of the group for the crime.
The decision of the Court of Appeal that PW3’s testimony did not give specific details of how the respondent masterminded the killing of the deceased disregards the admitted facts that it was the youths association and Youths Task Force that decided that the Youth Task Force should go out and force the deceased to attend the meeting of the association holding that day at the village square and that the youths went to the house of the deceased to force him to attend the meeting and that the respondent as Vice President or Chairman of the Youths Task Force and his President was at the house of the deceased that day for that purpose.
Their leadership of the Youths Task Force and their presence at the deceased’s house when the invasion of the house and the killing of the deceased took place relieves the prosecution of any duty to prove any other overt acts of their mastermind of the attack.
It is not disputed on the evidence of both sides that when the Youth Association meeting scheduled to hold that day was about to start, it was observed that some of the youths were not present. On the direction of the President Youths Association, the Youth Task Force went out to compel the absent youths to attend the meeting. The absent youths would be flogged 20 strokes of cane for failing to attend the meeting voluntarily before they are compelled to attend the meeting.
It has never been in dispute that the youths, with the common intention to force the deceased to attend the said meeting, went out on 18-9-2016 to actually force the deceased to attend the meeting.
The question of whether they conspired to kill the deceased is irrelevant in the circumstances of this case. The Court of Appeal did not direct itself on the proper question to ask on the evidence. The proper question is whether there is evidence of a common intention of the group of youths to go and force the deceased to attend the meeting.
The case of the prosecution is not that the youths conspired to go and kill the deceased. Its case from the evidence is that they formed a common intention to go and force him to attend the meeting and that in the process of executing or carrying out that unlawful purpose as a group, the deceased was killed by the machete cuts of one or more member of the group. Those facts are not in dispute on the evidence.
The part of the judgment of the trial Court that held that the evidence of PW3, PW4 and PW5 eye witnesses of the crime sufficiently fixed the respondent at the crime scene, reads thusly- “It is view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D at the earliest opportunity referred to him as one of the masterminds of the killing of the deceased”.
In his extra-judicial statement, (Exhibit D), PW3 state that; “The people that killed my brother are (1) Ejike Obiahu (2) Isu Ogbonaya (3) Nka Egwu. The Youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo”.
The Court of Appeal reproduced the above part of the trial Court judgment in its judgment and held thusly- “This does not place the appellant at the scene of crime, rather it raises the allegation of a conspiracy”. This holding is glaringly wrong as it is not supported by the evidence. The Court of Appeal drew the wrong conclusions from the said evidence.
The decision of the trial Court is that the evidence given by PW3, PW4 and PW5 fixed the respondent at the scene of the crime. The Court of Appeal had earlier in its judgment held that the testimony of PW5 showed that the respondent was present at the scene of crime at the time the crime was committed.
Having held that the testimony of PW5 showed the presence of the respondent at the crime scene, the Court of Appeal contradicted itself when it held that the prosecution were bound to investigate the claim of the respondent in his extra-judicial statement at the police that he remained at the village square and did not follow the Youths Task Force to go and force the deceased and other youths to attend the meeting and so was not at the place where the youths attacked and killed the deceased.
It is a recurring judicial restatement of considerable antiquity that where eye witness testimony or other evidence has fixed the accused at the crime scene when the crime was committed, and the evidence is believed by the trial Court, the fact that the police did not investigate the claim of alibi becomes irrelevant.
Whereas in this case the respondent was mentioned by three eye-witnesses, as being amongst the youths they saw attack and killed the deceased in his house, it becomes a straight issue of credibility of the witnesses and once the trial Court believes the witnesses as happened in this case, the trial Court’s reliance on such testimonies as evidence of his presence at the scene of crime cannot be faulted. Even the Court of Appeal affirmed the decision of the trial Court that the evidence of PW5 show that the respondent was present at the scene of crime. See Ezekiel Adekunle v.
The State (1989) 12 SCNJ 184 at 190, Obiode v. The State (1970) 1 All NLR 35 and Mathew Obakpolor v. The State (1991) 1 SCNJ 91.
I find it difficult to agree with the decision of the Court of Appeal that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established, but for the prosecution to disprove the alibi”.
In a situation where during trial three witnesses for the prosecution testified that the respondent was among the youths that came to the deceased’s compound, attacked him and killed him and that the respondent was present when the deceased was attacked and killed, the respondent cannot safely rely on his mere assertion that he did not follow the youths to the deceased’s house and that he remained at the village square for his defence to the testimonies of the three prosecution witnesses fixing him at the scene of crime.
As this Court held in Obakpolor V The State “It is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence”.
Apart from stating in exhibit K, his extra-judicial statement at the police station and in his testimony in open Court that he remained in the village square and did not follow the youths to go to force the deceased to attend the meeting, he did not mention the names of any person in whose company he was or that saw him at the village square at the material time.
His statement in exhibit K reads thusly- “My name is Inya Adu M. AKA Ringo, I am a native of Agba Amorie Ozizza in Afikpo North LGA of Ebonyi State. Born into the family of late Mr Adu Egwu and late Mrs Uzo Inya. I am the last born in the family. I am married with five children. A fisher man by profession. I had my primary education and secondary education at comprehensive secondary school Ozizza but I stopped in JSS 3. I know the deceased late Ali Agha. We are from the same village. I am the vice chairman of Amorie youth association. We have task force members of the youth.
The chief task force is Sunday Oko Chukwu M. AKA DEDE. Other members of the task force are 1. Eko Chukwu M. 2. Elem Oyari M. Inya. 3. Ogbonnia Obure M. AKA Consider. 4. Anderson Agwo Ume M. 5. Ewa Olughu M, 6. Chukwu Bembella M, 7. Ejike Obiahu M. The task force members are empowered to use cane in the course of their duties. It is equally the duty of the task force members to go to the village and force members of the youth who refused to come for meeting to attend. In case they force any member to come for meeting and he refuses, they now use their cane on such person.
On the 18th of September, 2016 we the youth members of Amorie Ozizza scheduled a meeting to be held at the village square Amorie. At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come. As the task force members came back, they reported to us that some people like Evo Chukwu m, Okechukwu m, Elem Ali m, Uche Ali m, and others whose names I cannot remember refused to come for the meeting.
We then instructed them to go back and force them to come for the meeting, after some time, they came back and reported that when they got to them, they met one Ali Agha M, who told them that they should go, that they have formed their own group. After reporting that to us, we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting but I did not go with them.
The next thing I heard was that as reported by the Chief task force Sunday Oko Chukwu M, was that as they reached, Ali Agha collected machete and gave Ejike Obiahu a cut on his body which caused him harm, that was when Ejike Obiahu collected the cutlass and gave him several cuts on his body but he did not die instantly, it was when he was rushed to the hospital that he was confirmed dead. It was Ejike Obiahu that killed Ali Agha. We did not have any meeting to kill Ali Agha. As Ali Agha died, the police came and started arresting people. So I ran away to Ekok Cameroun.
It was there at Cameroun that I was called by my people to come back that running will not solve my problem. I don’t know where Ejike Obiahu is now. I don’t have his phone number. This is my statement”.
His testimony in examination in chief as DW5 in open Court reads thusly- “On 18/9/2016, what I know about this charge is that I returned home on 16/9/2016 because of the burial of the mother of Inspector Oko Egwu. So after the said burial which took place on 17/9/2016, then on 18/9/2016 in the morning hour I heard the bell of the community toll and I came to the village square which is the usual place of our meeting. As I got to the village, I observed that other youths who presumably heard the bell also were also advancing towards the village square.
At that village square all the youths that had gathered were waiting for the task force members who were in-charge of the ringing of the bell and who after the ringing of the bell would move round the village to ensure that all the youths attended the meeting. As we were still waiting at the village square for the arrival of the task force members who on their own split themselves into two groups for efficient discharge of their duties, one of these two groups of the task force members arrived the village square first.
The youth then started waiting for the arrival of the second group so that the meeting would commence. The second group of the taskforce members eventually arrived the village square and informed the youths that there were some youths who stated that they would not attend the meeting. The task force members were asked to go back and bring those youths who said they would not attend the meeting.
There was also the information from the second group of the task force to the effect that the deceased Ali Agha told them they the youths at the village square could go on with their meeting that they themselves had formed their youth association and would be holding their own meeting since Amaorie youth association is not more than one in Amaorie, the whole task force members were now asked to go back and bring those youths.
While at the village square, we did not know that there was any problem, what we saw next was the 4th Accused person coming to the village square with a machete cut on his head and blood flowing there-from. We became dumb founded because we were aware that the task force members do not use machete to accomplish their assignments. We then decided to go to the chairman of Amaorie Development Union and tell him what was happening. It was while we were at the chairman’s place that we heard that Ejike had inflicted machete cut on the deceased. We did not sing any war song.”
The assertion without more did not sufficiently raise an alibi. The statement in exhibit K did not provide particulars of facts that police should verify. His testimony in open Court suffers the same lack of particulars of facts that may cast reasonable doubt in the testimonies of PW3, PW4 and PW5 that they saw him at the scene of crime amongst the youths that attacked and killed the deceased. The belief of the testimonies of PW3, PW4 and PW5 is justified even by the content of the respondent’s statement in exhibit K and his testimony as DW5 in open Court.
Let me consider the holding of the Court of Appeal that the prosecution failed to prove that it was the act of the respondent that caused the death of the deceased and that the prosecution failed to prove common intention and a clear intention in the circumstances of this case. This holding is clearly wrong. The Court of Appeal judgment was silent about the findings of facts by the trial Court that it is the several machete cuts inflicted on the deceased by the youths that attacked him in his house on 18-9-2016 that caused the death of the deceased.
The trial Court relied on the evidence of the witnesses of both sides and documentary exhibits Q, Q1 and Q2 (order for post mortem examination, Death Report to coroner and Report of Medical Practitioner) in making these findings of fact. The judgment of the Court of Appeal did not consider if the findings are perverse and did not impeach them.
It was silent on the medical evidence that the several machete cuts of the deceased caused his death, which evidence is contained in exhibit Q, Q1 and Q2 and the testimony of PW2, the medical officer that examined his corpse and issued exhibit Q2 and in the testimonies both prosecution and defence witnesses. It is obvious from the evidence of both sides that the death of the deceased and the fact that it was caused by the several machete cuts inflicted on him by the youths in his house is not in dispute on the evidence.
It is not in dispute on the evidence of both the prosecution and the defence, that the Amaorie Ozizza Youths Association Task Force with common intention to go and force the deceased to attend the youth association meeting holding at the village square, proceeded to his house for that purpose and that in the process, some members of the youths Task Force inflicted machete cuts on the deceased killing him.
It is not in dispute on the evidence of both sides that when they set out to go and compel the deceased to attend their meeting, their common intention was to compel him by flogging him with canes and not to kill him, even though they were armed with axe, machete and sticks.
The respondent stated in exhibit K that it is their duty as task force members to use cane on any youth who refused to attend meeting, that on 18-9-2016, task force members reported that some youths refused to attend meeting, “that when they received report that the deceased refused to come and said he had formed his own group, “we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”.
The trial Court believed the testimonies of PW3, PW4 and PW5 that they saw the respondent at the scene of crime when the crime was committed.
Apart from the evidence of PW3, PW4 and PW5 that they saw him amongst the youths that came back to force the deceased to attend the meeting, but who ended up attacking and killing him, his statement that he and others directed or instructed the youths to go and forcefully bring the deceased and his splinter group to their meeting, further makes him culpable and responsible for any crime committed by any member of youth groups in the process of executing the instructions of the respondent and others.
This is so by virtue of Section 9 of the Criminal Code Law of Ebonyi State which provides thusly – “When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.”
What the respondent directed them to do include to lash the deceased and other youths that had refused to attend the youth meeting 12 strokes of the cane for not attending the meeting voluntarily and forcefully drag them to the meeting. Forcefully dragging or compelling a person to the meeting is obviously a physical assault of a person for the purpose of forcing him to attend the meeting. This is clearly the crime of assault. Lashing a person 12 strokes of cane obviously inflicts grievous bodily harm on him, which is another crime.
So the respondent directed the youths to commit crimes to compel the deceased to attend the meeting he was unwilling to attend.
It is not in dispute that the deceased resisted his being caned and being forcefully taken to the meeting and took flight from his house with the rampaging youths in hot pursuit of him. When they caught up with him, they inflicted multiple matchet cuts on him resulting in his death. In the light of these facts, it is impossible to relieve the respondent of joint responsibility for the murder of Ali Agha by the youths he sent to cane him and force him to attend the youth meeting.
It is immaterial that in committing the offence he counseled them to commit, they killed Ali Agha, clearly a probable consequences of carrying out the counsel of the respondent. The respondent who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.
The Court of Appeal did not fault the decision of the trial Court that forcing the deceased and others to attend the meeting of the youth association is unlawful and unconstitutional. The decision therefore subsists as correct and conclusive and binding.
The conviction of the respondent for the murder of the deceased, even though he did not personally inflict machete cut on the deceased, is justified by Ss. 8 and 9 of the Criminal Code Law, Cap 33, Volume 1 Laws of Ebonyi State which provides that 8. “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. 9.
When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.” This Court has in a long line of cases applied these provisions. InMbang v. The State (2009) LPELR 1852 (SC), this Court held thusly- ” …In Ogbali & Anor v. State (1983) N.S.C.S. 156 at pp. 157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions.
Bello J.S.C (as then was) said: “The only issue worthy of consideration on both appeals, in my view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
“I may point out straightaway that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section.
Firstly, there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; and thirdly that the death of that person was a probable consequence of the prosecution of the unlawful purpose.” In Nwankwoala & Anor v. The State (2006) LPELR-2112 (SC), this Court held thusly- “Where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime.
What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Patrick Ikemson & 7 Ors. V. The State (1989) 3 NWLR (Pt. 110) 455 at 466. Where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating.
The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others also struck. See Ofor v. Queen (1955) 15 WACA 4 at 5; Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 518. And in practical terms, common intention is incapable of positive proof. Its existence can only be inferred from the circumstances disclosed.” Where the common intention to prosecute an unlawful purpose is not expressed by the group, it can be inferred from their joint execution of the unlawful purpose.
In our present case, the task force of the Youth Association clearly stated their common intention to collectively go and physically compel the deceased and others to attend the community youth meeting. The crime committed in the joint execution of an unlawful purpose need not be the common purpose that was commonly intended by the joint action.
But if the crime so committed in the joint execution of the unlawful purpose is a probable consequence of the execution of the unlawful purpose, every participant in the joint execution of the unlawful purpose commits the crime irrespective of their specific role in the joint execution of the unlawful purpose.
It is not in dispute on the evidence of the prosecution and the defence that the Youths Task Force agreed to go out and physically compel the deceased. The respondent and others proceeded in their joint enterprise armed with sticks and machete and invaded the home of the deceased, chanting war songs. None of the members of the youth task force was merely present in the deceased’s house on the fateful day. They were not there by accident or as persons innocently passing by or as persons living there or as friendly visitors.
So their presence there could not be rightly described as a mere presence. They came from the village play ground with the common intention to come to the house of Ali Agha and compel him to attend their meeting.
Instead of going there in a peaceful manner, they invaded the house armed with sticks and machetes, chanting war songs. The trial Court found as a fact that the deceased was killed by the members of the task force youths that invaded his home to force him to attend their meeting and that he died on the spot during that invasion due to the several machetes cuts inflicted on him by the youths task force members,
The trial Court found as a fact that PW3, PW4, PW5 and PW6 who were eyewitnesses of the killing of the deceased by the members of the Youths Task Force that invaded his home gave direct evidence of the death of the deceased during the invasion. PW3, PW4 and PW5 mentioned some of the persons they saw inflict machete cuts on the deceased.
Exhibit Q2, the report of post mortem examination of the deceased’s corpse state that there were 8 multiple cuts on the body corroborating the testimony of PW2, the medical officer that examined the corpse, that- “from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life. From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.
The trial Court found as a fact that – “Page 49: Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that death of the deceased is the unusual consequence of that enterprise. It is therefore clarion and crystal clear that the 1st to the 9th accused person are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased- Ali Agha to his creator”.
In our present case the common intention to carry out that joint enterprise is established by the evidence of their decision to go and compel the other youths including the deceased to attend the meeting and the evidence of their participation in the joint invasion of the deceased’s residence to force him to attend their meeting. By their joint invasion of the home of the deceased to force him to attend their meeting, each of them became responsible for anything done by any member of the group to force the deceased to go and attend their meeting. In Eyorokoromo & Anor vs.
The State (1983) LPELR-1188 (SC), Ubierho vs. The State (2005) 2 SC (Pt. 1) 18, Alarape vs. The State (2001) 2 SC 164, Mohammed vs. The State (1980) 3-4 SC 56 and several other cases this Court has repeatedly held that in a concerted attack to prosecute an unlawful purpose, it is not the law to look for the person who struck the lethal blow.
Everyone who partakes in the attack is equally guilty of the crime committed during prosecution of the unlawful purpose. The question whether each individual participant in the joint invasion had the intention that Ali Agha should be killed or injured during the invasion or process of compelling him to attend the meeting is irrelevant in determining the criminal responsibility of each member of the group for the killing or injury of Ali Agha by their acts to force him to attend their meeting.
The prosecution has no burden to prove that each member of the group intended that Ali Agha should be killed or injured by their actions to force him to attend their meeting. The principle underlying criminal responsibility in cases where a person is accused or alleged to have on his own, singly committed an offence cannot apply to cases where a person is accused of committing a crime that occurred during the joint execution of an unlawful purpose that he and other persons had formed a common intention to prosecute.
What the prosecution must prove to establish the guilt of each member of the group for the killing of Ali Agha, is that the killing was a probable consequence of what the group did to force the deceased to attend their meeting.
Once the evidence establishes that the killing of Ali Agha was a probable result of their actions to force him to attend their meeting, each of them is responsible for killing him, irrespective of who took what specific action amongst them and the individual intention of each of them concerning what should or can result from the actions of each member of the group.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The trial Court in its judgment found thusly- “Consequently the firm view of this Court is that based on the pieces of evidence of PW3, PW, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker. The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple injuries were on the lateral part of the deceased which are used for defence.
The view of this Court that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiahu alone while the other accused persons stood. Even if all the accused persons stood akimbo while Ejike Obiahu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiahu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra).
The further view of this Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v. State (supra), Ejike Obiahu would only be the … which the other accused persons struck. The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise.
Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that the death of the deceased is the unusual consequence of that enterprise. It is therefore clarion and crystal clear that the 1st to the 9th accused persons are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased - Ali Agha to his creator.
Consequently, the finding of this Court that the death of the deceased was caused by the acts of the accused persons. Attention of this Court now swivels to the third ingredient of murder which the prosecution must prove in order to shout eureka. That is, that the act or omission of the accused persons which caused the death of the deceased was intentional with knowledge of death or grievous bodily harm was the probable consequence.
This Court has painstakingly enunciated the evidence of prosecution witnesses to the various accompaniment of exhibits which clearly disclose that multiple injuries were melted on the deceased by the accused persons with the aid of machetes. The only rationale that can stem from the acts of all the accused persons on the uncontradicted documentary and oral evidence before the Court is that the acts of the accused persons which caused death of the deceased were intentional with knowledge that death or grievous bodily harm was its natural or probable consequence.”
Considering the nature of the things done by the invaders during the execution of their unlawful purpose of forcing the deceased to attend their meeting, their killing him was clearly a probable consequence of their execution of the unlawful purpose. They had set out for the execution of that purpose armed with sticks, machetes and axe. They invaded the deceased’s home, commanded him to come out for them to lash him twenty strokes of the cane for refusing to honour their summons for the meeting. When the deceased refused to come out, they rushed into the house to hold him.
The deceased escaped from the house and took flight. They followed him and inflicted several machete cuts on him. PW3, PW4, PW5 and one Uche Alli who tried to rescue the deceased from the youths’ task force members was also inflicted machete cuts.
After inflicting multiple machete cuts on the deceased till he became weak and lifeless, the members of the youth task force left, continued chanting war songs and proceeded to the village square. PW3, PW5 and one Ugochukwu Evo arranged and immediately carried the deceased on a motorcycle to the hospital. The medical doctor immediately examined the deceased and confirmed him dead.
Exhibit Q2, the medical report of the examination of the deceased states that the corpse was received at the mortuary on 18-9-2016 at 1400 hrs (2pm), that the deceased died on 18-9-2016, that the corpse was examined on 25-11-2016 at 11.30 hrs (11.30am) and that the cause of his death was multiple machete cuts and hemorrhagic shock. PW2 the medical doctor that conducted the examination testified that- “from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life.
From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.”
The fact that the task force members invaded the deceased’s home armed with sticks, machetes and axe show that they invaded the house with the intention to inflict violence of any degree for the purpose of overcoming his resistance and force him to attend their meeting. It is clear from the foregoing facts that killing the deceased was a probable consequence of all that they did for the purpose of forcing the deceased to attend their meeting. As this Court held in State v.
Oladimeji (2003) 7 SC 108 “if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary, for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder”.
Since the killing of Ali Agha is a probable consequence of what the respondent and other members of the youth task force did in the joint prosecution of their unlawful purpose, each member of that youth task force is guilty of the murder of Ali Agha, irrespective of which of them inflicted the actual machete cut that killed him.
The law is settled that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is guilty of committing the offence. See Ubierho v. The State (2005) 2 SC (Pt. 1) 18 and Nwankwoala & Anor v. The State (supra).
In the light of the foregoing, the lone issue framed herein for the determination of this appeal is resolved in favour of the appellant.
This appeal has merit. It is hereby allowed. The judgment of the Court of Appeal sitting in Enugu in Appeal No.
CA/E/131C/2018 delivered on 1-8-2019 is hereby set aside. The judgment of the High Court of Ebonyi State at Afikpo, in Charge No. HAF/24C/2017 delivered on 15-10-2018, convicting the respondent for the murder of Ali Agha and sentencing the respondent to death by hanging by the neck is hereby restored and shall take effect accordingly.
MARY UKAEGO PETER-ODILI, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Enugu Division or lower Court or Court below, Coram: Misitura Omodere Bolaji-Yusuf, Joseph Olubunmi Kayode Oyewole JJCA and Monica B. Dongban-Mensen, JCA (as he then was), delivered on 1st August, 2019 which set aside the judgment, conviction and sentence of the High Court of Ebonyi State, sitting at Afikpo on a count of murder contrary to Section 319 (1) of the Criminal Code Laws of Eboyi State of Nigeria, 2009.
The details leading to this appeal are well set out in the lead judgment delivered by my learned brother, Akomaye Agim, JSC, the reasonings thereof, I agree with.
At the hearing on 23/9/2021, learned counsel for the appellant, A.O. Odum Esq adopted the brief of argument filed on 21/11/2019 wherein he distilled two issues for determination, viz:- 1. Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased. 2. Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Grounds 2 and 3).
Learned counsel for the respondent, Roy O. Umahi Nwaeze Esq adopted the brief of argument filed on 18/12/2019 and adopted the issues crafted by the appellant. I shall make use of Issue 2 of the questions raised as it is sufficient in the determination of this appeal.
ISSUE 2 Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. Advancing the arguments in favour of the position of the appellant, learned counsel contended that the three ingredients of the offence of murder were established beyond reasonable doubt at the trial Court and the lower Court was wrong to hold otherwise.
That the defence of alibi put forward by the respondent was not sustainable as the evidence proffered by the prosecution placed him at the scene of crime and at all times material. He cited Agbiti v Nigerian Navy (2011) LPELR-2944 (SC) P.53; Hambe & Anor v. Hueze & Ors (2001) 4 NWLR (pt.703) 372 etc.
That in the proof of conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprises need not be given as all that is necessary to be shown is a meeting of minds. He relied on Oladejo V State (2014) LPELR-22946 (SC) etc.
Learned counsel for the respondent contended by stating that the appellant’s case was full of inconsistencies and material contradictions and was not proved beyond all reasonable doubt and the respondent’s plea of alibi not investigated. He cited Adamu v State (2019) LPELR-46902 (SC), Anekwe v State (2014) 10 NWLR (pt. 1415) 353 at 379; Nnunukwe v The State (2004) All FWLR 201 etc.
That the respondent was entitled to the acquittal as the prosecution failed to prove some of the essential elements or ingredients of the charge. He cited Onuchukwu v The State (1998) 1 SCNJ 36 at 49 etc.
It is now well settled in law that the burden of proof is on the prosecution who must prove its case beyond reasonable doubt.
This concept is embodied in the Evidence Act, 2011 as amended and it would help to quote it thus:- “135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to 139 of this Act, on a person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant”.
It is trite that in order to discharge the burden of proof in a criminal case the prosecution must prove the ingredients of the offence with which the accused is charged beyond reasonable doubt. This well-established principle of law was reiterated by this apex Court in NWATURUOCHA V. STATE (2011) LPELR- 8119(SC) where it was held as follows:- “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge.
While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify at the proceedings- Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged, Amadi v. The State (1993) 8 NWLR pt. 314 pg. 644 at pg. 668; Alor v The State (1997) 4 NWLR pt. 501 pg. 511.”
I agree with learned counsel for the appellant that the law is also firmly established that a conviction for murder would be sustained if the prosecution is able to prove the ingredients of murder beyond reasonable doubt. This principle of law was reiterated by this Court in AKINLOLU V. STATE (2015) LPELR-25986. To establish the offence of murder, the prosecution must prove beyond reasonable doubt that the deceased died.
They must also prove the cause of death which cause must be traceable to an act or omission of the accused person and they must prove that the said act or omission of the accused person was intentional knowing that death or grievous bodily harm was a consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270. See also Kada v State (1991) 22 NSCC (pt. ii) p. 592; State v. Danjummai(1996) 8 NWLR (pt. 469) p.660.”
From the record, there is no dispute the lower Court held that the first ingredient of the offence of murder has been established without any doubt, as the fact that the deceased had died is not in contention from the identification of the body of the deceased by his brother, the pictures taken and the medical examination carried out by the medical doctor.
In respect of the other ingredients of the offence of murder, the Court below found that the defence of alibi availed the respondent because the evidence of the prosecution witnesses did not place the respondent at the scene of crime and the alibi raised at the earliest opportunity. The Court below stated that the failure to investigate the alibi was fatal to the prosecution’s case.
The lower Court in coming to the above conclusion ignored the fact that the Respondent never set up alibi as defence to the charge in the true sense of the defence, either in his extra-judicial statement or in his viva voce evidence at the trial Court. It was his counsel who glossed over the issue in his final written address for the accused persons, he was particular in making the case for the 5th, 6th and 9th accused person. He never made alibi an issue in defence of the Respondent.
Furthermore, considering the time and space the lower Court expended in dealing with the issue of alibi, one would think that it was an issue for the determination raised by the Respondent at the lower Court. But a cursory look at the briefs and submissions of Respondent’s counsel at the lower Court would reveal that it was never raised nor was it addressed. The only conclusion therefore is that the lower Court raised the issue suo motu.
This Court has had the opportunity of considering the issue of whether an appellate Court can suo motu raise issues at the judgment stage which the parties did not raise without stepping into the arena of conflict in a plethora of cases and I shall refer to a few. In AGBITI v. NIGERIAN NAVY (2011) LPELR-2944(SC) per Fabiyi, J.S.C P.53, the Court held:- “The Court of Appeal while its judgment, suo motu, struck out grounds of appeal and related issues touching on jurisdiction without calling on parties to address it.
An appellate Court cannot suo motu raise issues at the judgment stage which the parties did not raise without the perilous risk of stepping into the arena of conflict. That was what the Court below wrongly did. Such cannot be condoned See Hambe v. Hueze (2001) 2 SC 26 at 39; (2001) 4 NWLR (pt. 703) 372 at 388; Akintola v. Solano (1986) 2 NWLR (pt. 24) 598; Victino Fixed Odds Ltd. V Joseph Ojo & Ors (2010) SC (Pt. 1).” Also inHAMBE & ANOR V. HUEZE & ORS (2001) 4 NWLR (PT. 703) P. 372, Per OGUNDARE, J.S.S (P.12, paras.
A-F) the Court held: “…It was the Court itself that raised those points in its judgment and decided the fate of the appeal on them and this without inviting the parties to address it on the point I think this is wrong. This Court has consistently frowned on this practices, In Ogiamien v. Ogiamien (1967) NSCC 190, 192, (1967) NMLR 245, 248; Sir Ademola CJN observed: “We note also that these objections were never raised by counsel and that they were formulated by the learned Judge himself in his judgment.
No opportunity was given to counsel to argue the points, and throughout the various appeals on the case (Exhibit D), the Constitution of the Court was never challenged. This Court has pointed out on several occasions that it is wrong for a Judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.” Again Onwunalu & Ors v.
Osademe (1971) ANLR 15 17, Coker JSC delivering the judgment of this Court observed: “As a general rule this Court has always regarded with disfavor the practice of a Court giving a decision on a point not argued before it. ”
From the record, it is seen clearly that there was positive evidence from PW3 which fixed the respondent at the scene of crime as one of the masterminds of the homicide. The respondent’s assertion that he was with the Chairman (6th accused) at the village square at the material time is not borne out of the evidence.
The finding by the lower Court at page 495 of the Records that the Respondent furnished the Appellant with the information of his whereabouts which was left to the Respondents to duly investigate is perverse. This is so because the above statement and oral testimony are bereft of any precision with respect to where he was, persons that he was with and what he was doing at the material time. There was therefore no lapse for the Appellant to explain. See ONUCHUKWU V. STATE (1998) 4 NWLR (PT. 547) 32. In IKUMONIHAN v.
STATE (2018) LPELR-44362(SC) per AUGIE J.S.C (Pp. 35-40), the Supreme Court stated that: “…to be worthy of investigation, the defence of alibi must be precise and specific in terms of the place that the Accused was and person(s) that he was with, and possibly what he was doing at the material time – see Ochemaje v. State (2008) 15 NWLR (Pt 1109) 57, wherein Tobi JSC said: it is not the law that the police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the police.
The Accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law… Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witness or under cross-examination of the accused or his witness. A trial Judge will not take seriously a defence of alibi which is porous and cosmetic, (underlining for emphasis) It was further held that in ADEBIYI V.
STATE (2016) 8 NWLR (PT. 1515) 456, this Court held that the defence of alibi is not readily conceded to an Accused Person because, when properly established, it has the far-reaching effect of exculpating him from complete criminal responsibility. Nweze JSC further stated as follows: “To be entitled to this beneficent effect; such an Accused must raise it at the earliest opportunity, which would, preferably, be in his extra-judicial statement.
This is to offer the Police an opportunity either to confirm or confute its availability to the Accused Person – Above all, the said defence must be unequivocal as to the particulars of the Accused Person’s whereabouts and those present with him, It is only where such an Accused Person raised the defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it … and to disprove same …” To be clear, there are instances where a failure to investigate an alibi may cast doubt on the reliability of the case for the prosecution, but in a case as this, where the Respondent was identified by three eye witnesses, there was a straight issue of credibility and I posit that the lower Court’s findings of facts were unreasonable or cannot be supported having regard to the evidence before the Court.
If the alibi had been true, it would have been open to the Respondent to call witnesses in support of them and he did not do so. An accused person is perfectly and always at liberty to call his witnesses to establish his alibi. It is settled law that an accused has a duty to lead credible evidence in support of the defence raised. See JOSHUA V STATE (2000) 3 NWLR (PT. 658) 102. In REV. KING v. STATE (2016) LPELR-40046 (SC) Per Ngwuta JSC, (Pp. 42-43), held that:- “The burden of proof of alibi is on the accused person. See Gachi & Anor v The State (1965) NMLR 333 at 335; Nwosisi v.
The State (1976) 6 SC 109. though proof is on the balance of probabilities. See Ozuki v. The State (1988) 2 NSCC 75. For an accused person to successfully plead alibi, the plea must be unequivocal, he must state the time, the place and the people who were with him at the time and place and he must raise the plea during investigation and not at the trial, so that the veracity of this statement to the Police to that effect can be verified. See Alami v State (1988) 2 NSCC 271; Obakpolo v. State (1991) 1 NSCC 271; Njovens v. The State (1973) NSCC 257 at 258.
The lower Court was therefore wrong when it posited that the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi. That cannot be the law in view of what is on ground.
The Respondent in his statement to the police at SARS Abakaliki merely stated that “We the entire youths members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”. The other surrounding facts as revealed by him in the statement make it improbable that he did not go with them, because he did not state why as a Vice-Chairman he did not go with the other youths after stating that it was a unanimous resolve of the Youths to go there after the deceased had disobeyed the task force.
As one of the Youth leaders, what is believable is that together with his Chairman, they led the entire youths to confront the deceased for daring to say that he has formed his own group. He did not also state what he was doing at the village square while the entire youths moved to confront the deceased who had just challenged them.
It would have amounted to a wild goose chase to expect the police to investigate the purported alibi in any other way beyond the evidence already received from the Respondent and other witnesses who fixed the Respondent to the crime scene. This is particularly so when the Respondent did not mention those who saw him or were with him at village square at the material time, so there was nobody the police would have questioned to authenticate the veracity of the alibi. The defence in my view is a hollow afterthought.
In the case of HALADU v. STATE (2015) LPELR-26002 (CA) per Akeju JCA, (Pp. 28-29), it was held: “…where however there is sufficient evidence to fix the appellant or accused person to the scene of crime at the time of its commission, the alibi is demolished and is not worthy of any investigation by police. See NJOVENS V. STATE (1973) 55 C 17, YANOR V. STATE (1965) 1 ALL NLR 193; CHEMWON V. THE STATE (1986) 2 NWLR (Pt 22) 33.”
The PW3, PW4 and PW5 in the course of their viva voce evidence identified the 9 accused persons, the Respondent inclusive as those who come to the residence of the deceased and killed him. PW3 and PW5 in their extra-judicial statement at the SARS office, Abakaliki at the earliest opportunity did mention the names of the youths that came and attacked the deceased in his house. They unequivocally mentioned that the Respondent was part of those who masterminded and supervised the killing of the deceased.
The Respondent in his viva voce admitted that he responded to the traditional gong calling the youths for the meeting of 18/9/2016 and gives the impression by his extra-judicial statement that he was part of those who supervised the murder of the deceased. Interestingly also, the lower Court made a finding of fact that testimony of PW5 shows that the Respondent was present at the scene of the crime and nothing more. See page 497 of the Records.
It is therefore surprising that the lower Court took the trajectory it did, by holding that there was no evidence adduced by the Appellant placing the Respondent at the scene of crime.
The lower Court impugned the evidence of PW5 in concluding that the Respondent did not participate in the alleged crime. The lower Court in making this finding concluded that the evidence of PW5 is not credible as it is wrought with inconsistency and that going by the mental state of PW5 his evidence was unreliable. The records do not support the finding that the mental state of the PW5 made reliance on his testimony risky. He never testified on oath that his oral evidence in Court was affected by his mental status.
The only allusion to his mental state of health was in relation to his extra-judicial statement which he testified that the facts were not all very fresh in his memory at that time due to the head injury he suffered. Even at that, there is no material contradiction between what he said at the investigation stage via his extra-judicial statement and what he said at the trial. More so, a person is not a competent witness as regards his own mental status. See Makosa v. The State (1969) 1 All NLR 363 and Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565.
But where there is independent relevant admissible evidence confirmative of his mental status, the evidence given by him may be given some weight. See MOHAMMED V STATE (1997) LPELR-1902 (SC).
On the purported contradiction in PW5’s extra-judicial statement as against his testimony in Court as highlighted by the lower Court which relates to the level of participation of one Igwe Oko and Inspr Egwu Oku in the incident which led to the death of the deceased, I do not see that these alleged inconsistencies are material in any particular. They do not relate to the Respondent and anything the Respondent did or failed to do and so cannot help his case.
Even if they were material contradictions, PW5 satisfactorily explained the seeming inconsistencies in both evidence and it is clear that the evidence of PW5 is believable and direct eyewitness evidence. His explanation is consistent with the evidence on record. What is material depends on the facts of each case, it must relate to the ingredients of the charge and relevant to a fact in issue to be material. For instance, in the case of IKEMSON & ORS V.
STATE (1989) LPELR-1473 (SC) it was held: “Contradiction should be on a material issue to amount to material contradiction- Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & Anor v. The State (1974) 9 S.C. 1 at p. 20 arises only when there are material contradictions.” See Dibie V, The State (2007) All FWLR Pt. 363 p.83.
The lower Court also in resolving against the Appellant held that it is curious that the Appellant did not call one Uche Ali, whom the Court considered a vital witness, to testify. This finding of the lower Court is perverse and not borne out of the records. The question to answer is, who is a vital witness? Is Uche Ali a vital, witness? Are PW3, PW4 and PW5 who testified not vital’ witnesses? According to the Court in the case of ABDULLAHI V STATE (2018) LPELR-44455 (CA), it was held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“A vital witness is an eyewitness to the commission of a crime and/or a witness who can give very truthful and relevant evidence that would resolve the case one way or the other. In other words, a witness who gives evidence on what is logical and true is a vital witness. In the instant case, the mother of the second accused person not being the only neighbor of the appellant was not a vital witness capable of giving logical and true evidence. At any rate, the prosecution is not bound to call any and every person who was present at the locus criminis.
It is bound to call only those witnesses who would give relevant evidence in proof of its case. See IZIREN V STATE (1995) 9 B NWLR (PT. 420) 385.”
The evidence shows that Uche Ali not being an eye witness to the murder of the deceased, is not a vital witness and the Appellant was right in not calling him as a witness. From Uche Ali’s extra-judicial statement, he only arrived at the scene of crime when the deed had been done. He only met the deceased in a pool of blood and he was only informed about the role Ejike played which amounts to hearsay. Furthermore, the PW3, PW4 and PW5 were direct eyewitnesses to the crime and were called to testify.
Having testified to what they witnessed, it was not necessary and the Appellant was not bound to call Uche Ali as a witness. The law is that in the discharge of its burden of proof, the prosecution is not required to call every available, eye or particular witness. All that the law requires is that the prosecution should call or adduce evidence which proves the charge against the accused person beyond reasonable doubt. The prosecution therefore has the discretion to call only material witnesses whose evidence is sufficient to prove the charge as required by law. See OGBODU v.
STATE (1986) 5 NWLR 294; AKPAN v. STATE (1992) 6 NWLR (248) 439; Udofia V. State (1981) 11-12 SC, 49 AT 63; INUSA v. STATE (1982) 13 NSCC 70 at 82. In USEN V STATE (2012) LPELR-20063 (CA). It was held that the law does not impose on the prosecution, the duty or function of both the prosecution and the defence and so it is not even bound to call every material witness but if requested such a witness must be tendered for cross-examination.
If the Respondent considered the evidence of Uche Ali to be material, it could have called him to testify, which it failed to do, such failure should not be counted against the Appellant.
The lower Court also stressed that conspiracy was not proved from the extra-judicial statement of the PW5 since it was not proved that a physical meeting was held or that PW5 attended such meeting to know what was discussed thereat. The extra-judicial statement of the Respondent himself corroborated by other pieces of evidence is conclusive proof of the fact that a meeting was held where an unlawful purpose was hatched by the accused persons with the Respondent as one of the leaders.
The Respondent at the earliest time when his memory was still fresh told the police, “I am the Vice Chairman of Amorie Youth Association … The taskforce members are empowered to use cane in the course of their duties.
It is equally the duty of the task force members to… force members of the youth who refused to come for meetings… scheduled a meeting to be held at the village square… At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come… After sometime, they came back and reported that when they got to them, they met one Ali Agha (deceased) who told them … that they have formed their own group we the entire youth members then resolved to go and bring the said Ali Agha and his group to the meeting…” The Respondent knew the natural result of such confrontation with the deceased who has challenged their authority.
Resolving in the manner as they did to compel full-grown adults to attend a meeting against their wish and against their rights to freedom of association would naturally lead to a fracas which was capable of leading to grievous bodily harm or death. The Respondent cannot deny that he did not know that such would result from such confrontation.
To prove conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprise need not be given. All that need to be shown is a meeting of minds. In OLADEJO V STATE (2014) LPELR-22946, Conspiracy was defined as “an offence that is often deduced or inferred from the acts of the parties thereto which are directed towards the realization of their common or mutual purpose or agreement. See NJOVENS v. STATE (1973) 5 SC 17; DABOH v. STATE (1977) 5 SC 197; ERIM v. STATE (1994) 5 NWLR (Pt.346) 522; ODUNEYE v. STATE (2001) 2 NWLR (Pt. 697) 311 AT 332-333, and BALOGUN v.
A-G OGUN STATE (2001) 30 WRN 123 AT 138; (2001) 14 NWLR (Pt. 733) 331 AT 353. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. It is enough for the prosecution to establish that the appellant and the accused persons had a common objective aimed at committing a crime, it suffices. The offence of conspiracy is rarely proved by direct evidence, but by circumstantial evidence and inferences from certain proved facts.
A meeting of the minds to do or cause to be done an illegal act or a legal act by illegal means, is all is required to prove conspiracy.” In Osareren v FRN (2018) 10 NWLR (pt. 1627) 221, the Court held thus:- “Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what.
Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.”
Placing the essential ingredients or elements of the offence of conspiracy in context to the facts of the present case where the Respondent was charged with the offence of murder alongside the other accused persons. The Respondent admitted that he was a vice Chairman of the irate youths and that “we the entire youth members” (which includes him) resolved to go and bring Ali Agha (the deceased) and his group. It was in the execution of that unlawful resolution that the deceased died. This was stated in his extra-judicial statement, Exhibit “K”.
While PW3 identified the Respondent as one of the masterminds of the murder of the deceased, PW5 testified that the Respondent was there when the crime was committed. Clearly, the agreement and the meeting of the minds were established and the Respondent cannot claim not to be involved in the conspiracy because there was no mention of the specific role he played in the actual murder of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action.
The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in the killing of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action.
The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in killing the deceased. The evidence of PW3 that the Respondent was a mastermind of the killing is not a blanket statement. As a Vice Chairman, he was a supervisor of the murderous action which led to the death of the deceased. That much can be gleaned from his own statement.
I am at one with the trial Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him, on the authority of NWANKWOALA V STATE (2006) 14 NWLR (PT. 1000) 663, Ejike Obiahu would only be the hand with which the other accused persons struck. Interestingly, the lower Court in APPEAL NO. CA/E/130C/2018 actually acknowledged that the conviction of the Accused persons was based on Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State without considering the true intent and purport of the said provisions.
The said sections provide that: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
When a person counsels another to commit an offence, and an offence is actually committed after such Counsel by the person to whom it is given, it is immaterial whether the offence actually committed was the same as that counseled or in a different way, provided in either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed it by himself. ” The Court had given a solid interpretation of Section 8 of the Criminal Code dealing with common intentions which is in pari materia with the provisions of Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State in MBANG V.
THE STATE (2009) LPELR-1852 (SC) AT 20-21 PARAS E-E, thus:- “…in Ogbali & Anor v. State (1983) N.S.C.C. 156 at pp.157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions.
Bello J.S.C. (as he then was) said: “The only issue worthy of consideration on both appeals, in view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” I may point out straight away that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section.
Firstly, there must be evidence that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; thirdly that the death of that person was probable consequence or the prosecution of the unlawful purpose. ”
It is also in evidence that Amorie 0zizza Youths meeting had been banned from operating in the community due to their nefarious and notorious modus operandi which was the status quo until this particular meeting was called at the instance of an individual whom the deceased defeated in a political contest for the councillorship seat to actualize his plans of killing the deceased. The Youths in the course of executing the unlawful instruction went with machetes and cutlasses and were chanting war songs.
If their intention was not to kill or cause grievous bodily harm why did they proceed with such dangerous weapons?
The record of Court shows the reverse of what the lower Court held. From the totality of the evidence led, the Appellant proved beyond reasonable doubt that the Respondent with his co-accused persons were at the scene of crime after having formed a common intention to prosecute an unlawful purpose of using extreme violence to force the deceased to attend a meeting that he did not intend to attend and in conjunction with one another, and in the prosecution of such purpose the offence of murder was committed.
In the circumstance, death of the deceased was the probable consequence of the prosecution of such purpose as the Respondent and his co-accused persons used machetes and cutlasses on the deceased to force him to attend a meeting, the lower Court was therefore under a legal duty to find the Respondent and each of this cohorts to have committed the offence of murder.
It has now become an elementary proposition of the criminal law that everyone is taken to intend the natural and probable consequences of his or her act. The consequence of an act is said to be probable if a reasonable man would consider its occurrence to naturally flow and be the normal effect of the act. See Afolabi v State (2016) LPELR-40300 (SC) P.19; Shazali v State (1988) 12 SC (pt. 11) 58; R v Dim 14 WACA 154 at 155; Yakubu v The State (1980) 3 – 4 SC 84 at 98.
From the above foregoing, it is abundantly clear that the Appellant herein proved its case beyond reasonable doubt as it has demonstrably proved all the ingredients of murder beyond reasonable doubt. The ingredients for murder which the Appellant established in the present case are: (a) That a person died; (b) That the death of that person was caused by the Respondent; (c) it was the Respondent’s act which caused the deceased’s death and it was done with the intention of causing bodily harm.
And; (d) the Respondent knew that death or grievous bodily harm would be a probable, not likely consequence of this act.
The issues are resolved against the respondent and in favour of the appellant whose appeal is meritorious. I allow the appeal and abide by the consequential orders made.
EJEMBI EKO, J.S.C.: The decision just delivered in this appeal by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, represents my views in the appeal. I hereby endorse and adopt the judgment.
The decision of the Court of Appeal appealed, not properly evaluating and considering the totality of the prosecution’s case, particularly the evidence of the PW.3, PW.4 and PW.5 – eye witnesses whose evidence not only fixed the respondent to the locus criminis but also fixed him thereat to the active roles resulting in the brutal killing of the deceased, was clearly perverse and unreasonable. The respondent’s testimony or defence evidence offered no effective rebuttal of the evidence of these three eye witnesses.
It did not cast any reasonable doubt on the totality of the prosecution’s evidence to have warranted the lower Court resolving the bogus benefit of doubt in favour of the respondent.
On alibi, as a defence, I agree with the lower Court that – “The defence, where raised presupposes that the accused person was somewhere else other than the crime scene at the time the crime was created.”
But that is how far I can go with the lower Court on this. It was, inspite of the credible and undiscedited evidence of the PW.3, PW.4 and PW.5 fixing the respondent to both the scene of crime and the alleged crime, most perverse and preposterous of the lower Court to hold that “there is no evidence adduced by the prosecution placing the respondent at the scene of crime”. There was. The evidence was abundant and overwhelming.
An accused person who pleads alibi has a duty, under Section 36 (1) of the Constitution, to give his prosecutor an opportunity to be heard in rebuttal on the plea. That is what the principle of audi alteram partem is all about. It works both sides in the administration of justice. Neither party shall deny the other that basic fundamental right to fair hearing. A defendant pleading alibi owes the prosecutor a duty not to deny the latter that basic constitutional right. Putting the prosecutor on notice of that plea gives him the opportunity and liberty to investigate the plea of alibi.
The lower Court appears to have, erroneously, shifted the evidential burden, the accused person has to cast reasonable doubt on the case presented against him by the prosecution. It is not correct, in law, as the lower Court held that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi”. The reasoning is completely bereft of any logic. Firstly, what is alleged without proof can be denied without proof.
Once the defendant, who raised the defence, fails to establish it then it does not behove or obligate the prosecution to rebut it. Secondly, the Evidence Act 2011, in Sections 131 and 132 provides that whoever desires the Court to give judgment to him as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; and that the burden of proof lies on that person who will fail if no evidence at all were called on either side.
Section 136 of the same Evidence Act, further provides that the party who pleads a particular fact has the burden of providing the proof as to the existence of that particular fact.
Accordingly, I allow the appeal. The decision of the lower Court No. CA/E/132C/2018 delivered on 1st August, 2019, unreasonable and perverse as it is, shall be and is hereby set aside. The decision and orders of the trial High Court in charge No. HAF/24C/2017 delivered on 15th October, 2018 are hereby affirmed and restored. Appeal allowed.
MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment delivered by my learned brother, E. A. Agim, JSC, in draft, and agree completely that the appeal is meritorious for the sound reasons adumbrated therein, which I adopt. The appeal is allowed by me too in term of the lead judgment.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice EA Agim, JSC, has accorded me the opportunity of reading before now, the judgment just delivered by His lordship. I agree with the reasoning reached therein, to the conclusive effect that the present appeal is meritorious, thus ought to be allowed.
Hence, the appeal is accordingly hereby allowed by me. I abide by the consequential orders thereby setting aside the judgment of the Court below delivered on August 1st, 2019 in Appeal No. CA/E/131C/and restoring the judgment of the trial High Court of Ebonyi State delivered on October 5th, 2018 in charge No. HAF/24C/2017.
Appearances
RUFUS v. STATE
On Friday, February 12, 2021
SC.557/2014Before Their Lordships
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
Judgment
ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal sitting at Ado Ekiti, referred to as the lower Court, delivered on the 31st day of March 2014.
The Appellant was charged at the High Court of Ekiti State alongside one other, on a three count charge of conspiracy, armed robbery and willful damage to property under the Robbery and Fire Arms Act Cap 398 Vol XXII Laws of the Federation of Nigeria 1990 as amended.
The Appellant pleaded not guilty to the charge, which are hereunder reproduced as follows: COUNT 1 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court did conspire with each another to commit armed robbery and thereby committed an offence contrary to and punishable under Section 5b of the Robbery and Firearms Special Provisions Act Cap 398 vol XXII Laws of the Federation of Nigeria 1990 as amended.
COUNT 2 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and other dangerous weapon did rob one pastor Ajayi Olayinka 11,000 naira [eleven thousand naira] and one Nokia handset and thereby committed an offence punishable under Section one Section 2a of Robbery and Firearms Special Provision Act, Cap 398 vol XXII, Laws of the Federation of Nigeria 1990 as amended.
COUNT 3 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and in the process of robbing did willfully damage one Mazda 626 millennium with registration number LG49TUN property of Otun local government and thereby committed an offence contrary to and punishable under Section 481 of the Criminal Laws of Ondo State 1978 as applicable to Ekiti state.
As highlighted earlier, each of the two accused persons pleaded not guilty to the count and the matter proceeded to trial. The Respondent called in 6 witnesses and tendered 12 exhibits namely Exhibits A, B, C, C1, D, D1, E, E1, F, F1, G, and G1 in pages 66-68 of the Record. While the Respondent called in its 5th witness, the office of the Attorney General of Ekiti State substituted the charge with no objection from the accused persons.
The substituted charge reads as follows: COUNT 1 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did conspire together to commit felony to wit; armed robbery and thereby committed an offence contrary to Section 6[b] of the Robbery and Firearms [Special Provisions] Act Cap R11, Laws of the Federation of Nigeria 2004. COUNT 2 That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September, 2008 at Otun-Ekiti, Ekiti State of Nigeria while armed with offensive weapons to wit: cutlass and knife robbed one Mrs.
Ajayi Kofoworola of the sum of One Thousand Five Hundred Naira [N1,500] and thereby committed on offence contrary to Section 1[2] [a] of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.
COUNT 3 That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did willfully damage one Mazda 626 millennium car with Registration Number LG 49 TUN, official car of one Honourable Ajayi Olayinka and thereby committed an offence contrary to Section 451 of the Criminal Code volume II Cap 30 Laws of Ondo State 1978 as applicable to Ekiti State.
Immediately after substitution, the trial continued and PW6 gave his evidence. See pages 65 to 69 of the Record. The Appellant and the other accused person each testified solely in his defense and called no other witness.
At the end of trial, the trial Court convicted the accused persons as charged and they were sentenced to life imprisonment and 6 months imprisonment.
At Page 97 of the Record, the trial Court, per ADEYEYE, J. held as follows: “I therefore find each of the accused persons guilty of conspiracy, attempted robbery and unlawful damage. Each accused is accordingly convicted… Each of the accused persons is sentenced to life imprisonment in respect of the charge of conspiracy and attempted robbery. Each of the accused persons is sentenced to six months imprisonment in respect of Count 3 of the charge, the sentences shall run concurrently.”
Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal Ado-Ekiti Division. The Court below, in a unanimous decision, dismissed the appeal. At pages 210 to 212, the Court of Appeal held inter alia thus: I have painstakingly perused the record of appeal and the evidence contained therein and more particularly the testimonies of PW2, PW3 and PW5 coupled with the submission of both learned counsels for the parties thereon.
In this vein, I have no doubt that the findings made by the learned trial Judge in this regard were borne out of pieces of evidence contained in the record of appeal Indeed I am unable to detect any segment or vestige of doubt from the evidence on the printed record placed before us.
Accordingly, in the absence of compelling, showing, indicating and incorrect evaluation/erroneous appraisal of facts and wrong conclusions, I am thus obliged to show utmost restraint and refuse to accede to any invitation or succumb to any temptation towards interfering with duly considered findings as amply demonstrated above made by the learned trial Judge in the instant case.
After the giving of exhaustive considerations to the evidence of requisite witnesses placed before him…in the premise of all that, I have stated above and having resolved all issues adopted for the termination in this appeal against the appellant, I have no valid reason to upturn or jettison the conviction of and sentence imposed on the appellant by the earned trial Judge in this case. The appeal is devoid of any positivity, it is accordingly dismissed by me, and the judgment of the trial Court is affirmed.
The Appellant, still dissatisfied, filed an appeal to this Court via a Notice of Appeal filed on the 6th day of June 2014. The said Notice of Appeal contains seven grounds.
In accordance with the practice and accepted procedures of the Supreme Court, parties filed and exchanged briefs. Counsel to the Appellant Chief R.O BALOGUN filed his brief on the 23rd day of March 2016 while counsel to the Respondent, the Honourable Attorney General of Ekiti State OLAWALE FAPOHUNDA Esq. settled the Respondent’s brief on the 25th day of November 2019.
In the Appellant’s brief of argument, the following three issues were distilled for this Court’s determination. They are: 1. Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. ExWing Commander James. 2.
Whether the Court of Appeal was not wrong when their Lordships held that the defence of aibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing. 3.
Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.
For the Respondent, three issues were also formulated for determination. They read as follows: 1. Whether the Court of Appeal was right in upholding the decision of the trial Court in convicting and sentencing the Appellant for the offence of conspiracy, attempted armed robbery and wilful and unlawful damage based on the substituted charge No. HAD/29C/2012, filed on 23/7/2012 without commencing the trial de novo? 2. Whether the defence of alibi raised by the Appellant can exculpate him in the instant case? 3.
Whether the identity of the Appellant as a robber was established by the Respondent and thus proved the case beyond reasonable doubt against him?
The three issues raised by Counsel on both sides are the same in purport, though differently couched. The issues as formulated by the Appellant are adopted in the determination of this appeal. Issues two and three are taken together.
ISSUE ONE Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. Ex-Wing Commander James.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It is submitted for the Appellant that the Respondent having substituted the original charge upon which the Appellant was arraigned and the charge struck out, the charge ceases to exist. According to learned counsel for the Appellant, the plea of the Appellant, having been taken and hearing commenced, substitution of the charge cannot be validly done.
It is his view that all five witnesses called before the charge was substituted should be discountenanced by this Court and the matter ought to have commenced de novo on the new charge.
Learned counsel for the Appellant invited this Court’s attention to pages 59-61 of the Record, which clearly captured what transpired on the 3rd day of October, 2012, when the Respondent made an oral application to withdraw the original charge and substituted it with the new charge.
It is his opinion that the trial Court did not make nor grant any order for amendment of the original charge, since the Respondent never prayed for such an order in accordance with Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State. According to him, the Respondent only made an oral application for the substitution of the original charge, with a new one.
Learned counsel for the Appellant posited that the provisions of Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State relied upon by the trial Court are not relevant and ought not to have been applied. His view is that Section 163 cannot be read in isolation, but must be read in concert with Sections 162,164 and 165 of the Criminal Procedure Law, supra. He relied on the case of PRINCE v. STATE (2002) 12 S.C (PT 1) 144-145
It is the view of learned counsel for the Appellant that the cases of F.R.N v. ADEWUNMI and NIGERIAN AIR FORCE v EX-WING COMMANDER L.D JAMES (2002) 18 NWLR (Pt 798) 295-332 relied upon by the trial Court, and affirmed by the Court below, are not apposite and are distinguishable from the instant case.
He urged this Court to hold that the evidence and testimonies of PW1-PW5, that were called on the basis of the original charge ought to be struck out and discountenanced; and resolve this issue in favour of the Appellant.
In response to the above, it is the submission of learned counsel for the Respondent that Section 163 of the Criminal Procedure Law of Ekiti State which is im pari materia with Sections 154 and 155 of the Ekiti State Administration of Criminal Justice Law, 2014, empowers the Court to alter, amend, or add any charge in any criminal proceedings before it. He argued that the amendment may be in the form of addition, deletion, or even complete substitution and placed reliance on these cases: UKET v. FRN (2008) ALL FWLR (PT 411) 923; NIGERIA AIR FORCE v.
JAMES (2003) FWLR (PT 143) 257 STATE v OLATUNJI (2003) FWLR (Pt 155).
Learned counsel for the Respondent posited that the Appellant was duly represented in Court when the original charge was substituted and he did not object to the substitution.
He posited that the trial of an accused person cannot be vitiated on grounds of irregularity, except it occasioned a miscarriage of justice, which was not the case, in the instant appeal. He commended this Court to the following cases: AKPA V THE STATE (2008) ALL FWLR (PT 420) 644, UDOSEN V THE STATE (2007) ALL FWLR (Pt 356) 669.
This Court is urged to discountenance the arguments proffered on behalf of the Appellant on this issue, and resolve same against him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Perhaps it is apt to stress here that learned counsel on both sides are ad idem that the Respondent can amend, alter, or substitute a charge. What is in issue here is the effect of such alteration on the Appellant’s case.
It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused. The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof.
The provisions of the Section are as follows:- “(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.” Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential.
Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v.
STATE (1995) LPELR 451 SC. Relating the above quoted authorities to the case at hand, the contention of the Appellant herein is that the Respondent, having withdrawn the original charge upon which the Appellant was arraigned and the original charge struck out, the charge against the Appellant ceases to exist and the trial of the Appellant ought to be started de novo, based on the new charge, and the evidence of the five witnesses taken and evidence given prior to the substitution ought to be struck out alongside the original charge.
I must straight away state that this position taken by learned counsel for the Appellant, does not represent the law, as quoted above. In the case of NIGERIAN AIR FORCE v. EX WING COMMANDER LD JAMES (SUPRA) this Court had this to say; Therefore substitution will have the same meaning and effect with alteration and according to Section 164 of the said act, where a charge or count is altered, all that is required to be done is to read the new charge to the accused and record his/her plea there too. The proceedings are deemed to be continued and not disturbed as a result of the alteration.
In OGUDO v. THE STATE (2011) LPELR 860 SC, this Court gave the procedure to be taken when a charge is amended or substituted as follows: The proper procedure to take when a charge is amended is for the Court to read and explain to the accused every allegation or addition to the charge and to call upon the accused to make a fresh plea and to say whether he was ready to be tried on the amended charge and/or to recall all witnesses who may have given evidence and to ask the prosecution and accused if they wish to examine or cross-examine them.
I have carefully read the proceedings of the trial Court on the 3rd day of October 2012. The plea of the Appellant was made after the substituted charge had been read and explained to him (Appellant) in English and Yoruba. It was not the case of the Appellant that he did not understand Yoruba or that the substituted charge was not read and explained to him in Yoruba and English. Above all, the Appellant was represented by a learned counsel who appeared for him at the material time. Counsel for the Appellant C.O.
Omokhafe appeared on behalf of the Appellant and raised no objection to the substitution of the charge. The substituted charge was read to the Appellant who pleaded not guilty. The learned trial Judge gave direction for the matter to proceed. The Appellant did not make any application either by himself or his counsel to recall any of the prosecution’s witness. The appropriate action to be taken at the trial Court was for the matter to proceed which the learned trial Judge did.
It must be noted that the real purpose of the provisions of Sections 162, 163, 164, 165 and any other Sections of the Criminal Procedure Act/Law relating to taking of plea of an accused on a charge or amended/substituted charge is to enable the accused to understand the nature of the charge or amended or substituted charge preferred against him. That was the fundamental or essential requirement or thing. If there is no miscarriage of justice, there is a presumption that the trial of the Appellant was regular.
It should be noted, in the present connection, that while Sections 164 and 165 of the Criminal Procedure Law are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163, it is clearly never the intention of the Act/Law that these Sections should provide an accused with a gratuitous escape route to freedom in the face of overwhelming evidence.
In view of the foregoing, I find no merit in the Appellant’s submission on this issue and same resolved against him.
ISSUE TWO Whether the Court of Appeal was not wrong when their Lordships held that the defence of alibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.
ISSUE THREE Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt. It is the argument of learned counsel for the Appellant that the Appellant promptly raised the defence of alibi upon his arrest, in his extra-judicial statement.
He invited this Court’s attention to Exhibit A, at page 66 of the Record, and submitted that the Appellant’s evidence that he was at his house on the 29th of September 2008, the date of the incident, was not discredited under cross-examination.
Learned counsel for the Appellant opined that the decision of the two lower Courts, that there was overwhelming evidence which fixed the Appellant to the scene of the crime, and therefore there was no need to investigate the alibi, occasioned a miscarriage of justice.
He contended that the evidence of PW1 and PW4 did not sufficiently pin the Appellant to the scene of the offence. According to him, having regard to the time the incident occurred, coupled with the fact that there was no light, (the incident having purportedly occurred at about 1.00 a.m. – 2.00 a.m.), it is absolutely impossible for the witness to recognise the Appellant by mere flashing his torchlight outside.
Finally he submitted that in the absence of any credible evidence adduced to discredit the alibi, the Appellant would inadvertently be exonerated of the charge, and the lower Court erred in affirming the decision of the trial Court, that the Respondent had successfully established all the ingredients of the offence charged.
He relied on this Court’s decision of AYAN V THE STATE (2013) LPELR 20932 SC and urged this Court to resolve these issues in favour of the Appellant.
Arguing in opposition to the above, it is submitted for the Respondent that the learned trial Judge painstakingly evaluated the evidence of PW1 and PW4 which effectively pinned the Appellant to the scene of the crime.
Learned counsel for the Respondent stated that by the evidence of PW1 and PW4, the Appellant was clearly identified by his voice and visual identification during the commission of the crime, which according to him, were some of the established ways of linking a person with the commission of the crime. He relied on the case of EMENEGOR v. STATE (2010) ALL FWLR (PT 511) 884.
He continued by arguing that it is not in all matters that once the defense of alibi is raised, an accused person is completely exculpated from the crime. According to him, if the prosecution can adduce succinct evidence, pinning the accused to the scene of the crime, the defense of alibi will automatically fail. He called in aid, these cases: ATTAH V THE STATE (2010) VOL 30 WRN P1 NWABUEZE AND ORS V THE STATE (1988) 7 SCNJ (PT11) PG248.
He submitted in conclusion that the Court below properly evaluated all the evidence adduced before coming to the conclusion that the trial Court rightly convicted the Appellant for the offences charged.
This Court is urged to so hold, and resolve these issues against the Appellant.
I have carefully looked at the evidence of PW1 at pages 35 to 37 of the record. Part of the said evidence reproduced reads as follows: “I picked up my torchlight and flashed outside, I saw the first accused person, I then shouted obosco you are the one doing this to me, the first accused person then replied that I should forget about that and open the door for them”… when I entered the room, I saw the face of the second accused person through the window, I started shouting his name again that kokorowa this is not good oo.
The accused person went to where I parked my car and damaged all the glasses and windscreen.”
PW4 also stated as follows: I know the first accused person and obosco and the second accused person as kokorowa. I know them in the town and they are my customers and as such, I can identify them anywhere… they shouted open the door but my husband insisted he will not open the door. They broke the glass of the window and called the name of my husband super open the door”
Looking at the above pieces of evidence, to my understanding, PW1 and PW4 both have a clear understanding as to the identity of the accused persons. What more could be tagged as identity of someone other than his name? At pages 70 and 72 of the Record, the accused persons admitted under cross-examination that they are being called Obosco and Kokoro Ewa respectively. See: UGWU V THE STATE (2020) LPELR-49375 SC, IDIOK V THE STATE (2008) FWLR (PT 421) 797.
In rejecting the defence of alibi, the Court below observed as follows, at pages 201 to 202 of the Record: “In a situation such as in this case, where an accused is fixed at the scene of crime, the fact that the police/prosecution did not investigate the claim of alibi is very irrelevant as such an investigation would be a complete waste of time, a worthless exercise, which can be likened to a wild goose chase.
It follows therefore, that where an accused is fixed at the scene of crime, which evidence is believed by the learned trial Judge, no reasonable doubt is created for the benefit of the accused if the police failed and/or neglected to investigate a claim of an alleged alibi put up by the defence/accused person. On the issue of identification…it is clear that both PW1 and PW4 recognised and further identified the Appellant as one of the robbers that invaded their residence.
I think it is worth restating, that when an accused person is fixed at the scene of the commission of the crime, the plea of alibi fails and fizzles out as a candle in the wind……..in the case at hand, where the Appellant was duly identified, recognized and fixed at the commission and the locus of the crime by PW1 and PW4, who knew him before the incident, there was no burden to verify the plea of alibi…”
I find this decision of the Court below to be infallible and have no reason to hold otherwise.
An appellant insinuating that he was not at the scene of the crime has the burden to also lead in credible evidence to discredit the prosecution’s case in proving his defense of alibi. The Appellant at page 70 of the record stated that he was at his house at the time of the commission of the offence. There is nothing in the record that supports the Appellant’s alibi or discredits the Prosecution’s firm evidence against him. This Court in the case of IDIOK v THE STATE (supra) had this to say: Once an accused person is fixed at the scene of the crime, his defense of alibi must fail.
The conclusion to which I have come is that I must resolve these two issues against the Appellant,
The concomitant effect of the above is that this appeal is wholly unmeritorious and worthy of dismissal. Same is accordingly dismissed by me.
The decision of the Court of Appeal, Ado Ekiti Division, delivered on the 31st of March 2014 is hereby affirmed.
OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft copy of the leading judgment just delivered by my learned brother, ABOKI JSC. For the reasons given, I too find no merit in the appeal. Appeal dismissed. The judgment of the Court of Appeal is affirmed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance, the lead judgment of my learned brother ABDU ABOKI JSC just delivered. I adopt the reasoning and conclusion therein as mine in dismissing the unmeritorious appeal.
HELEN
MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft, the judgment just delivered by my learned brother ABDU ABOKI, JSC. I agree that this appeal be dismissed.
I have read the briefs and the Records in this appeal. In this case, there are concurrent findings of fact by the High Court and the Court of Appeal that indeed the Appellant and one other person {co-defendant) well known to the victims committed conspiracy, armed robbery and willful damage to property under the Robbery and Firearms Act Cap 398 Laws of the Federation 1990, as amended. The issues raised by this appeal are settled.
The Appellant’s erroneous contention that after a charge is withdrawn or amended and the original charge is struck out, the charge against the Appellant ceases to exist and the trial should have started de novo based on the new charge is completely misconceived. When a charge is altered, amended or substituted, and the fresh charge is read to the Defendant in the language he understands, and the plea of the defendant is taken, the Court would ask the Defendant whether he intends to recall any prior witnesses who had given evidence.
The Defendant is also allowed to call additional evidence where he so wishes depending on the stage of the prosecution or defence. The trial Court can proceed with the trial after these steps have been taken. See. Ogudo v The State (2011) LPELR 860 SC. FRN v. Adewunmi (2007) LPELR-1273(SC) Nigerian Air Force v. James (2003) FWLR pt.143 pg. 257, Bude v. The State (2016) LPELR-40435 (SC). This Court in FRN v.
Adewunmi was clear regarding the interpretation to be given to the procedure set out in S.164 (4) of the Criminal Procedure Act (same as S. 164 (4) of the Criminal Procedure Law of Ekiti State.
The Appellant complained that the trial Court did not appreciate the difference between Section 162 of the CPA which talks of framing a new charge. In that case, substitution of a new charge is expected as in this case. However, Section 163 of the CPA talks of alteration or addition to a charge leaving the original charge intact. Complaint that the trial Court and lower Court missed the purport of the distinction between the 2 Sections of the CPA.
Counsel posited that trial Court should have altered/amended under S. 163 rather than substituted under S. 162 after several witnesses had been called. That is mere technicality, there is nothing to show that if there is any mistake, it has caused miscarriage of justice.
The 2nd and 3rd issues are challenging the concurrent findings of fact by the two lower Courts in relation to the identity of the Appellant. The Appellant relied on the alibi that put him in his home with his wife on the night of the incident.
Even though there is no evidence that the police investigated his alibi, and he on the other hand did not call his wife to substantiate his alibi, the evidence of P.W.1 and P.W. 4 was clear and unequivocal that they saw the Defendant, heard his voice, exchanged conversation with him while he and another were robbing them and others and vandalising their property. The witnesses called him by his nickname and he in turn responded. The law is settled that where a defendant’s presence is credibly and unequivocally fixed at the time and place of a crime, his defense of alibi must fail.
See Iheanu-Ekwu Ndukwe v. The State (2009) 2 SCM 147 at 176-177, Oluwasegun Akereyeli v. The State (2015) LPELR -25811 (CA) Victor v. State (2013) LPELR -20749 (SC).
I disagree with the Court of Appeal’s general statement of the law that failure to investigate alibi of accused where there is direct evidence fixing the accused to the scene of crime is irrelevant. In my view, both the evidence of witnesses and the alibi of the accused on oath are substantially oath against oath.
If the alibi is investigated, the outcome of the investigation can be used by the judex to weigh the preponderance of evidence on both sides and after considering the credibility of both witnesses arrive at a finding of fact beyond reasonable doubt one way or another. My Lords, every case must be considered on its own facts.
It is quite a different thing where the evidence of identification is faulty, for instance where the Defendant was a complete stranger to the witnesses, or only had a fleeting encounter with the witness, he was not arrested at the scene of crime, a procedurally faulty identification parade was conducted to identify him as the perpetrator of the crime. Added to all or any of the above, the Appellant must have set up an alibi at the earliest opportunity to the police.
In any of the above scenario, the Court may insist that the failure of the police to investigate the alibi has raised doubt in the case of the prosecution and such doubt should be resolved in favour of the Defendant.
I want to say that for the sake of emphasis that even where the police were unable or refused to investigate the alibi of the Defend, acquittal would depend on the overall circumstances of the case. Where there is doubt in the evidence adduced by the prosecution, failure to investigate the alibi to clear any doubt in the defence of the Defendant becomes the final lid in the coffin of whatever case the prosecution intended to make and the prosecution’s case would be buried.
Heavy weather was made on the issue of identification regarding whether the assailant wore masks or not. The fact of whether they wore masks or not in the circumstances of this case does not constitute substantial contradiction. P.W. 2 who said they wore masks was in another house not the same house as P.W.1 on the night of the incident. P.W.5 stated that they were not masked but he could not recognize them also he lived in another house. It is to be noted that several houses were raided. I can find no material contradiction in the case of the prosecution.
The Defendants were well known to their victims.
I am persuaded by the facts of this case that there was absolutely no reasonable doubt in the prosecution’s case. As I said earlier, there are concurrent findings of fact that indeed the Appellant committed the offence for which he was convicted and sentenced. These findings were not arrived at by a perverse route, there is no wrong application of procedural or substantive law which in my view has led to a miscarriage of justice that might cause a reversal of the judgment of the two lower Courts. There is no merit in this appeal.
I affirm the judgment and orders of the Court of Appeal delivered on 31/3/2014 at the Ado Ekiti Division. Appeal Dismissed.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Abdu Aboki, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.
Appearances
ASEKERE v. STATE
On Friday, January 21, 2022
SC.321/2015Before Their Lordships
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
Judgment
UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment) : The case of the Respondent is that PW1, Titilayo Adeyemo, knew the Appellant through a customer named Sylvester, for about 5 years before the incident because they used to buy goods from her. On 2/9/2011 at about 7 pm to 7:40pm, when there was electricity light, the Appellant with his gang of armed men attacked Mrs. Titilayo Adeyemo (PW1), her daughter and others in the shop of PW1, when he came to buy cigarette. When she bent down to pick the cigarette, she heard a gunshot fired by the Appellant.
The Appellant later snatched a bag from her containing a Bible, wrist watch and the sum of N180,000.00, which was by her side. The incident was subsequently reported to the Anti-Robbery Squad. She was asked if she knew any of the armed robbers and she mentioned the name of the Appellant, who was thereafter arrested.
The Appellant’s case however was that he knew PW1 through her daughter (PW2), who used to sell alcoholic drinks at Adeolu Street, Ayedun quarters, Akure, where he used to visit PW2 as a lover. He alleged that he quarreled with PW2, who did not give him attention when he visited her that day because she was talking with another man for about 30 minutes. In another breath, he gave an alibi that he was with his mother in Eleyowo village, where they were tending to their farms on the day of the incident and was impossible for him to conspire with anybody.
The trial Court found the Appellant guilty for conspiracy and armed robbery. The lower Court quashed the conviction on conspiracy but affirmed the conviction for armed robbery, hence this appeal.
ISSUES: The Appellant’s two issues adopted by the Respondent read thus: 1. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the testimonies of PW1, PW2 and PW3 at the trial Court sufficiently demolished the Appellant’s defence of alibi given the varied inconsistencies in the testimonies of both PW1 and PW2. 2. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.
I shall condense the two issues into one to be considered thus: Whether by the testimonies of PW1, PW2 and PW3, the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.
ARGUMENTS: The submission of the Appellant’s learned Counsel is that the core evidence of PW1 and PW2 are replete with contradictions and inconsistencies that cannot be relied upon to convict the Appellant. He relied on ADEKUNLE OLUWAFEMI ALO V. STATE (2015) LPELR-24404. Also, that the failure to investigate the timeous and corroborated alibi of the Appellant was fatal to the case of the Respondent. He placed reliance on ADEYEMI V. STATE (2018) ALL FWLR (PT.929) AT 305-306, STATE V. ANI (2009) 16 NWLR (PT.1168) 443.
The learned Counsel further submitted that the confessional statement of the Appellant having being made in a language other than English and not signed by him ought not to be relied on to convict the Appellant. Besides, that the six tests for determining the veracity of a confessional statement was not followed by the lower Court in affirming the conviction of the Appellant. He urged this Court to resolve the two issues in favour of the Appellant and to allow the appeal and set aside the decision of the lower Court.
The Respondent’s learned Counsel submitted on the other hand that the defence of alibi is always demolished where the prosecution adduces evidence to fix the accused person to the scene of the crime. He quoted in support SHEHU V. STATE (2010) 2-3 SC (PT.1) 158, IKUEPENIKAN V. STATE (2011) 1 NWLR (PT. 1229) 499.
He maintained that the evidence of PW1 and PW2 pinned the Appellant to the scene of the crime thereby rendering futile his alibi. He asserted that the direct evidence of PW1 and PW2 on the identification of the Appellant as one of the persons that robbed them was direct, positive and credible to prove ingredients of armed robbery against the Appellant. He prayed this Court to dismiss the appeal.
RESOLUTION: The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. The elements above have to co-exist and established beyond reasonable doubt. See AWOSIKA VS THE STATE (2010) 9 NWLR (PT. 1198) 40 AT 71-73.
The Appellant as usual, denied the armed robbery and introduced alibi. Hence, the need for the Respondent to prove the commission of the crime against him. In proving armed robbery against the Appellant, the 3 ways of proving a crime in Court must be resorted to, which are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) Circumstantial evidence. See Per NGWUTA, JSC, in BILLE V. STATE (2016) LPELR- 40832(SC) (P. 15, PARAS. A-B).
The direct/eyewitness evidence of PW1 to the police was repeated in her oral testimony to the Court when at pages 18-19, she stated as follows: …I know the 1st and 2nd accused but I do not know the 3rd accused. I have known the 1st and 2nd accused for at least five years. The two were coming to buy goods from me. I know them through another customer who introduced them to buy from me. The person who linked me with the 1st and 2nd accused was an Ibo man Sylvester. I remember 2nd September, 2011. It was around 7 pm I was in my shop.
There were some other people in the shop that time we were up to four people. Tosin Adeyemi was in the shop (sic) she is my daughter. The 1st accused came into the shop. He requested to buy cigarette. I bent down to take the cigarette he requested for… l heard a gunshot. It was Tosin Asekere that fired the gun. I fell down. The first accused put on a muffler and a black overall that day. He also said Ave! Ave! and the 2nd accused also was present that night. He also said Ave! Ave! The 1st accused then snatched my handbag which was beside me. There were at least six of them that night.
There was electricity in my shop that night. There was N180,000.00 in the bag. It was a contribution I collected. There was a Bible, my wristwatch and other things in the bag that the 1st accused snatched from me that night…
The above oral testimony in Court did not derogate or contradict her statement to the police contained at pages 7- 8 of the record, Under cross examination at page 19, she affirmed inter alia thus: …I have had other customers before the 1st accused came to my shop at 7 pm. I shut down after the robbers left… l am certain that the 1st accused was among those who robbed me. He shouted Ave! Ave! and the others rushed to my shop. There was girl among the robbers but I did not see her face… l am only certain of the presence of the 1st and 2nd accused among the robbers.
I cannot identify the others… The 1st accused… was the person who took my bag…
PW2, Tosin Adeyemi, at pages 21-22 of the record testified in Court as follows: I got to know the 1st accused about three to four years ago when he was coming to my mother’s shop… The 1st accused was coming to visit Sylvester at our area and I became acquainted with him. 1st accused had been coming to our shop before the day of the incident… I was eating when the 1st accused came to ask for Benson cigarette my mother PW1 was trying to sell the cigarette to the 1st accused when there was a gunshot. The 1st accused then shouted Ave! Ave! and some other people came to where we were.
The 1st accused dressed in mafia dress and he had a red beret on that night. The 2nd accused was one of those who came to our shop… l have known him for a long time at Ayedun quarters where we live. The bag of my mother was taken… There was electricity that night. I know they were between six and eight that came that night. There was a woman among them. She put on a two quarter trouser and a top and she had a cross bag on her body. But I cannot identify her.
Under cross examination at page 22, she debunked her love affairs with the Appellant and further revealed amongst others that “The 1st accused had never proposed to be my lover…l have a fiancé and he was present that night. My fiancé did not give statement to the police… I have no issue of any kind with the 1st accused that will make me to lie that he committed armed robbery. The 1st accused never talked to me about love let alone asking me to be his wife…”
On the investigation of the alleged alibi put up by the Appellant, PW3 testified at page 27 of the record thus: …We went to Eleyowo without the 1st accused to investigate the alibi of the 1st accused. He gave us address of his mother at Eleyowo. We did not see the mother of the 1st accused to interview. The mother of the 1st accused later came to us at the office. That was when we wanted to charge the case to Court. The mother of the 1st accused did not categorically say that the 1st accused was with her on the day the robbery took place…
I must not gloss over the defence of Alibi by the Appellant. His alibi was corroborated by his sister as DW1 and his mother as DW2. See pages 31-33 of the record. They both affirmed that the Appellant was with them at Eleyowo in the farm when the armed robbery took place. The trial Court at pages 100-102 considered the alibi of the Appellant vis-a-vis the evidence of DW1, DW2 and DW2 and found them unreliable and unsupportive to the case of the Appellant.
I have considered also the judgment of the lower Court on the defence of alibi put forward by the Appellant at page 200. The lower Court also emphasized on the strength of the evidence of PW1 and PW2 pinning down the Appellant to the scene of the armed robbery to demolish the alibi of the Appellant. An alibi is not one of the ways of proving a crime but a defence available to the accused. Thus, it is not a direct or eyewitness account except the circumstances prove it so.
It is mostly a circumstantial evidence that must always bow and subject itself to an uncontradicted and credible evidence of an eyewitness or direct evidence.
I make bold to state here that the Appellant has shot himself on the foot when he raised the defence of alibi and co-opted others to corroborate it. Their testimonies are but a farce and a mockery of evidential and factual prove of a crime. Whether the Respondent investigated the Appellant’s alibi or not is not relevant or worth considering.
At page 9 of the record, the Appellant made his statement to the police that “On the second of September 2011, I was with my mother at Eleyeowo, I went there to help my mother in her farm work and I came back to Akure on the 18th of September 2011.” There is an adage in Hausa that says “if he that spoken a thing is a fool, the hearer is not a fool like him.” Subsequently at pages 35-36 of the record, wherein the Appellant testified in Court, he exposed amongst others that “I later went to PW’s shop one evening to see PW2. I saw PW2 talking to a man. The man was a timber lorry driver.
The man apparently was dating PW2. I asked PW2 what was the matter. She said everything was alright. PW2 said I should let her have her phone. I gave it to her, She was talking with other man without giving me any attention. This was on for about thirty minutes. I became angry and I went to PW2 to collect my phone. She did not want to give it to me, I snatched it from her. As I was going, PW2 held my shirt. My shirt got torn. I slapped PW2. PW2 then held me. PW1 now came to where I and PW2 were struggling. PW1 was pushed. She fell down and she dislocated her limb.
I was at Eleyowo village on 2nd September, 2011. I was with my mother and we were tending to our farms…”
The Appellant cleverly introduced a strikingly, contrary and contradictory evidence from the alibi he earlier alleged in his statement to the police, supposedly to extricate himself from the alleged offence. The law is trite that once an accused person’s confessional statement is voluntary and true but inconsistent with his evidence in Court, a Court may convict. See Per OLABODE RHODES-VIVOUR, JSC, in JAMES SIMON V. THE STATE (2017) LPELR- 41988(SC) (PP. 17-19, PARAS. F-A).
Furthermore, where there is direct evidence linking an accused with the commission of the offence, he can safely be convicted for the commission of the said offence. See Per ONU, JSC, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR-270(SC) (P. 20, PARA. F). The evidence of PW1 and PW2, being direct and positive have indeed proved the guilt of the Appellant beyond reasonable doubt. Thus, in the order of priority of evidence to prove a crime after confessional statement, direct evidence is superior to circumstantial evidence. This was emphasized in ADIO V.
THE STATE (1986) 2 NWLR (PT.24) by per Oputa JSC. In law, where there is direct evidence linking an accused with the commission of the offence as in the present appeal where the Appellant was directly identified and fixed to the armed robbery, he can safely be convicted for the commission of the said offence. See Per ONU, J.S.C, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (P. 20, PARA. F). The direct and eyewitness evidence of PW1 and PW2 has not been impugned or discredited by the bogus alibi of the Appellant.
On the defence of alibi raised by the Appellant, apart from the fact that the Appellant himself has watered it down, it cannot stand where there is direct evidence countering it, even when it is not investigated. What will be investigated is what is not certain but what is certain needs no further investigation. It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per SYLVESTER UMARU ONU, JSC, in AIGUOREGHIAN & ANOR V.
STATE (2004) LPELR- 270(SC) (PP. 20-21, PARAS. G-C). This issue is definitely resolved against the Appellant. The appeal grossly fails and is hereby dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I agree with my learned brother UWANI MUSA ABBA AJI, JSC, that this appeal completely lacks merit. The appellant insists on an alibi. The evidence on record puts him at the scene of the crime beyond contention. I adopt the fuller reasons given in the lead judgment to dismiss the unmeritorious appeal.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Abba Aji, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal lacks merit. It therefore deserves to be dismissed. I propose to add only a few observations on: a. Concurrent findings; b. Identification evidence; and c. Contradictions in evidence.
As a matter of Practice, the Supreme Court is always hesitant to interfere with or disturb the concurrent findings of the trial Court and the lower Court, except where such findings are perverse, or misapplication or misconception of law is prevalent, Bassey v The State [2019] 12 NWLR (pt. 1686) 348, 376; paragraphs E-G; Iyaro v The State [1988] 1 NWLR (pt. 69) 256; Onitilo v The State [2018] 2 NWLR (pt. 1603) 239.
In this case, both Courts were concurrent in finding the appellant guilty of Armed Robbery despite his defence of alibi. The onus therefore lies on the appellant to give very good reasons why this Court should interfere in the findings arrived by the two lower Courts, Muhammad v The State [2017] 13 NWLR (pt. 1583) 386; Jibrin v Federal Republic of Nigeria (2018) LPELR-43844(SC). As Ademola, CJN, rightly observed in the case of Omisade v The Queen [1964] NSCC (Vol. 3) 170 “…it is not the function of this Court to retry a criminal case on appeal.”
He further stated that: “if there was evidence before the trial Judge from which he could reasonably have come to the conclusion which he did, the verdict must stand.”
In the instant case, the appellant has not furnished the Court with any exceptional circumstance o r reason at all as to warrant interfering with the concurrent findings of both lower Courts.
On the issue of identification evidence, the law is trite that whenever a Court is faced with identific ation evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. There ought not to be a doubtful identification of a culprit.
It must also be stated that Identification Parade is not mandatory for identification in all cases where there has been a momentary encounter with a victim of a crime, especially where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence, Aliyu v The State [2007] All FWLR (pt. 388) 1123; Alabi v The State [1993] 7 NWLR (pt. 307) 511; Ebenezer v The State [2020] 8 NWLR (pt. 1727) 573.
On the issue of contradictions, it must first be stated that whether there were contradictions in evidence of witnesses, it is primarily the duty of the trial Court to determine, and if there were, it is that Court’s duty to advert to them and take them into consideration in the evaluation of the credit of the witnesses, Igbi v State [2000] 3 NWLR (pt. 648) 169.
Furthermore, it is not in all cases that once the defence avers contradictions or conflicts in the evidence of prosecution, that same is fatal to the prosecution’s case, John Agbo v The State [2006] 1 SCNJ 332, 342; The State v Danjuma [1997] 5 N WLR (pt. 506) 512. Contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court.
Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Enahoro v The State [1965] NSCC (Vol. 4) 98, 113; Isibor v The State [2002] 4 NWLR (pt. 758) 741; Sele v The State [1993] 1 NWLR (pt. 269) 276; Jimmy v The State [2013] 18 NWLR (pt. 1386) 229. In this case, the contradictions that the appellant alleges are only mere discrepancies in the accounts and testimonies of PW1 and PW2 for which no serious premium deserves to be placed on same.
It is for these, and the more elaborate reasons in the leading judgment, that I too shall enter an order dismissing this appeal as unmeritorious.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, JSC. I am completely in agreement that the appeal is devoid of merit and should be dismissed.
This is a case of armed robbery wherein two of the prosecution witnesses, one of whom was the victim, clearly identified the Appellant who was well known to them. The prosecution witnesses stated that there was electricity in the shop where they were attacked by the Appellant leading a gang of other people.
Not only that, the prosecution witnesses who were eye witnesses to the crime mentioned the names of the Appellant and one other person at the earliest opportunity to the Police.
The Appellant raised the defence of alibi which was adequately investigated by the Police. I find no reason to upset the findings of the trial Court who had the opportunity of hearing and seeing the prosecution witnesses and who believed their own version of the story rather than the version of the Appellant and his witnesses who swore that he was on the farm on the day in question. Where an eyewitness evidence directly and unequivocally pins the Defendant to the scene of crime at the time the crime was committed, the alibi cannot be a viable defence to the crime.
In this case, the alibi of the Appellant supported by his mother and younger sister was completely demolished by the eyewitness evidence of PW1 and PW2 who were victims of the crime and who knew the Appellant well before the date of the offence. In the circumstance, this appeal fails. It is hereby dismissed.
The judgment of the Court below is affirmed with its order of conviction and sentence imposed on the Appellant. Appeal Dismissed.
ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is unmeritorious and ought to be dismissed. I adopt the said judgment as mine and join my learned brother in dismissing the appeal.
Appearances
MUSA v. STATE
On Thursday, February 10, 2022
CA/KN/06/C/2020Before Their Lordships
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
Judgment
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Jigawa State High Court delivered by M.A. Sambo, J. on 31st October, 2013. The Appellant was arraigned before the High Court of Jigawa State on a lone count charge of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.
The charge reads:- “That you Alhassan Musa (m) on or about 24th day of May, 2011 at about 12:00am at Nabai, Fulani settlement in Babura Local Government Area of Jigawa State within the Jigawa Judicial Division killed your wife by name Nanazabau Musa by using a matchet and cutting her neck and throat as a result she sustained injury and died as a result of the said injury and you thereby committed an offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code of Jigawa State.” The accused/Appellant pleaded not guilty to the above charge and the prosecution opened its case and called a total number of 7 witnesses and tendered 1 Exhibit.
The accused/Appellant opened his defence and called 2 witnesses. At the conclusion of hearing and address of Counsel, the trial Court in a considered judgment found the accused/Appellant guilty as charged and sentenced him to death. Dissatisfied with his conviction and sentence, the accused/appellant filed a notice of appeal in challenge of same.
The said notice of appeal contained 3 grounds of appeal couched thus:- GROUND ONE The learned trial judge erred in law when he held thus:- “Consequently, I am satisfied that the ingredients for the offence of culpable homicide supra have been established against the accused person by the prosecution.
I am therefore convinced beyond reasonable doubt that the accused person committed the offence of culpable homicide contrary to Section 221(b) of the Penal Code and punishable under the same section of the law when he caused the death of Nana Zabba’u (his wife) by cutting her neck with a sharp object on the neck on the 24th May, 2011. PARTICULARS OF ERROR i. The prosecution had failed to prove the essential ingredients of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code Law, Cap 107, Laws of Jigawa State. ii.
None of the prosecution witnesses was an eyewitness to the crime. iii. None of the prosecution witnesses unequivocally linked the Appellant to the commission of the offence. iv. The evidence of PW2 and PW3 relating to the object allegedly used to inflict injury on the deceased recovered from the Appellant are contradictory and the same was not tendered in evidence. v. There was no cogent and reliable circumstantial evidence to justify the conviction of the Appellant. vi. The evidence of PW2 and PW3 are hearsay and inadmissible to establish that the Appellant killed the deceased. vii.
Exhibit A (the Autopsy report on the deceased) did not reveal the type of object that caused the injury on the deceased. GROUND TWO The learned trial judge erred in law when he held thus: “For the foregoing reasons, I am satisfied and I believed that the defence of alibi is not properly raised or established by the accused person for the prosecution to rebut same”. PARTICULARS OF ERROR i. The Appellant properly and timeously raised the defence of alibi, which defence was raised upon arrest of the Appellant and at the Police Station. ii.
The evidence of the Appellant that he raised the defence of alibi at the Police Station was not controverted or challenged under cross-examination. iii. The evidence of PW2, PW3 and DW2 corroborated the Appellant’s alibi. iv. The police refused to investigate the Appellant’s alibi which was raised at the earliest opportuned time. GROUND THREE That the judgment of the learned trial judge is unwarranted, unreasonable and against the weight of evidence.
In compliance with the practice and procedure of this Court, the Appellant filed his brief of argument on 31/08/2020 but it was deemed filed on 22/03/2021. In the said brief, two issues for determination were formulated. The issues are:- 1. Whether from the totality of evidence placed before the trial Court the Respondent proved all the ingredients beyond reasonable doubt for the offence of culpable homicide punishable under Section 221 (b) of the Penal Code of Jigawa State to warrant a conviction and sentence of the Appellant (Distilled from Grounds 1 and 3). 2.
Whether the trial Court was right in dismissing the defence of alibi raised by the Appellant (Distilled from Ground 2). The Respondent’s brief was filed on 08/11/2021 but deemed properly filed on 10/11/2021. The Respondent adopts the two issues for determination formulated by the Appellant.
In arguing issue one, learned Counsel for the Appellant Abdulaziz Ibrahim, Esq., submitted that it is settled that to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove the following ingredients:- (a) That the deceased had died; (b) That the death of the deceased was caused by the act of the accused; and (c) The act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He referred to OGBA VS. THE STATE (1992) 2 NWLR (PT. 224) 164, ORJI VS.
THE STATE (2008) 6 MJSC 169 and OGIDI VS. THE STATE (2005) 5 MJSC 155. The charge against the accused must be proved by the prosecution beyond reasonable doubt. He argued that the prosecution failed to prove that it was the act of the accused that caused the death of the deceased. In other words, there was no evidence linking the cause of death to the Appellant. The evidence of PW1 is hearsay and was not an eyewitness to the commission of the offence.
PW1 also stated that he recorded the extra-judicial statement of the Appellant which was not tendered and he urged the Court to invoke the provision of Section 167 (d) of the Evidence Act. He argued that evidence of PW2 and PW3 is also hearsay. He argued that evidence of what a witness was told by other is hearsay and inadmissible. He referred to UBANI VS. THE STATE (2003) 18 NWLR (PT. 851) 224 and OZUDE VS. IGP (1965) 1 ALL NLR 102. He also submitted that the evidence of PW4, PW5, PW6 and PW7 did not link the Appellant with the death of the deceased.
PW4 who is a minor testified that she knows nothing about the incident and was not around when it happened, PW5 testified that he was home when he was informed of what happened and before he could reach the scene everything was over. PW6 on the other hand testified that he was sleeping when he heard the deceased screaming. He did not say it was the Appellant who inflicted the injury that caused the death of the deceased. PW7 who is a Police officer only took the Appellant’s statement at the State C.I.D. Dutse.
All these witnesses did not link the cause of death of the deceased to the Appellant and the trial Court ought to have discharged him. He argued that in the absence of direct evidence linking the Appellant with the death of the deceased, the Respondent resorted to circumstantial evidence which is not cogent and reliable to warrant the conviction of the Appellant. It is a settled law that circumstantial evidence must be so compelling that in the circumstances of the case, it could be inferred that no other person caused the death of the deceased save the accused.
Thus, circumstantial evidence must unequivocally point to an act of the Appellant. Its nature must be indisputable, cogent, positive, irresistible and conclusively point to no other person but the accused. He referred to LORI & ANOR VS. THE STATE (1980) 8 – 10 SC 81, JUA VS. THE STATE (2010) ALL FWLR (PT. 521) 1427, UDOEBRE & ORS. VS. THE STATE (2001) ALL FWLR (PT. 59) 1244 and IGBIKIS VS. THE STATE (2017) ALL FWLR (PT. 883) 1405.
The evidence adduced by the Respondent at the trial did not suggest the guilt of the Appellant as the circumstantial evidence was not so strong or cogent enough to suggest that the Appellant killed the deceased. The circumstantial evidence only amount to suspicion and no amount of it can sustain a conviction for homicide. He referred to ZUBAIRU VS. THE STATE (2015) ALL FWLR (PT. 794) 178, ALMUSTAPHA VS. THE STATE (2013) 17 NWLR (PT. 1383 350, IKOMI VS. THE STATE (1986) 3 NWLR (PT. 28) 340 and EZE VS. THE STATE (1976) 1 SC 125.
He submitted that it is a settled rule that where a circumstantial evidence is susceptible to two equally possible inferences, the Court should accept that inference which goes in favour of the accused. He referred to AHMED VS. NIGERIAN ARMY (2017) ALL FWLR (PT. 869) 813. Thus, the Appellant’s testimony that he ran away because he thought that it was armed robbers which evidence was not controverted by the Respondent, and the inference that he ran away because of fear of being arrested are two diametrical hypothesis that ought to be resolved in favour of the Appellant.
Therefore, the second ingredient of the offence was not established. He referred to TEGWONOR VS. THE STATE (2008) ALL FWLR (PT. 424) 1484. On issue two, he submitted the law is settled that a Court is bound to consider all the defences raised by an accused person. He referred to NWANKWOALA VS. THE STATE (2006) ALL FWLR (PT. 339) 801. That where an accused set up the defence of alibi and gives some facts and circumstances of his whereabouts, the prosecution is duty bound to investigate the alibi set up to verify the truthfulness or otherwise of the alibi. He referred to AYAN VS.
THE STATE (2014) ALL FWLR (PT. 740) 1409. The Appellant having informed the Police that he was not at home when the incident happened, it is their duty to investigate the alibi. The said evidence was corroborated by the evidence of DW2. The Appellant has a duty to establish his defence of alibi and that he did through DW2. He referred to OSUAGWU VS. THE STATE (2013) 1 SCNJ 33 and OFORLETE VS. THE STATE (2000) 7 SCNJ 162. Failure of the Police to investigate the defence of alibi set up by the Appellant ought to make the Court resolve the defence in favour of the Appellant and allow the appeal.
In arguing issue, learned Counsel for the Respondent, Mustapha B. Adamu, Esq., submitted that it is the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt and in a charge of culpable homicide punishable with death, the prosecution must prove that (i) the deceased died, (ii) that the death of the deceased was as a result of the act or omission of the accused and (iii) that the act or omission of the accused which caused the death of the deceased was done intentionally or carried out with the knowledge that grievous bodily harm was its probable consequence.
He referred to MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467. He argued that the first ingredient of the offence is not an issue as the prosecution was able to prove the death of one Nana Zaba’u Musa. The contention and argument of the Appellant is that the second ingredient is not proved as these is no evidence linking the death of the deceased to the Appellant. He stated that the prosecution can prove its case by calling eyewitnesses to the commission of the offence, by circumstantial evidence or by a confessional statement made by an accused person. He referred to EMEKA VS.
THE STATE (2001) 14 NWLR (PT. 734) 666. He argued that the trial Court convicted the Appellant through circumstantial evidence which is considered as the best evidence in establishing a case of murder. He referred to MUHAMMED & ANOR VS. THE STATE (2007) LPELR 1894 and ADDO VS. THE STATE (2020) LPELR 55521.
The Court is entitled to, where direct evidence of an eye witness is not available, the Court may infer from facts proved the existence of other facts that may logically tend to prove the guilt of the accused and from the judgment of the trial Court at PP. 96 – 98 of the record of appeal, its finding of fact was in line with the evidence of witnesses and other evidence before it.
He also argued that from the evidence of DW1 (the Appellant), it seems that he was the last person seen with the deceased before her death and he is bound to give an explanation as to the cause of the death of his deceased wife. He referred to DATTI VS. THE STATE (2021) LPELR 55173. Having been the last person seen with his wife when she was hale and hearty, it follows therefore that there is an irresistible conclusion that the Appellant killed her. On issue two, he submitted that the burden of proving a particular fact rests on the party who asserts that fact.
He referred to Section 139(1) and (2) of the Evidence Act. Thus, the burden of establishing any defence lies on the Appellant. He referred to YARO VS. THE STATE (2007) 18 NWLR (PT. 1066) 215. He also stated that at the trial, the Appellant as DW1 testified that he went to Danuyawo village for a festival and was there when his wife died. The defence of alibi set up by the Appellant must be raised at the earliest opportunity and not during trial. He referred to NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1050) 633.
It is therefore an afterthought for the Appellant to raise the defence of alibi at his trial. He argued further that the defence of alibi must be precise and specific. He referred to OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57. In the case at hand, the Appellant failed to disclose facts which will support his alibi by not disclosing where he was and who he was with when he went to Danuyawo village for a festival.
On the issue of withholding evidence on failure to tender the extra-judicial statement of the Appellant, he argued that the issue of withholding evidence must be credibly established by making a demand which the prosecution failed to honour. He referred to AUWALU VS. THE STATE (2020) LPELR 50323; AREMU VS. THE STATE (1991) 7 NWLR (PT. 201), BUSARI VS. THE STATE (2015) LPELR 2479, EGWUCHE VS. THE STATE (2018) LPELR 43975, OKERE VS. IGP (2018) LPELR 44178, ROBERT VS. IGP (2018) LPELR 44176, EWUGBA VS. THE STATE (2018) 7 NWLR (PT. 618) 262 and ADEKOYA VS. THE STATE (2010) LPELR 3605.
He urge the Court to resolve the two issues against the Appellant and dismiss the appeal. Now, I have gone through the issues for determination formulated in the Appellant’s brief of argument which issues were adopted by the Respondent, that notwithstanding it is my opinion that a resolution of this appeal can be made through only one issue for determination. The issue is:- Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code.
All arguments as contained in both briefs of argument will be subsumed and considered under the above lone issue. I think it would be pertinent to examine the evidence adduced by the prosecution at the trial. DW1 was PC Shittu Yakubu, a Police Officer. He testified that on 21/05/2011 while on duty at Babura Police Division two persons by name Alhaji Ado Dawai and Ahaji Habu reported that the accused Alhassan Musa residing at Nabai village killed his wife with a cutlass and ran away with the weapon. He also stated that some people have gone after the accused person.
They went to the scene of the crime where they met the deceased lying in her pool of blood. They took the deceased to Babura General Hospital where she was confirmed dead and an autopsy was performed. On their return to the Police station, they found that the accused has been arrested. He recorded his statement and the accused confessed that he killed his wife by using a cutlass on her. He gave his reason that his wife usually ask him where he was coming from at night and on that occasion, he told her that he was returning from his parent’s house and she did not believe him.
His wife then told him that if he is looking for another wife he should divorce her to which he replied that he cannot withstanding seeing her married to another man and he picked his cutlass and stroke her down. PW2 was Gwabna Yusuf. He testified that on 21/05/2011, he in company of another went to a ceremony at Daudu Fulani settlement. On their way home, they saw the accused who requested for water to drink and they were only able to get some water at the next village. When they fetch the water they had to assist the Appellant to drink the water.
They continued their journey and sighted a vehicle coming their way and the Appellant said they should ran away. PW2 asked what the Appellant has done that if he is on the path of truth he should not run anywhere. But the Appellant fled. When the vehicle stopped the occupants asked PW2 if they had seen a young boy who just killed his wife. They joined the passengers in chasing the Appellant. Eventually, he was arrested and handed over to the Police. PW2 personally disarmed the Appellant and handed over the weapon to the Appellant’s relative.
Under cross-examination, he stated that they met the Appellant at Dantuba village and the passengers on that vehicle told them that the Appellant killed his wife. PW3 was Auwalu Audu. He testified that they were returning to their village after attending a ceremony in another village when they saw the Appellant who asked them for some water to drink. They got some water at another village called Kwandagora and continued their journey. A vehicle drove past them and returned wherein the Appellant advised that they should run but he and his friend refused to run.
The Appellant ran away and PW2 picked the machete the Appellant dropped. The passengers on the vehicle asked if they saw a young man and they replied in the positive and told them that he has ran away. They pleaded with PW3 and PW4 to assist them in arresting him and the Appellant was eventually arrested at Rukutu village. They were then taken to Police station where the Appellant was detained. Under cross-examination, he stated that the Appellant was frightened when he saw that vehicle and asked us to run away and he might have his reasons for running away. PW4 was Maimuna Musa.
She testified that she knows the Appellant and she said she talked to the deceased about a boyfriend. She then went out and didn’t know what happened afterwards. PW5 was Isah Usman. He testified that he was sitting at home when he was informed what happened and before they could reach the scene everything was over, the corpse was taken to the hospital and they were told to go back home and later to return to pick the corpse. They were asked to go to Dutse for further investigation. PW6 was Musa Yerima.
He testified that on 24/05/2011, he was sleeping in his house when he heard the deceased screamed. He didn’t know what happened between the Appellant and the deceased so he rushed to their house and found the deceased lying and groaning as if she was about to die. He held her and asked what happened but she could not speak. When he discovered that she was dead he asked his wife to call a neighbour who upon seeing what happened to the deceased left for Babura town. The village head was informed and he went to the scene together with Police officers who took the corpse to the hospital.
PW7 was Cpl. Nuhu Barnabas, a Police officer. He testified that he recorded the extra-judicial statement of the Appellant in Hausa language and later translated same into English language. The Appellant signed it and he was taken to a superior officer wherein he confirmed to be the maker. He also recovered a cutlass from the Appellant. He tender the statement of the Appellant, cutlass and a wrapper which were all rejected. Now, on the evidence adduced at the trial Court, the Appellant was found guilty and convicted accordingly.
The Appellant’s Counsel argued two main points in this appeal in urging the Court to quash the conviction and set aside the sentence. Firstly, he contended that the conviction of the Appellant based on circumstantial evidence cannot stand as the evidence is not strong and compelling and secondly, he argued that the trial Court ought to have accepted the Appellant’s defence of alibi. What constitutes culpable homicide has been stated under the Provision of 220 of the Penal code. The section provides that:- 220.
Whoever causes death – (a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or; (b) by doing an act with the knowledge that he is likely by such an act to cause death; or (c) by doing such rash or negligent act, commits the offence of culpable homicide. From the above, whoever causes death by doing any act with the intention of causing death or bodily injury as is likely to cause death or with knowledge that his act is likely to cause death or by doing such a rash or negligent act commits the offence of culpable homicide.
It must be noted that whether culpable homicide is punishable with death depends on the manner it was committed. The provision of Section 220 of the Penal Code encompasses in its definition both culpable homicide punishable with death and culpable homicide not punishable with death. The Appellant was charged and convicted under Section 221 (b) of the Penal Code.
It provides thus:- 221 Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death … a. … b. if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or any bodily injury which the act was intended to cause.
For the prosecution to secure a conviction under the above Section, the following ingredients must be proved:- (a) that death of a human being has occurred; (b) that such death has been caused by the act of the accused; (c) that the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
See ABUBAKAR VS. THE STATE (2017) LPELR 43197, ABDULLAHI VS. THE STATE (2018) LPELR 44455, ISAH VS. THE STATE (2017) LPELR 43472, GALADIMA VS. THE STATE (2017) LPELR 43469 and AHMAD VS. THE STATE (2019) LPELR 47973. It is long settled that the burden of proof with respect to criminal offences is on the prosecution, that the prosecution must prove the guilt of the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused stands trial must be proved by the prosecution.
Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391 298, SABASTINE VS. THE STATE (2020) LPELR 50319 and GAWONI VS. THE STATE (2021) LPELR 55470.
The burden on the prosecution is not beyond every shadow of doubt for absolute certainty is impossible in our criminal jurisprudence except in certain exceptional situations. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case will be said to have been proved beyond reasonable doubt. This can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI V.
FRN (2019) 12 NWLR (PT 1686) 221 and PHILLIP V. STATE (2019) 13 NWLR (PT 1690) 209. The prosecution is at liberty to prove its case by calling eye witnesses to the commission of the offence or by circumstantial evidence or by confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO V. STATE (1986) 5 SC 94, ABIRIFON V. STATE (2013) LPELR 20804, GARBA V. FRN (2014) LPELR 24591 and MUSA V. STATE (2014) LPELR 22912. On the first ingredient of the offence, it is in evidence that Nana Zubba’u Musa is dead.
The evidence of PW1, PW5 and PW6 have all testified that Nana Zabba’u died. This evidence is not contested even by the Appellant either at the trial and in this Court. The law is well settled that where a piece of evidence was not denied, challenged, discredited or disparaged under cross-examination, the trial Court is entitled to believe and act on it. See OFORLETE V. STATE (2000) 12 NWLR (PT 681) 415 and SULEIMAN V. STATE (2015) LPELR 25726. Thus, the Respondent has proved the first ingredient of the offence of culpable homicide punishable with death.
On the second ingredient of the offence which is whether it was the act of the accused that caused the death of the deceased, the prosecution is saddled with the task of not only proving the cause of death, but that it was the accused that caused it. In OCHIBA VS. STATE (2011) LPELR 8245 AT 33 Adekeye, JSC held that:- “In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of events, the cause of death must be proved.
Where the cause of death is ascertained, the means between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversatorial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process, it must also produce vital witnesses to testify for the prosecution.” See OFORLETE V. STATE (SUPRA); UDOSEN V. STATE (2007) 4 NWLR (PT 1023) 125; OCHE V.
STATE (2007) 5 NWLR (PT 1027) 214; EKPOISONG V. STATE (2009) 1 NWLR (PT. 1122) 354 and ILIYASU V. STATE (2014) 15 NWLR (PT 1430) 245. As rightly argued by the Appellant’s Counsel, the evidence against the Appellant is circumstantial as there was no eye witness(s) to the commission of the offence. There is also no confessional statement tendered at the trial. The trial Court is only left with the evidence of prosecution witnesses and a medical report in Exhibit A.
The trial Court at P. 96 of the record of appeal held thus: I have carefully considered the material and relevant evidence of the prosecution tendered through PW2, PW3 and Pw6 as well as Exhibit A (the autopsy report on the victim) and I have found that in the circumstances of the death of the victim (the accused person’s wife) such evidence have irresistibly and unequivocally pointed at the accused person to have killed his wife on 24/05/2011 at about 1:30am that was the time PW6 an immediate neighbour of the victim and her husband discovered the deceased victim injured and in a speechless state in her matrimonial home with no one inside.
Now, circumstantial evidence is evidence of surrounding circumstances which by coincidence is capable of proving a proposition with high level of certainty and the accuracy or precision of mathematics. However, for a circumstantial evidence to ground a conviction in a criminal trial, it must be strong, compelling, cogent and unequivocal. In ANYASODOR V.
STATE (2018) LPELR 43720 AT 18, Sanusi, JCA held that: “… that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person who was responsible in committing the offence charged.” The circumstantial evidence must lead to an irresistible conclusion that the accused and no other did the act and as such the accused should be culpable for the offence charged.
The facts must be incompatible with the innocence or non-culpability of the accused and incapable of explanation by any reasonable hypothesis other than the guilt of the accused. See NWAEZE V. STATE (1996) 2 NWLR (PT 428)1, AKINMOJU V. STATE (2000) 4 SC (PT1) 64, DURWODE V. STATE (2000) 12 SC (PT1) 1, UBANI V. STATE (2003)4 NWLR (PT 851) 22 and OLADOTUN V. STATE (2010) 15 NWLR (PT 1217) 490.
Before a conviction for culpable homicide punishable with death can be achieved on circumstantial evidence, the fact of the death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Where circumstantial evidence points on different or many directions, a Court cannot convict an accused for the offence of murder or culpable homicide. See MAIGARI V. STATE (2010) 16 NWLR (PT 1220) 439 and OSUOHA V. STATE (2010)16 NWLR (PT 1219) 364.
For a conviction of an accused to be sustained, the circumstantial evidence relied upon by the Court to convict must have satisfied the following conditions:- (i) The evidence must irresistibly and unequivocally lead to the guilt of the accused. (ii) No other reasonable inference could be drawn from it. (iii) There must be no co-existing circumstances which could weaken the influence. All the above conditions must exist in any given case for a conviction of the accused to be sustained. See SHEHU V. STATE (2010) 8 NWLR (PT 1195) 112 and MAMMAN V. STATE (2015) LPELR 5963.
Now, the trial Court in its finding from Pp. 96 – 99 of the record of appeal seemed to have accepted the testimony of PW2, PW3, PW6 and also the contents of Exhibit A. PW6 is the Appellant’s neighbour and he stated that on 24/05/2011 at about 1:30am he heard screams coming from the Appellant’s house. He rushed to the house only to find the deceased groaning in a pool of blood. He alerted another neighbour who reported to the village head and the police were invited. The deceased was taken to the hospital. PW6 did not see anybody in the house apart from the deceased.
A manhunt was organised to look for the Appellant. Meanwhile PW2 and PW3 who were returning from Daudu Fulani settlement for a ceremony when they met the Appellant at Dantuba village. After exchanging greetings, the Appellant requested for water to drink and both PW2 and PW3 had no water to help him with. They continued their journey and were lucky to find water at kwandagora village. The accused was given water to drink. Then a vehicle went past them and turned. The Appellant according to PW3 became frightened and told them to run away before the vehicle could catch up with them.
Then when PW2 notice the Appellant’s behaviour after seeing the vehicle asked him “what have you done” and further told him that “if you are on the path of truth you should not run to any place”. Still, the Appellant took to his heels leaving behind his cutlass which was picked by PW2. The vehicle stopped and one of the passengers asked PW2 and PW3 if they had seen a young man and they replied that he ran away when he sighted their vehicle. The passengers pleaded with them to assist in apprehending the Appellant. They all apprehended the Appellant and handed him over to Police.
Meanwhile, the passengers had informed them that they were trailing the Appellant as he was suspected to have killed his wife. The trial Court found that the circumstantial evidence so far is strong and cogent against the Appellant.
The trial Court also considered the weapon found on the Appellant and compare same with the contents of Exhibit A and concluded thus: “I have found that the matchet found in possession of the accused person which was actually dispossessed from the hands by PW2 is consistent with the revelations about the type of wounds found on the deceased; victim’s neck as disclosed in Exhibit A autopsy report of the victim.” From the evidence adduced, it can be said that the Appellant fled his house after attacking the deceased, met PW2 and PW3 and requested for water to drink and as they were walking together they got to kwandagora village and found some water.
The Appellant could not even drink the water but had to be assisted by PW3 who had to push the water into his mouth. When a vehicle came past them, he became terrified and asked them to run away. They refused and he fled. He was later apprehended with the help of PW2 and PW3 and handed over to the police. Then a matchet was found by PW2 and PW3 in his possession. The medical report revealed that “fresh dead body with a deep cut on the anterior aspect of the neck. The carotid vessel, the trachea and some of the muscles of the neck were cut”.
There was evidence of excessive bleeding face severely pale. The cause of death is cardio respiratory interruption. These chain of events unbroken as they appear are enough to establish the cause of death of the deceased to be machete wounds inflected by the Appellant. Circumstantial evidence is as good and sometimes even better than evidence of witnesses. See UYO V. AG BENDEL STATE (1986) LPELR 3452 and MOHAMMED V. STATE (2018) LPELR 44704. The trial Court to my mind is right to hold that the cause of death of the deceased was the machete cut wounds inflected by the Appellants.
The respondent has proved the second ingredient of the offence of culpable homicide against the Appellant. The Appellant relied on the defence of alibi. It was during his evidence in chief, he testified that he was away from his village when the deceased was killed and he told the police who failed to investigate his alibi. The Respondent on the other hand argued that mere setting up of a defence of alibi without particulars is not enough. The word “alibi” is derived from Latin and it simply means “elsewhere”.
In our criminal jurisprudence, when an accused person sets up a defence of alibi, he is in essence saying that he was elsewhere when an offence has been committed or he was not at the scene of the crime at the time of its commission. The defence is based on physical impossibility to place the accused person who was elsewhere at the scene of the crime at the time of the doing of the act constituting the crime. Once it is properly raised by the accused at the investigation stage, the police is duty bound to investigate same. See SANMI V. STATE (2019) 13 NWLR (PT 1690) 554, OPEYEMI V.
STATE (2019) 17 NWLR (PT 1702) 403, SALE V. STATE (2020) 1 NWLR (PT 1705) 205 and HARUNA V. KANO STATE (2020) LPELR 50869. The defence of alibi with its exculpating factor must be timeously raised and the accused must give a detailed explanation of his whereabouts at the relevant time. In EBRE V.
STATE (2001) 12 NWLR (PT 728) 617, Achike, JSC held that:- “We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeking that when properly established it has the far reaching finality of exculpating the accused person from complete criminal responsibility.
To take advantage of this defence, the accused person must give a particularization of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably be capable of investigation by the police should they wish to do so. A fair minded Tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person.
Furthermore, such defence must be timeously brought to the attention of the police by the accused person, preferably in his extra-judicial statement to afford the police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence.
Such a ploy cannot avail the accused, conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make believe of plea of that defence, and which are completely devoid of material facts working of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi.
For example where the accused person in his extra-judicial statement stated that either that he was not in town on that day or that he travelled to a neighbouring town or village and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.” The Appellant at the defense stage testified as DW1 and in his evidence, he set up the defence of alibi and further stated that he told the Police.
At p. 47 of the record of appeal, he stated thus:- “I told the Police that I was not at home when the incident that affect my wife occurred. The Police however continue beating me.
They beat me because I denied causing injuries to my wife.” The trial Court held on the defence of alibi, thus:- “On the defence of alibi raised by the accused person, I found same not sufficiently particularized and therefore unestablished as to require the prosecution to rebut or disprove same… that a defence of alibi must provide sufficient particulars as to the whereabouts of the accused person, who the accused is together with at the time of the commission of the offence which the accuse is charged with. Such defence must not be raised at large as in the instant trial.
The accused person only said he left his wife to attend a ceremony at Danuyawo village at 4:00pm. The accused person never revealed the people he was together with while he attended the ceremony. PW2 only informed the Court the accused informed him he is going to attend a ceremony. DW2 never witness or saw the accused person attend the ceremony.”
The above finding of fact is borne out of the evidence adduced. It is to be further noted that apart from non-particularization of the sequence of events in the Appellant’s defence of alibi, the evidence of DW2 which apparently was offered to strengthen the defence of the Appellant remained unhelpful to the cause of the Appellant. The DW2 never testified that he attended the ceremony and saw the accused.
Apart from the mere assertion that the Appellant told him he was travelling for a ceremony, there was nothing to the evidence of DW2 and even that assertion cannot in my view be significant enough to strengthen the defence of alibi. Interestingly, two Police officers who were involved in the investigation of the case both at the Divisional level and at the C.I.D. officers testified as PW1 and PW7 respectively. The Appellant’s Counsel however did not deem it fit to cross-examined them on the issue of alibi.
This fact alone, suggests that the defence was never raised at the earliest possible time ie during arrest and investigation. By raising it during his defence, it seems this Court is entitle to hold that it is an afterthought. In any event, the trial Court rightly found that even if the Appellant had set up the defence at the earliest opportunity to the Police, he did not particularize his whereabout on that day to give the Police a lead to work on. Thus, the defence of alibi was not properly set up and the trial Court rightly rejected same.
Now on the third ingredient of the offence which is knowledge of the doer of the act that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause. Whether death in this circumstance was the probable or only a likely consequence of an act or of any bodily injury is a question of fact.
The law is well settled that a man intends the natural consequences of his action and where it is shown that the accused knew or had reason to know that death would be the probable and not only a likely consequence of his act or of any bodily injury which the act was intended to cause, then the accused must be held culpable. See NWOKEARU VS. THE STATE (2010) 15 NWLR (PT. 1210) 1, NJOKU VS. THE STATE (2013) 2 NWLR (PT. 1339) 548 and AHMAD VS. THE STATE (2019) LPELR 47973.
To prove this last ingredient of the offence, direct oral evidence is a near impossibility. However, the Courts are enjoined to draw inferences from the surrounding circumstances of each case and in so doing the Court will look at the following:- i. The nature of the weapon used in making the assault; ii. The weight and size of the weapon used; iii. The part of the body hit; and iv. The size of the accused and the victim of the assault. See UMARU GWADU VS. GWANDU NA (1961) ALL NLR 545, ALIYU VS. THE STATE (2015) LPELR 40382, ALI VS. THE STATE (2015 LPELR 24711, AKITSE VS.
THE STATE (2015) LPELR 24584 and ATTAH VS. THE STATE (2019) LPELR 48287. In the case at hand, the medical report, stated the nature of the wound inflicted on the deceased, the part of the body injured i.e the neck of the deceased which is very delicate part of the body, the injury itself which is a deep cut on the anterior aspect of the neck severing the carotid vessel, the trachea and some muscles of the neck resulting in excessive bleeding. The Appellant ought to know or must have reason to know that death would be the natural consequences of his action.
A fortiori, even where the intention is to cause bodily injury and death results, then the Appellant must be held responsible for the crime. See AFOSI VS. THE STATE (2013) 13 NWLR (PT. 1371) 329, GIRA VS. THE STATE (1996) 4 NWLR (PT. 443) 375 and FOLARIN VS. THE STATE (1995) 1 NWLR (PT. 371) 313. The trial Court is right in holding that the Respondent proved beyond reasonable doubt that the Appellant caused the death of the deceased with the knowledge that such act will result in the death of the deceased. I find no reason to disturb the trial Court’s finding.
In conclusion, the only issue for determination is hereby resolved against the Appellant and in favour of the Respondent. This appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in case No. JDU/002/C/2011 is hereby affirmed. The Appellant’s conviction and sentence are hereby affirmed as well.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal.
I agree with the reasoning and abide by the conclusions reached therein. This appeal arose out of a criminal trial. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts.
Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. However, it must be understood that proof beyond reasonable doubt is “not proof to the hill” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice.
Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable – Shola Vs State (2020) 8 NWLR (Pt. 1727) 530.
In other words, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461. The Appellant was charged with culpable homicide punishable with death.
He was alleged to have, on or about the 24th of May, 2011 at Nabai, Fulani Settlement in Babura Local Government Area of Jigawa State, killed his wife, Nanazabau Musa, by cutting her on the neck and throat with a machete and as a result of which she sustained severe injuries which caused her death.
It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died, (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect.
Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Abbas Vs People of Lagos State (2019) 16 NWLR (Pt 1698) 213, Okere Vs Inspector General of Police (2021) 5 NWLR (Pt 1770) 537, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157.
It is also settled law in our criminal jurisprudence that the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged.
Any one of the methods is sufficient. See Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. It is not in contest that the person referred to in the charge against the Appellant, his wife, Nanazabau Musa, is dead. The cause of death is also disputed; it was cardio respiratory interruption brought about by excessive bleeding resulting from a deep cut on the anterior portion of the neck severing the carotid vessel, the trachea and some muscles of the neck.
This was confirmed by the medical report of cause of death, Exhibit A. It is obvious from the notes of evidence that the Respondent placed premium of circumstantial evidence in proving the guilt of the Appellant and that it was on the basis of the circumstantial evidence led that the lower Court convicted the Appellant.
It is trite law that where the prosecution relies on circumstantial evidence to prove the guilt of an accused person, the circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused person committed it. The circumstantial evidence that entitles a Court to convict an accused person is one devoid of other co-existing circumstances, which create doubt in the Court’s mind, and makes the inference that the accused and no other person is the guilty party.
The evidence must allow only one and only one inference from it; that the accused person alone committed the offence. The facts upon which the prosecution relies must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt – Omoregie Vs State (2018) 2 NWLR (Pt 1604) 505, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107, Nwalu Vs State (2018) 14 NWLR (Pt 1638) 158, Esseyin Vs State (2018) 14 NWLR (Pt 1640) 491, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
The first prosecution witness, the first Investigating Police Officer, testified that upon the arrest of the Appellant, he interviewed the Appellant and recorded his statement and that the Appellant confessed to him that he killed the deceased by using a cutlass on her and that this was because the deceased was always questioning his late night movements.
The witness testified that the Appellant stated that on the particular day in question, the deceased questioned him about his late night return home and he told her that he was coming from his parent’s house but she did not believe him and the deceased told him that if he was looking for another wife, he should divorce her and to which he responded that he cannot bear seeing her married to another man and that he picked his cutlass and struck her down.
It is settled law that the evidence of an Investigating Police Officer of information and discoveries made in the course of his investigation and interrogation of the accused person and witnesses is admissible as direct evidence as the outcome of the Investigation and does not amount to hearsay evidence – Kamila Vs State (2018) LPELR-43603(SC), Offiong Vs State (2020) LPELR-49574(CA), Garba Vs State (2020) LPELR-51375(CA).
The evidence of the first prosecution witness was thus admissible evidence. The evidence was not disparaged, discredited or challenged under cross-examination and it was thus credible evidence that could be acted upon – Olude Vs State (2018) LPELR-44070(SC), Lanre Vs State (2018) LPELR-45156(SC), Daniel vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR-49518(SC).
Now, a read of the evidence shows that it amounted to an oral confession made by the Appellant. It is trite law that oral confession is as potent as a written confession and can ground the conviction of an accused person – Arogundade Vs State (2009) 6 NWLR (Pt 1135)165, Jua Vs State (2010) 4 NWLR (Pt 1184) 217, Matthew Vs State (2018) LPELR-43716(SC). It was the case of the Respondent that the Appellant ran away from the scene of crime with the machete used in carrying out the attack.
The second and third prosecution witnesses testified that they were on their way back from a ceremony at Daudu Fulani Settlement when they met the Appellant and who requested for water to drink and that they sourced waver for him and assisted him to drink it.
They gave evidence that they continued their journey and that upon sighting a vehicle coming their way, the Appellant asked that they should all run away but they refused to run, asking why the Appellant was running if he was on the path of truth. They testified that when the vehicle reached where they were, the passengers said they were looking for the Appellant as he had killed his wife and that they joined them in chasing and arresting the Appellant and that it was the second prosecution witness that disarmed the Appellant of the machete.
The evidence of the two witnesses were also not disparaged, discredited or challenged under cross-examination. When the oral confession made by the Appellant to the first prosecution witness is coupled with the evidence of the second and third prosecution witnesses and the contents of the medical report of cause of death, they constitute circumstantial evidence which point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the Appellant committed it.
In meeting the case of the Respondent, the Appellant raised the defence of alibi, that he was attending a ceremony at Danuyawo Village at the time of the incident.
The law is that for the defence of alibi to avail an accused person, the law requires that it is raised timeously and should stare the full particulars of the accused person’s whereabout at the material time the offence was committed and that the information describing the location must be with exact precision so as to allow the police easy investigation for purpose of confirming the claim made by the accused – Mohammed Vs State (2014) LPELR-22916(SC), Sani Vs State (2015) LPELR-24818(SC), Adebiyi Vs State (2016) LPELR-40008(SC).
Where the defence is not raised timeously by an accused person and with full particulars of his whereabout, the defence will fail – Esene Vs State (2017) LPELR-41912(SC), Ikumonihan Vs State (2018) LPELR-44362(SC). The Appellant did not raise the defence timeously and he only did so in the course of his oral evidence at trial and he did not give exact particulars of his about.
The defence of alibi was thus not available to him. In the light of the above, I am unable to fault the finding of the lower Court that the Respondent made out a cogent and credible case in proving the charge against the Appellant beyond reasonable doubt. I too agree that there is no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Suit No. JDU/02/C/2011 by Honorable Justice M. A. Sambo on the 31st of October, 2013 together with the conviction of and the sentence passed on the Appellant.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother ABUBAKAR MU’AZU LAMIDO, JCA obliged me the draft of the leading judgment delivered by him just now. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. I abide by the consequential orders made therein.
Appearances
OKERE v. IGP
On Friday, February 19, 2021
SC.839/2018Before Their Lordships
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
Judgment
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): This appeal No. SC.839/2018 was commenced on 23 April, 2018 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 16 March 2018 in appeal No. CA/PH/21CR/2015 concurring with and affirming the judgment of the High Court of Rivers State sitting at Port Harcourt delivered on 29 May, 2014 in criminal case No. BHC/40CR/2007 convicting the appellant of the offences of conspiracy to commit murder and murder and sentencing him to death by hanging on the neck.
The notice of this appeal contains three grounds for the appeal. Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised three issues for determination as follows: 1. Whether the Court of Appeal was correct when their lordships held in their judgment that the appellant’s alibi does not avail the appellant? (Ground 3 of the notice of appeal). 2. Whether PW1 and PW2 the alleged eye witnesses gave convincing and credible evidence to predicate the conviction of the appellant? (Ground 2 of the notice of the appeal). 3.
Whether the prosecution by the available evidence proved the guilt of the appellant beyond reasonable doubt? (Grounds 1 and 4 of the notice of appeal). The respondent’s brief also raised three issues for determination as follows: 1. Whether the learned justices of the Court of Appeal were right to hold that in the circumstances of this case, the defence of alibi does not avail the appellant? (Distilled from ground 3 of the notice of appeal) 2.
Whether the learned justices of the Court of Appeal were right in upholding the decision of the trial Court that there were no material contradictions in the eyewitness accounts of the PW1 and PW2 such that the prosecution could not be said to have proved the offence of murder against the appellant? (Distilled from grounds 1 and 4 of the notice of appeal). 3.
Whether the learned justices of the Court of Appeal were right when they affirmed the decision of the trial Court that the evidence adduced by the prosecution sufficiently proved the guilt of the appellant beyond reasonable doubt? (Distilled from grounds 1 and 4 of the notice of appeal).
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
I will determine all the issues together as they all deal with the evidential basis for the conviction of the appellant.
I have carefully read and considered all the arguments in the respective briefs on these issues.
Before I delve into the determination of the merit of the above issues, let me state that there is no ground of this appeal complaining against the decision of the Court of Appeal concurring with the decision of the trial Court that the contradictions which the appellant contend exists between the testimonies of PW1 and PW2 were not material as they did not impact on the substance and ingredients of the offences of which the appellant was convicted. By not appealing against this concurring decision, the appellant accepted it as correct, binding and conclusive.
It is trite law that a finding, holding or decision not appealed against is accepted by the parties to the case in which it is made as correct and conclusive on what it decides and is binding upon them. See Iyoho v. Effiong (2007) All FWLR (Pt. 374) 204, (2007) 4 SC (Pt. III) 90 and Dabup v. Kolo (1993) 12 SCNJ 1. Having accepted the decision that the contradictions are not material, it is obviously futile to argue in this appeal that the decision of the Court of Appeal that there were no contradictions in the evidence of PW1 and PW2 is wrong.
Such an argument, assuming it is valid, would have no effect on the judgment of the Court of Appeal, since the appellant has accepted its decision that the contradictions are not material.
It is trite law that it is not every contradiction in evidence that is fatal to a case and that a contradiction would be material if it is on the main issues in question before the Court or is on the evidence that establish any ingredient of the offence. A contradiction not on a main issue in question before the Court or not on the evidence that establish any ingredient of the offence is immaterial and go to no issue and cannot vitiate the decision of the trial Court. See Dibie & Ors. v. The State (2007) All FWLR (Pt. 363) 83, (2007) 3 SC (Pt. I) 176; Dagayya v.
State (2006) All FWLR (Pt. 308) 1212, (2006) LPELR – 912 (SC); Akpabio v State (1994) LPELR – 369 (SC) and Ndike v. State (1994) LPELR – 1971 (SC). An appeal on the ground of contradictions in the evidence elicited by a party to a case cannot succeed merely because some contradictions are shown to exist. The appeal can only succeed if it is shown that the contradictions are material.
So the appellant having as correct the concurrent finding of the Court of Appeal that the contradictions are not material by not appealing against the finding, his contention in this appeal that they are contradictions between the testimonies of PW1 and PW2 is a futile exercise. The prosecution elicited evidence through PW1, PW2, PW3, PW4, and PW5 and exhibit 11, the extra-judicial statement of the appellant to prove that the appellant and others conspired to murder Apostle Elijah Andrew Okeeke and did murder him in his house in the evening of 3 December 2006.
PW1 and PW2 gave direct and positive evidence that they were present in the house of the deceased house when the appellant and his co-accused and others at large came there armed with machetes and a gun, inflicted matchet cuts on the deceased killing him and carried his corpse to an unknown destination. The appellant testified for himself as DW5 to rebut the case established by the evidence of the prosecution against him and put up a defence of alibi stating that “I know Andrew Elijah Okeeke, he is from my community. I am from Baaloore Community in Khana Local Government Area.
I do not know if the said Andrew Elijah Okeeke is still living and I did not conspire with the other accused persons or anyone to kill him. I did not also kill the said Elijah Andrew Okeeke. I remember 3 December 2006. I was in Bori with my family. On 3 December 2006, it was a Sunday, I was in my house at Bori with my family about 2 0’clock in the afternoon when one of my neighbor called me that his brother was badly sick and their parents are not at home; I should help him by using my car to take his brother to a clinic in Bori.
The doctor asked me to deposit some money and I was not with enough money so I carried the patient back. On my way going, I stopped at pharmacy to get some drugs I could afford for the sick person. On my way going back to the house, Chief Lenee Okere called me from the village, that there was a set of boys led by Fyneboy Silas, Barisuka Andrew and others who are on amnesty today that came to the community where they are and was chasing them, that they should help by giving me some armed men that will go to the community and rescue the situation.
The police officer said he could not sign for any police man, that both the DPO and DCO were not in the office to do that. I asked him what I could do to see the DCO, he now gave me one woman police to take me to the DCO’s house within the police barrack. When I got there the DCO was not in. I waited in the police station after some time the DCO came into the barrack and I met him and told him the information I got from my place. He took me to the policeman at the counter that he should detail some policemen to go with me to the village and he left.
The policeman on duty at the counter asked me to explain what happened so that he could record. When I explained to him that they said one Tambari Aziaka has been caught he said he will not book any policeman to go with me until the person caught in the village comes to the station to make his statement. The policemen who were prepared following DCO’s order refused to go with me that if the police on counter did not book them they cannot go outside the station. While I was still talking with them Chief Lenee called again that they were coming to the station with Tambari Aziaka.
I waited and did not see them and I left. I got to my house and called the SSS officer in charge of Bori Division and I told him the information I got from my place. He said he would find out on Monday the following morning. On Monday morning they called me that my father was kidnapped by the same boys.
After some days my father was released.” His testimony in chief restates the alibi he raised in his pre-trial extra-judicial statement, Exhibit 11, which alibi the investigating police officers did not bother to investigate because the extra-judicial statements of PW1 and PW2 that they saw him among the persons that came to the deceased house after 7pm in the evening of 3 December 2006, inflicted several machete cuts on him and PW2, killed him took his corpse away.
The trial Court considered his plea of alibi thusly – “The 5th accused in his statement to the police and in his evidence-in-chief stated that he was in his house in Bori on Sunday afternoon when a neighbor pleaded with him to assist and take him (the neighbor) to a nearby clinic.
He took the neighbor to the clinic, thereafter he was called on telephone by the 3rd accused, that cultists were performing in their community and he quickly went to Bori Police Station to make a complaint and to take some police officers to the community but he did not succeed in making the complaint or taking any police officer to his community. From his evidence, he remained at the Bori police station till 9:00pm.
From the statement of the 5th accused to the police (exhibit 11) the only reason the 5th accused went to the police station at Bori, where he claimed he was up until 9.00pm, was because of a telephone call he received from the 3rd accused (DW3 – Chief Lenee Okere) his brother. For clarity let me reproduce the statement of the 5th accused in this regard.
It reads: “I got a call from home by Chief Lenee Okere that Fineboy Sunday, Aanu Naatam… came home with guns, machete and dangerous weapons and they have cut one Tambari Aziaka and that they are looking for me the honourable to kill as councilor representing the area, I ran to Bori police station to report.”…<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Meanwhile, Chief Lenee Okere, 3rd accused in his own statement to the police cataloged what happened on 3 December 2006 afternoon and how he went to the Royal Highness at Okwere, Chief Gbarakoro Nwigo of Okwere to report what had happened in their police station to make a report.
The 3rd accused never said, both in his statement to the police and before this Court, that he called his brother the councilor (5th accused) to report what had happened in their community on 3 December 2006 neither did he say that the cultists said they were looking for the 5th accused.
Under cross-examination, the prosecuting counsel asked the 5th accused thus: Q. You were in Court when 3rd accused gave evidence A. Yes Q. Will it surprise you to hear that the 3rd accused never said in his evidence that he called you and reported any incident to you? A. I may not remember. The question I ask is, if the 3rd accused never called the 5th accused on telephone on 3 December 2006 to report cult disturbances at Baalore to him, what took the 5th accused to Bori police station where he said he was, till 9.00pm.
From the evidence of PW1 and PW2, the deceased was murdered at about 7.00pm which means that the 5th accused was allegedly at Bori Police Station when the deceased was murdered.
I must point out that the 5th accused stressed in his statement to the police (exhibit 11) that Chief Lenee Okere (3rd accused) called him on phone, he recounted how he was on telephone with Chief Lenee Okeke (3rd accused) while at Bori Police Station but only left the police station about 9.00pm after the 3rd accused called him on phone and told him he was coming to Bori Police Station with Tambari Aziaka, who was allegedly injured by the cultists, meanwhile, the 4th accused (Kingdom Okere) whom the 5th accused never mentioned in exhibit 11, said in his own statement to the police (exhibit 10) that he met the 5th accused reporting the incident to the police at Bori Police Station.
For ease of reference, I have hereunder reproduced the relevant statement of the 4th accused, Kingdom Okere. On the 3 December 2006… I saw a group of boys by name Fineboy Silas…and others coming towards my compound. I ran to junction where I saw Tambari Aziaka cut by these same cult boys, I took motorcycle to Bori Police Station where I met my brother Goodluck Okere reporting the same matter to police.
The prosecution has through PW1 and PW2 adduced evidence of crime at the material time the 5th accused and indeed the 3rd and 4th accused said they were not in Baalore, therefore, I find that the plea of alibi by the 3rd, 4th and 5th accused persons, which is contradictory, has been logically demolished.
I will not go to the next issue, which as I said earlier is the most important because it is the duty of the prosecution to prove its case against the accused person.” Concerning the testimonies of all the accused persons on their alibi, the trial Court found as a fact that “the testimony of the accused persons is replete with inconsistencies, contradictions and absolutely unreliable. I do not believe their testimony… all the accused persons failed to account for their whereabouts on the evening of 3 December 2006 when the deceased was murdered.
“On the contention of defense counsel that the police failed to investigate the alibi set up by the accused persons, I hold that the accused persons never properly raised the plea of alibi, stating exactly where they were. Besides, as stated earlier, the unimpeachable evidence of PW1 and PW2 linking the accused persons with the murder of the deceased logically and physically demolished their defence of alibi.”
I believe the prosecution has proved the commission of the crime beyond reasonable doubt through PW1 and PW2. Even though the said PW1 and PW2 are sister and daughter respectively, of the deceased, I hold that they can be believed despite their relationship with the deceased. See Ochemaje v. State (2008) All FWLR (Pt.435) 1661, (2008) 15 NWLR (Pt. 1109) 57.
However, in accepting the evidence of PW1 and PW2, I am mindful of their relationship with the deceased. The evidence of the accused persons to distance themselves from the murder of the deceased did not in any way controvert or withstand the evidence of PW1 and PW2 whom I saw and carefully watched their demeanor during the proceeding, they impressed me as sincere witness. I believe PW1 and PW2 actually saw the accused person kill the deceased. On the contrary, the accused persons did not impress me as honest persons.
The impression the accused persons made of themselves is that they are not truthful witnesses. Their testimony is a bundle of lies.
From the totality of all I have said in this judgment, I hold that the prosecution has proved beyond reasonable doubt that the accused persons and others now at large on 3 December 2006 at Baalore community in Bori Local Government Area of Rivers State, conspired to kill and actually killed Apostle Elijah Okeeke Andrew by inflicting several machete cuts on him.”
The trial Court considered the totality of the evidence adduced by both sides and found that: “I believe the prosecution has proved the commission of the crime beyond reasonable doubt through PW1 and PW2. Even though the said PW1 and PW2 are sister and daughter respectively, of the deceased, I hold that they can be believed despite their relationship with the deceased. See Ochemaje v. State (2008) All FWLR (Pt. 435) 1661, (2008) 15 NWLR (Pt. 1109) 57. However, in accepting the evidence of PW1 and PW2, I am mindful of their relationship with the deceased.
The evidence of the accused persons to distance themselves from the murder of the deceased did not in any way controvert or withstand the evidence of PW1 and PW2 whom I saw and carefully watched their demeanor during the proceeding, they impressed me as sincere witnesses. I believe PW1 and PW2 actually saw the accused persons kill the deceased. On the contrary, the accused persons did not impress me as honest persons. The impression the accused persons made of themselves is that they are not truthful witnesses. Their testimony is a bundle of lies.
From the totality of all I have said in this judgment, I hold that the prosecution has proved beyond reasonable doubt that the accused persons and others now at large on 3 December 2006 at Baalore community in Bori Local Government Area of Rivers State, conspired to kill and actually killed Apostle Elijah Okeeke Andrew by inflicting several machete cuts on him”. The Court of Appeal concurred with the above findings and holding of the trial Court and held that it had no reason to doubt the said holding nor to interfere with the findings of the trial Court and that the trial Court was right in convicting the appellant based on the evidence of PW1 and PW2.
There is no ground of this appeal complaining against the judgment of the Court of Appeal affirming the decision of the trial Court believing the testimonies of PW1 and PW2 and disbelieving the testimony of the appellant. By not appealing against the failure of the Court of Appeal to reverse the said decision, the appellant accepted the decision as correct, conclusive and binding upon him.
Having accepted that the trial Court correctly believed the testimonies of PW1 and PW2 and correctly disbelieved the testimony of DW5, it becomes futile to argue that the evidence elicited by the prosecution did not prove the guilt of the appellant beyond reasonable doubt. It is glaring that the trial Court determined the case before it on the basis of its finding on the demeanor and credibility of the witnesses before it. The Court of Appeal concurred with the said finding.
This Court has no power to interfere with the decision of the Court of Appeal concurring with the finding of the trial Court that listened to the witnesses testify, observed their demeanor and considered the totality of the circumstances of the case in believing or disbelieving the witnesses, except where the belief or disbelief is unreasonable and perverse as it is contrary to evidence before the Court. Fashanu v. Adekoya (1974) 1 All NLR (Pt. I) 35 and Ukaegbu & Ors. v. Nwololo (2009) LPELR – 3337 (SC).
The appellant in this case did not even contend that the belief of PW1 and PW2 and the disbelief of his testimony is contrary to the evidence.
In the light of the foregoing, I resolve issues 1, 2 and 3 in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is hereby dismissed.
NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment just delivered by my learned brother, Agim JSC and I agree that the appeal be dismissed for want of merit.
The appeal is against the finding of facts by the trial Court which finding was affirmed by the Court below.
The appellant cannot succeed in his appeal against the concurrent findings of facts by the two Courts below unless he can show that there is no sufficient evidence to support the said findings. See Njoku & Anor. v. Eme (1973) 5 SC 293 at 306; Kale v. Coker (1982) 12 SC 252 at 271. This he failed to do. Also, the appellant failed to demonstrate any perversity in the judgment or a substantive error of law or fact or both which ought to be corrected to avoid a miscarriage of justice- See Yakeen Alabi Odonigi v.
Aileru Oyeleke (2001) All FWLR (Pt. 42) 172, (2001) 84 LCRCN 658 at 583; Lokoyi & Anor. v. Olojo (1983) 8 SC 61 at 68.
Appellant, in his statement to the police, raised and relied on a defence of alibi. The word “alibi” is of latin origin and means “Elsewhere” By his plea the appellant meant that he was present at a named location at the material time and could not have been at the locus criminis at the time the crime was committed – See Mohammed Chewmoh v. The State (1986) 2 NWLR (Pt. 22) 331 at 1, paragraph A; Udo Ebre & Ors. v. The State (2001) All FWLR (Pt. 59) 1244, (2001) 88 CRNC 2144 at 2153.
It is the duty of the police to investigate the veracity vel non of the alibi pleaded by an accused. See Odili v. The State (1977) 4 SC.
However in this appeal, two eye witnesses PW1 and PW2 who witnessed the crime placed the appellant at the scene. Appellant cannot be at two places at the same time. Both Courts below believed the evidence by PW1 and PW2 to the effect that the appellant was at the scene of, and committed the crime. There is no way he can be at one place and be seen by two witnesses committing the crime at another place and time. In effect, appellant could not sustain the plea of alibi even though he is required to prove same by a balance of probabilities and not beyond reasonable doubt – See Bello v.
C.O.P. (1959) WRNLR 124.
For the above and the fuller reasons in the lead judgment I also dismissed the appeal. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: I have in draft the judgment of my learned brother, Emmanuel Akomaye Agim JSC just delivered and I am in total agreement with him that there is no merit in this appeal and it deserves an order of dismissal. Both the trial Court and the Court below have agreed that the appellant was one of those who murdered the late Apostle Elijah Andrew on 3 December 2006 at Baa -Lorre community in Bori Local Government Area of Rivers State.
The defence of alibi raised by the appellant was roundly rejected by two Courts below. The dastardly act took place in the glare of the sister of the deceased, Hannah Andrew (PW1) and the daughter of the deceased Joy Andrew (PW2) both of whom were seated in the house of the deceased and were discussing before the appellant and the other assailants barged in and gruesomely murdered the deceased.
Although the appellant raised a plea of alibi in his extra- judicial statement i.e. exhibit II, he failed to furnish adequate particulars to the police at the earliest opportunity. See Ibrahim Adeyemi v. The State (2017) LPELR – 42584 (SC); Njovens & Ors. v. The State (1973) 5 SC (Reprint) 12, (1973) All NLR 371.
Alibi, simply put, means “elsewhere”. By the defense, the accused person claims or says that he was in a place other than the scene of crime. It is a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time. See Ochemaje v. State (2008) All FWLR (Pt.435) 1661, (2008) 15 NWLR (Pt. 1109) 57. Let me state here that it is not the law that, when a plea of alibi is raised, the accused person is free from the allegation.
The immutable position of our criminal jurisprudence is that the plea of alibi is defeated where evidence abounds that fixes an accused person not only at the scene of crime but also establishes the fact of his participation in the crime. In the instant case, the PW1 and PW2 were eye-witnesses to the commission of this crime and recognised the appellant as one of the assailants who hacked the deceased to death. The learned trial judge accepted the evidence of these two witnesses as cogent and credible. He however rejected the wishy washy plea of alibi put forward by the appellant.
The Court below accepted and affirmed the position taken by the trial Court. I accept the concurrent findings of the two Courts below on the issue. The evidence of PW1 and 2 fixed the appellant to the scene of crime as a participant in the killing of their brother and father respectively. The alibi was logically, effectually and physically demolished and crushed. See Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; Segun Adebiyi v. State (2016) All FWLR (Pt. 827) 739, (2016) LPELR – 40008 (SC); Iliyasu v. State (2015) All FWLR (Pt. 793) 1961, (2015) 11 NWLR (Pt. 1469) 26 at 59 – 60.
From all I have endeavoured to say above and the more elaborate reasons adumbrated in the lead judgment aforementioned, I hold that this appeal is devoid of any scintilla of merit and is also dismissed by me. I affirm the judgment of the Court below. Appeal dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have read, before now, the draft of the judgment just delivered by my learned brother, the Hon. Justice E. A. Agim JSC. I concur with the reasoning postulated therein, to the conclusive effect that the present appeal lacks merit thus liable to be dismissed.
Undoubtedly, the three issues raised by the appellant and respondent in the respective briefs of argument thereof are not at all mutually exclusive of the three issues in question, the issue No. 3 raises the most pertinent question: “3. Whether the prosecution by the available evidence proved the guilt of the appellant beyond reasonable doubt?”
The said issue No. 3 is predicated upon grounds 1 and 4 of the notice of appeal. The appellant’s argument on issue No. 3 is contained at pages 9 – 12 (paragraphs 3.25 – 3.34) of the brief thereof. In the main, the appellant heavily relied upon exhibit 9 (appellant’s extra-judicial statement to the police), to the effect the appellant has maintained:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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[T]hat a rival cult group cut one Tambari Aziaka with machete. The 4th accused person Kingdom Okere in his statement to the police exhibit 10 maintained that a rival cult group to which the son of the deceased Barisuka Andrew belonged attacked one Tambari Aziaka. That it was Tambari Aziaka’s cult group that killed the deceased, who is the father of Barisuka in retaliation.
The law is trite, that a Court of law is under an onerous duty to consider any available defense to a defendant deciphered (disclosed) in evidence before the Court in the course of the trial. Undoubtedly, a Court would be abdicating this fundamental responsibility if it declines to consider a defence because it is stupid, unreasonable, improbable or unfounded. This duty is indeed placed upon the trial Court whether or not it is raised by the defendant or the counsel thereof in the course of the trial. See Yaro v. The State (2007) 18 NWLR (Pt. 1066) 215, (2008) All FWLR (Pt. 397) 1. Shalla v.
The State (2007) 18 NWLR (Pt. 1066) 240.
Contrary to the appellant’s submission at paragraph 3.28 of the brief thereof, exhibit 10 is to the effect that the 4th accused person (Kingdom Okere) had in exhibit 10 (4th accused person’s extra-judicial statement to the police) stated inter alia: “According to information, I was told that it was the community youths who were supporting my late brother that the youths killed the pastor Andrew Okeere because of his son Barisuka who among the cult groups that attacked Tambari… Apart from this information I heard, I was not present when the pastor Andrew Okeere was killed.
See pages 33 – 34 of the record.”
Curiously, the source or identity of the appellant’s information remains a mystery.
Nor was the actual name of the cult association mentioned in the exhibit disclosed, what is more, the details and specific names or identities of the community youths that allegedly killed the deceased, had not been provided, with a view to enabling the police authority to search and track them. The Court below in the vexed judgment has made some far-reaching findings, to the following effect: “The eye-witness accounts of PW1 and PW2 clearly fixed the appellant at the scene of crime at the material time… Also, on the argument on the eye-witnesses being blood relations of the deceased is baseless and spurious since there is no law in Nigeria prohibiting them from testifying.
In the end and in the light of the reasons I have given above I find this appeal unmeritorious and hereby dismiss the same. The judgment of the lower Court delivered on 29 May, 2014 convicting the appellant for conspiracy to murder and murder of Apostle Elijah Okeeke Andrew and sentencing him to death is hereby affirmed.”
I have no iota of doubt in my mind that the foregoing conclusive findings of the Court below are cogent, unassailable, and duly supported by the evidence on record.
Hence, having concurred with the detailed reasoning and conclusion reached in the leading judgment, just delivered by my learned brother, Agim JSC, I too unhesitatingly hereby dismiss the instant appeal for grossly lacking in merits. The judgment of the Court of Appeal, Coram T. N. Orji-Abadua, C. I. Jombo Ofo, and B. G. Sanga, JJCA, delivered on 23 March 2018, is hereby affirmed by me.
ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim JSC just delivered. I am in agreement with the decision and the conclusion contained therein.
The issues raised in the instant appeal have been sufficiently dealt with by my learned brother in the lead judgment just delivered.
By way of addition, I am of the opinion that in the light of the eye-witness account of PW1 and PW2 fixing the appellant to the crime scene, the defence of alibi raised by the appellant was logically demolished and doomed to fail. Where credible evidence adduced by the prosecution fixes an accused person to the scene of crime, any merit contained in the accused’s defence of alibi becomes automatically extinguished. See Matthew Thomas v. The State (2017) LPELR – 41735 (SC); Victor Essien Victor v.
The State (2013) LPELR – 20749, (2014) All FWLR (Pt. 719) 1092 . Also, assuming but without agreeing that the appellant’s complaint about the contradiction contained in the testimonies of PW1 and PW2 can be entertained by this Court in the absence of any ground of appeal challenging the decision of the Court below in this regards, I am of the view that the said contradictions pointed out by the appellant are not material enough to cast doubt on the guilt of the appellant and the Court below was right to have believed the said testimonies over that of DW5. See Golden Dibie & Ors. v.
The State (2007) All FWLR (Pt. 363) 83, (2007) LPELR – 941 (SC); Nicholas Wankey v. The State (1993) LPELR – 3470 (SC); Eze Ibeh v. The State (1997) LPELR – 1389 (SC). In conclusion, by reason of the failure of the appellant to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court, I too, hold that the appeal lacks merit. Same is equally dismissed. Appeal dismissed.
Appearances
ONWUTA v. STATE OF LAGOS
On Friday, April 08, 2022
SC.667/2020Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Between
Judgment
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of appeal, Lagos Division or lower Court or Court below, delivered on the 27th day of July, 2020, Coram: Joseph Shagbaor Ikyegh JCA, Tijjani Abubakar JCA (as he then was) and Gabriel Omoniyi Kolawole JCA which affirmed the decision of the High Court of Lagos State delivered on the 25th day of January, 2018 per S.S. Ogunsanya J.
The trial High Court had found the Appellant guilty of the one count charge of defilement of a 16 month old baby who was left in his care when the mother went to take a shower which offence is contrary to Section 137 of the Criminal Code Ch. 17 Vol.3, Laws of Lagos State. Appellant was convicted and sentenced to 25 years imprisonment.
BACKGROUND FACTS The case of the Respondent was presented by PW1 – PW4. Nkiru Ezema (PW1) the victim’s mother, Sgt. Iyabo Olaniyan (PW2) the Investigative Police Officer from Idimu Division of Nigeria Police Force, Dr. John Ousegun Bankole (PW3) and Chidera Ozioko (PW4). The prosecution also tendered Eight (8) Exhibits P1-P8 which were all admitted in evidence. Exhibit P1- Statement of PW1, P2- Diaper stained with Blood, P3- Pant, P4- condom, P5- camera, P6- Medical Report, P7- Syringe, P8- Statement of the Defendant.
On the 19th October, 2016, PW1 was recalled for further cross-examination before the defence opened. The Defendant testified as DW1 and did not call any other witness or tender any exhibit.
The case of the Respondent was that on the 26th of November 2013 the survivor was a year and 4 months old and was taken by her mother to the Defendant’s room in his care in order to take her bath. That after she had her bath, that her daughter approached her pointing to her pant saying mummy “see see”. That she checked her daughter’s pant to discover blood in it; she immediately took her daughter to the health centre where she was informed that her daughter had been defiled. She made a report at the Police Station which led to the arrest of the Defendant.
That on the day in question it was only herself, her daughter and the defendant that were in the house and no other person than the Defendant could have defiled her daughter. The medical examination report of the victim admitted as Exhibit P6 revealed that the victim reported in the hospital within 48 hours of the incident with bruises on or around her vagina and a ruptured hymen. The hymen had been broken and bridged.
The medical Doctor testified as PW3 and confirmed that there were multiple bruises which indicated repeated and forceful trauma in the victim’s genitals. PW4- Chidera Oziko testified as per Statement she made in Exhibit P8, while being cross-examined, PW4 stated that she did not see the Defendant touch the victim as she was in the backyard washing clothes but confirmed that she saw PW1 when she came outside with the victim and said somebody had tampered with the victim. She also identified Exhibits P2 and P3.
In his defence, the Appellant testified that PW1 is a sister to him and that on the 26th November, 2013, between the hours of 10.30 and 11am, PW1 prepared breakfast and when he was lying down she brought her baby when she wanted to take her bath. DW1 stated that there were four people in the house; PW1 – Nkiru, his girl-friend, PW4 the house girl and himself. He stated that PW1 told him she was going to the health centre as she saw blood stain in the baby’s pant.
He further stated that a day before the incident that PW1 took her baby Favour across the street and his girl-friend noticed that the baby was crying. While being crossed-examined, he confirmed that he was with the baby when PW1 went to take her bath and that she was brought to him, PW1 did not complain that there was blood stain before she dropped the baby. It was when she noticed the blood stain that she woke him up and told him. He confirmed that on the day in question that his girl-friend was not with him in his room that the house girl PW4 was not with him in his room.
DW1 further stated that it was only the baby Favour and himself that were in the room and he did not witness the incident that occurred across the street the previous day as he was not at home.
On the 13th January, 2020, the date of hearing, learned counsel for the Appellant, Prof. Bankole Sodipo SAN adopted the brief of argument filed on 16/10/2020 and a reply brief filed on 24/9/2021 and deemed filed on 13/1/2022. He nominated three issues for determination viz:- 1.
Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police Officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollable from their neighbours’ house. This issue is derived from Ground One (1) of the Notice of Appeal. 2. Whether the Court of Appeal was right in holding that the contradictions in prosecution witnesses’ case was not fundamental enough to vitiate the conviction and sentence.
Grounds Two (2) and Four (4) of the Notice of Appeal. 3. Whether the Court of Appeal was right in holding that the prosecution witnesses were not confronted with the contradictions in their statements made to the police: Ground Three (3) of the Notice of Appeal.
Mrs. E.R. Agu, Deputy Director, Lagos State Ministry of Justice for the respondent presented two issues for determination, as follows:- ISSUE 1 Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police Officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollably from their neighbour’s house. (Ground 1 of the Notice of Appeal.
ISSUE 2 Whether the Court of Appeal was right when it held that the witnesses were not confronted with the contradictions in their statements to the Police and the said contradictions were not fundamental to vitiate the conviction and sentence of the Appellant. (Grounds 2, 3 and 4 of the Notice of Appeal).
I shall utilise the issues crafted by the appellant for ease of reference and together.
ISSUES 1, 2 & 3 1. Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollably from their neighbour’s house. 2. Whether the Court of Appeal was right in holding that the contradictions in prosecuting witnesses’ case was not fundamental enough to vitiate the conviction and sentence. 3.
Whether the Court of Appeal was right in holding that the prosecution witnesses were not confronted with the contradictions in their statements made to the police.
Learned Senior Advocate for the Appellant contended that the two Courts below were wrong to have held that the prosecution proved its case beyond all reasonable doubt when the defence of the Appellant that the offence was committed on the day in issue but ‘the previous day was not investigated and resolved. He cited Orji v. State (2008) 10 NWLR (pt. 1094) 31; Aiguoreghian & Anor v. State (2004) 3 NWLR (pt. 860) 367; Udosen v. State (2007) 4 NWLR (pt. 1023) 125; Adebiyi v. State (2016) LPELR 40008 (SC).
That the two Courts below failed to resolve the contradiction between the evidence of PW1 and PW4 as same related to the defence of the Appellant and therefore fatal to the prosecutions’ case. He referred to Ibeh v State (1997) LPELR- 1389 (SC).
Learned counsel for the Respondent submitted that the result of the medical examination was not controverted or challenged and so it should be taken as accepted by the Appellant and the Court would take it as credible. He cited Oforlete v The State (2000) 7 SCNJ 162 at 179; Magaji v Nigeria Army (2008) 8 NWLR (pt. 1089) 338. He Stated that the Respondent placed before the trial Court cogent and direct evidence, witnesses and exhibits which point directly to the Appellant as the person who committed the offence.
That the Appellant was fixed at the scene of crime and as such the defence of alibi would collapse. He cited Ezekwe v State (2018) LPELR – 44392 (SC).
That the apex Court should not interfere with the concurrent findings of facts of the two Courts below when there is no miscarriage of justice or any perversity. He cited Bello v FRN (2018) LPELR – 44465 (SC).
Having set out in summary, the postures albeit divergent of the Appellant as against the Respondent, it is to be reiterated that in seeking to establish the guilt of a defendant, the prosecution may rely on any of the three ways set out hereunder: 1. Confessional statement of the defendant. 2. Direct eyewitness account of a witness or witnesses. 3 Circumstantial evidence. The above is a follow-up in our criminal justice system as an accused person is presumed innocent until the prosecution proves his guilt.
Hence an accused is not expected to prove his innocence before the Court of law, since the duty is on the prosecution to establish the charge or charges against an accused beyond reasonable doubt. See Saminu v State (2019) LPELR- 47622 (SC); Uche Williams v The State (1992) 10 SCNJ 74.
The notion, proof beyond reasonable doubt is not the same as proof beyond all doubt or all shadow of doubt or proof to the hilt. What proof beyond reasonable doubt rather means is the establishment of the guilt of an accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high level of probability.
See Ayinde v State (2019) LPELR-47835 (SC) per Okoro JSC; Nwaturuocha v The State (2011) 6 NWLR (pt. 1242) 170; Ajayi v The State (2013) 9 NWLR (pt.1360) 589; Alabi v The State (1993) 7 NWLR (pt. 307) 511; Nasiru v The State (1999) 2 NWLR (pt. 589) 87; Akalezi v The State (1993) 2 NWLR (pt. 273)1.
In this case in point, the appellant was charged for defilement and it is now settled beyond peradventure that to prove the offence of defilement, the prosecution must establish the essential elements of the offence which my learned brother, Rhodes-Vivour JSC captured effectively in the case of Boniface Adonike v The State (2015) 7 NWLR (pt.1458) 237 at 284 – 285 as follows:- “Section 218 supra creates the offence of defilement of a girl under the age of 11 years.
To succeed, the prosecutions must prove beyond reasonable doubt: (a) that the accused/appellant had sex with the child who was under the age of 11 years. (b) that there was penetration into the vault of the vagina. (c) the evidence of the child must be corroborated. The evidence for defilement is the same as in rape except that for defilement it is immaterial whether the act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under the age of 11 is a child and so is not capable of consenting to sex.
The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.” The Appellant’s Counsel did not in his brief dispute the fact that the victim was defiled as evidence before the trial Judge clearly support this position. By the oral evidence of PW1 and PW4 as well as Exhibit P6 (medical report) the victim who was 16 months old had bruises in her vagina and her hymen was ruptured.
The result of the examination was not controverted or challenged as PW4 in his evidence stated clearly that his medical report was not solely on the information provided by PW1 but on his findings and history supplied by the mother.
It is trite law that the duty of Court when evidence is unchallenged and uncontroverted, is to act on it where credible. I refer to the cases of OFORLETE V. THE STATE (2000) 7 SCNJ 162 at 179, 183 and 184 and MAGAJI V. NIGERIA ARMY (2008) 8 NWLR PART 1089 p.338. The area the appellant contends on is that he could not have been the one who defiled the victim because the victim (a baby) was crying a day before when she was taken to a neighbour across the street. Yet, the Appellant under cross-examination admitted that he was not at home a day before when the baby was crying.
The Appellant also admitted during cross-examination that on 26th November, 2013 when the baby was brought to him in the room he was the only person in the room and there was no report of any blood stain.
The argument of Appellant’s Counsel that the baby was wearing diaper as such the Appellant could not have known if there was blood stain, amounts to giving evidence in counsel’s brief. See Lawali v state (2019) LPELR-46405 (SC), where the Court held that “I think I should prefatorily make the point: a bare statement from the Bar by a counsel has no force of legal evidence: ONU OBEKPA v. COMMISSIONER OF POLICE (1980) 1 NCR 113. “I also add that the proof of evidence in criminal proceedings serves the same purpose that pleadings serve in civil proceedings.
The facts therein are not evidence unless they are proved or established as legal evidence in the proceedings. The appellant’s counsel had pointed at pages 240-241 of the Record, a portion of the judgment statement made on 25th January, 2010. The statement is at page 25 and of the Record; It was not admitted into the body of evidence in the proceedings. This is the statement the appellant, under cross-examination, at page 77 of the Record emphatically denied he made. The statement, admittedly, raised a defence of alibi if in fact it was made and proved. It suffers three fundamental setbacks.
The appellant, the supposed maker, denied his authorship of the statement, including the defence of alibi therein. Secondly, it was being smuggled into the proceedings from the Bar by the appellant’s counsel for the first time at the Court of Appeal vide ‘Appellant’s brief settled by one Musibau Adetunbi, Esq. This is found in paragraph 41 of the said Brief, particularly at page 171 of the Record.” Learned counsel for the Appellant had in the guise of a vocal address led evidence to fill the gap created during the testimony of the Appellant, a route not permitted to be trod.
The reason is simple, that a final address no matter how brilliantly couched cannot take the place of evidence as addresses are not so intended. Generally, a counsel, on ethical grounds is not expected to be a counsel in a matter and also a witness as doing that would run contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007. See Eko JSC in Lawali v State (2019) LPELR – 46405 Pp.7-9; Nwadiaro v SPDC (1990) 5 NWLR (pt.150) 322 at 330; Odubeko v Fowler (1993) 1 NWLR (pt.308)637; Ishola v Ajiboye (1998) 1 NWLR (pt.532)71 at 93; Aro v Aro (2000) 14 WRN 51 at 56.
The learned counsel for the Appellant took a swipe at the lower Courts not making any pronouncement on the failure of the investigating Police Officer to investigate the defence of the Appellant that the baby was Crying uncontrollably a day before the incident in the neighbour’s house. This slant of defence is illogical as such an uncontrollable cry would not go on beyond the day before the day of the alleged incident in a victim so tender without the mother taking notice and having something done.
Also it runs against the grain of the same mother for a child who would have been so violated as evinced in the medical report to give such a child to the Appellant without anything done about the reason for that inconsolable crying.
Again to be said is that the appellant is not correct that the Court below failed to consider the defence embedded in that angle put across by the defence as I shall show anon. The Court below held at page 223 of the record thus:- “… Also, whether the victim cried or not is not material to prove the offence in question. What is material is penetration of the private part of the victim which was established beyond reasonable doubt by the evidence of the P.W.3, the medical doctor.
The said unbroken chain of events fixed the appellant with the crime as he was the only person with the victim and had not only the opportunity to commit the offence charged but did indeed commit it from the conclusive, unequivocal and compelling circumstantial evidence. The onus placed on the appellant to offer minimum explanation on how the victim came to be ravished was not discharged by the appellant.
The circumstantial evidence in the case therefore left no doubt that the appellant had the first opportunity to commit the crime as rightly held by the Court below vide Omoregie v State (2018) 2 NWLR (pt.1604) 505.”
Indeed the prosecution placed before the trial Court direct and cogent evidence of the witnesses alongside exhibits which point directly to the Appellant as the person who committed the offence.
The defence of the victim being heard crying from neighbour’s house the previous day did not in any way create doubt in the minds of the lower Courts and this is because it is not a defence to the commission of the crime even though the Appellant’s Counsel attempted to equate same as alibi. The word simply means the defendant was somewhere else when the offence was committed but this is not the position in this case as Appellant was fixed at the scene of crime and as such the defence must collapse.
In Ezekwe v State (2018) LPELR-44392 (SC), this apex Court held thus:- “The plea of alibi runs on some very well-known principles.
That is: (1) The Defendant who raises alibi does so to discharge the evidential burden he has to cast doubt on the prosecution’s case, It is discharged on a preponderance of evidence, that is on a balance of probabilities: OZAKI v THE STATE (1990)1 N.W.L.R. (Pt.124) 92 at 110 (2) The Defendant who intends to set up the defence, or who sets up the defence of alibi is enjoined to give sufficient details or particulars of his whereabouts in order to enable the Police or the prosecution investigate it with the view to either affirm it or debunk it: BENSON UKWUNNENYI v.
THE STATE (1989)7 S.C. (Pt.1) 64; (1989) 4 N.W.L.R (Pt.114) 131. The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarly within his knowledge lies on him by dint of Sections 140, 131, & 132 of the Evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts.
Failure of the Defendant to give particulars of alibi is fatal to the defence; OKAI v THE STATE (1989) 2 S.C.N.J. 183 at 191. When validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the prosecution to investigate it with the view of either validating it or debunking it: BALOGUN v. A.G OGUN STATE (supra) alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the actus reus and the mens rea of the offence.
It does entitle the Defendant to acquittal and order of discharge: UKWUNNENYI v. THE STATE (supra). The defence of alibi is not established by mere waving it to the trial Court. It is not sacrosanct Either. This Court in DAGAYYA v.
THE STATE (2006) NWLR (Pt.980) 637; (2006) ALL F.W.L.R. (Pt.308) 1212, cited by the Appellant’s counsel had stated the law on alibi clearly thus: the defence of alibi crumbles the moment the prosecution gives superior evidence fixing the Defendant not only to the scene of the crime, but also to his commission of the offence. ” Per EKO, JSC (Pp. 7-9, para- D) underlined for emphasis.
The learned counsel for the appellant has argued that there were contradictions in the circumstantial evidence put up by the prosecution.
I posit with humility that circumstantial evidence may be even more powerful than direct evidence in certain cases as held in State v. Sunday (2019) LPELR-46943 (SC), that it is settled that circumstantial evidence requires an inference to be made to establish a fact, and in certain cases, circumstantial evidence may be even more powerful than direct evidence, which proves or disproves a fact directly – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, wherein this Court per Nnamani, JSC observed as follows: “Circumstantial evidence is very often the best evidence.
It is said to be evidence of surrounding circumstances, which … is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction … must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the Accused and incapable of explanation on any reasonable hypotheses than that of his guilt.”
In the case at hand, the victim was in the care of Appellant and by the evidence before the Court, Appellant was the only person in the room with the victim as the girl-friend went away to buy “garri” and by undisputed evidence of PW1, the distance where the girl-friend went to buy “garri” is about a 30 minute walk. Appellant was the only male at home and from the evidence of PW1, she confirmed from the Appellant that there was no blade or sharp object with which the victim could have cut herself.
By the evidence of PW3, the rupture of the hymen could be caused by sharp object or penis and in this instance, there was no sharp object and this only left the Appellant as the only male in the house.
The law is well settled that circumstantial evidence must point directly to the accused as the person who committed the offence. I am guided by that settled position of law that before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the specific portion of the previous statement made by the witness, sought to contradict the witness must be brought to the attention of the witness for his explanation. See Olaoye v State (2018) 8 NWLR (pt. 1621) 281 at 309.
I am at one with learned counsel for the Respondent that there is no part of the Record where prosecution witnesses were confronted with the perceived contradictions. Clearly, whatever contradiction remotely seen did not remove the Appellant from the scene of crime or disprove the fact that the victim was defiled and Appellant fixed therewith.
For contradiction to affect the case of the prosecution, it must be substantial and go to the root of the matter. This Court has eloquently stated the position regarding contradictions in various dicta. In Ifedayo v State (2018) LPELR-44374 (SC), it was held that “the position of the law, on the issue of contradictions in the evidence of witnesses that testify in Court is well-settled; it is not every minor contradiction in evidence that matters. For a trial Court to disbelieve a witness for the said reason, the contradiction in his evidence must be on a material point – See Kalu V.
The State (1988) 4 NWLR (PT.90) 503 SC. And Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, where this Court per Tobi JSC, clearly explained that – “Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not – mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies.
That is why the law says that contradictions which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different versions in respect of the peripheral surrounding the event.” The law has remained unchanged that it is the primary responsibility of the trial Judge to evaluate evidence placed before the Court as the trial Judge is the one that saw, heard and observed the demeanour of the witnesses.
In Mamudav State (2019) LPELR-46343 (SC), it was held by the Supreme Court that the task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is raised and credibility of the witnesses is made an issue. See Nnorodim v Ezeani (2001) 2 SC 145; Onuoha v State (1998) 5 NWLR (pt.548) 118.
It is having the above position of the law in its view that propelled the lower Court to hold at page 216 of the Record thus:- “The evidence of these witnesses could not have been impugned in the manner and course pursued by the appellant in the circumstance. The Court below was therefore right to rely on their evidence. In the insight case, the alleged contradictions were only discrepancy as to details, not on the substance or marrow of the case, and left the evidence of the witnesses on the proof of the elements of the offence charged unscathed.”
The position of this apex Court is that Appellate Court will not interfere with finding of facts by lower Court especially the concurring finding of fact by the lower Court and trial Court except the finding occasioned miscarriage of justice or is perverse. In aid on this position is the decision of this Honourable Court in Bello v.
FRN (2018) LPELR-44465 (SC), where it was held thus; “As I had earlier alluded to the concurrent findings and conclusion of the two Courts below, the question that I must answer at this level is whether there is justification upon which I can interfere with those findings of fact.
This question which must be answered advisedly bearing in mind the general principle that where there are concurrent findings of fact by the trial Court and the Court below such as in the instant case, the Supreme Court is not likely to disturb such findings which it can only do where those findings are perverse or a miscarriage of justice had taken place whereby this Court can take the stand of intervention or interference with the said findings. A reference to earlier decided cases of this Court along those lines would clear the point.
See Ude v Chimbo (1998) 12 NWLR (Pt.577) 169 at 186-187 and 194; Woluchem v Gudi (1981) 5 SC 291.
For effect see the case of: Adegoke v Adibi (1992) 5 NWLR(pt. 242) 410 at 427 where this Court held per Wali JSC that: “where the trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse, as in this case, the Court of Appeal has a duty by way of rehearing, to evaluate as if it were the trial Court the evidence that has been adduced… The Court of Appeal should not shrink from the task of such evaluation or i.e. inhibited therefrom just because it is an appellate Court.” (Emphasis Supplied) “In the case of Nneji v Chukwu (1996) 10 NWLR (pt.478) 269 at 278 this Court also held: “A Court of Appeal does not easily disturb the findings of facts of a trial judge who had the singular opportunity of listening to the witnesses and watching them perform.
It is settled law, however, that such findings of facts or inferences from time to time may be questioned in certain circumstances.” (Emphasis supplied). In the case of Agbomeji v Bakare (199…) 8 NWLR (Pt.564)1 at 19, this Court also finds the same thing when it held thus: “True enough, this Court does not readily interfere with concurrent findings of Courts below. See Kale v Coker (1982) 12 SC 252; Lokoyi v Olojo (1983) 2 SCNLR 127; Ojomu v Ajao (1983) 2 SCNLR 156; Ibrahim v Shagari (1983) 2 SCNLR 176.
As concurrent finding of fact under consideration appears not to flow logically from the other findings made by the trial judge.
I must hold that finding is perverse and I must consequently set it aside.” Applying those principles to the case in hand and answering the poser whether in the light of those concurrent findings this Court can interfere, my answer is that those authorities espousing the position of the law on what an appellate Court faced with concurrent findings must be guided but do not aid the appellant rather they go to solidify the stance of the respondent as this Court has no business interfering since those findings are borne out of the record being overwhelming which compared with the feeble defence laid out by the appellant leaves the Court no option than to hold that the prosecution effectively proved its case on the three count charge beyond reasonable doubt.
See Ben v The State (2006) 4 FWLR (Pt.345) 7507 (SC); Onwuama v Ezeokoli (2002) 2 SCNJ 271; Amusa v The State (2003) 1 SCNJ 518; Ubani& 2 Ors v The State (2003) 18 NWLR (pt.851) 247; Akinkugbe v Ewulum Holdings Nigeria Ltd (2008) 12 NWLR (Pt.1098) 375 at 398-399.” Per MARY PETER-ODILI, J.S.C (Pp.4-37).
The Appellant has not been able to surmount the huddle that would impel this Court to interfere with the concurrent findings of fact of the two Courts below and worse still did nothing to produce a reasonable doubt to impugn the rock solid evidence put up by the prosecution in the discharge of the burden laid upon it by law in proof of this crime so vile and repugnant to all senses know to humanity.
I shall make the point that it is bad enough that the victim is so closely related by blood to the Appellant which the victim happens to be his niece and worse still and tingling to the ears that the child, an infant, babe at arms of 16 months of age was so violated. The Appellant in my view was let off lightly with a sentence of 25 years in the face of the fact that such a person with behaviour below that known only with the beasts should have to co-habit in a normal society after the term. However, there is nothing I can do with the term of sentence.
Having said that, I see no merit whatsoever in this appeal in which I dismiss. I affirm the decision of the Court of Appeal which affirmed the conviction and sentence of the trial High Court. Appeal Dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, MARY UKAEGO PETER-ODILI, JSC, just delivered. I agree that there is no merit in the appeal and it deserves to be dismissed.
It is settled law that in establishing the guilt of an accused person beyond reasonable doubt, the prosecution may use one or more of the following methods: (1) Direct evidence of eye witness; or (2) Confessional statement of an accused person or (3) Circumstantial evidence. See: Okashetu vs The State (2016) 14 NWLR (Pt.1534) 126; Oguonzee vs The State (1998) LRCN 3512; Berende vs FRN (2021) LPELR – 5499 (SC) @ 20 A- C.
In the instant case, the prosecution relied on circumstantial evidence, to the extent that the infant who was found to have been defiled was left with the Appellant while her mother took a shower and the Appellant was alone in the room with the baby. After having her bath, the child approached her mother pointing to her pants urging her to have a look.
Upon examination, the underwear was found to be stained with blood. A medical examination carried out by PW3 within 48 hours of the incident revealed that the child had bruises around her vagina and her hymen was ruptured. In the medical report, Exhibit P6, PW3 found that the multiple bruises indicated repeated and forceful trauma to the victim’s genitals.
The undisputed evidence before the trial Court was that at the time material to the charge, the Appellant was alone in his room with the victim. Furthermore, there was no complaint or agitation from the victim before she was left with the Appellant. There was no supervening incident between the time PW1 left the baby with the Appellant and the time she discovered blood in the baby’s underwear.
In Lori & Anor. vs The State (1980) NSCC (Vol. 12) 269, His Lordship, Nnamani, JSC explained what amounts to circumstantial evidence and when it would be sufficient to ground a conviction thus: “It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a preposition with the accuracy of mathematics. It is no derogation of evidence to say circumstantial.
But the circumstantial evidence sufficient to support a conviction in a criminal trial especially murder, must be cogent, complete and unequivocal It must be compelling and must lead to the irresistible conclusion that the Prisoner and no one else is a murderer. The facts must be incompatible with the innocence of the accused and incapable of any other reasonable hypothesis than of his guilt.” See also: Ukorah vs The State(1977) NSCC (vol. 17) 218; Umaru Sani Vs The State (2017) LPELR – 43475 (SC) @ 16-19 E – per Augie, JSC.
I am in complete agreement with my learned brother, MARY UKAEGO PETER-ODILI, JSC that the circumstantial evidence in this case leads irresistibly to the guilt of the accused. The appellant raised a rather feeble defence that the inference that he committed the offence was wrongly drawn because the 16-month-old baby was heard crying for an extended period of time while at a neighbour’s house across the road the previous day. The appellant admitted under cross examination that he was not at home the previous day.
His evidence that the baby cried for a long time the previous day is therefore hearsay and of no evidential value. Furthermore, it is not unusual for a 16-month old baby to cry for an extended period of time. What is established beyond reasonable doubt is that it was after she had been left in the Appellant’s custody that she drew her mother’s attention to her private parts and blood stains found, which were confirmed by medical examination to be a result of forceful trauma to her genital area.
I entertain no doubt whatsoever that the Appellant committed the offence with which he was charged. I am not persuaded to interfere with the concurrent findings of the two lower Courts.
The appeal is hereby dismissed. The judgment of the lower Court is affirmed. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: The facts of this case are that on 26th November, 2013, the PW1 who is a sister to the Appellant left her 16-month old baby in the care of the Appellant to take her bath. On leaving ‘the bathroom, she met her baby at the door to her house pointing to her pant and saying mummy “see see”. That she removed the pant to see what her baby was trying to show her only to discover blood stains on her baby’s genital.
She then rushed the child to the hospital where examination revealed that she had bruises around her vagina and a broken hymen which might have been caused by a sharp object such as a penis.
Upon his arrest, the Appellant put up a defence that he was with his girlfriend at the time and that the baby must have been defiled a day before the event when she was found crying uncontrollably in a neighbor’s house. The law is trite that where there is no direct eyewitness evidence as to the commission of a crime, the prosecution may rely on circumstantial evidence to prove its case and proof of circumstantial evidence is sufficient to secure conviction. See Mohammed vs. State(2007) 11 NWLR (Pt. -1045)303; Adeniji vs. State (2001)13 NWLR (Pt.730)375: Ikomi vs.
State (1986) 3 NWLR (Pt. 28) 340.
However, the law is that for the Court to rely on circumstantial evidence to ground conviction, the circumstantial evidence must be compelling and unequivocally point to only one rational conclusion that the offence already established as having been committed was indeed committed by the accused person. Mere suspicion is deficient and would lead to an acquittal. See Adesina Vs. State (2012)14 NWLR (Pt.1321)429; Chukwu Vs. State (2013) 4 NWLR (Pt.1343) 1.
In the instant case, the Appellant admitted during Cross- examination that he was the only person with the victim in the room as his girlfriend had gone out to buy garri. He also admitted that there was no blood stains on the victim as at the time she was brought to him. The circumstantial evidence in this case points irresistibly to the fact that the Appellant had the opportunity of committing the offence and he but no other person committed the offence.
The sum total of what I have endeavoured to say above is that the appeal of this Appellant has no merit and it is hereby dismissed. I affirm the judgment of the Court below delivered on 27th July, 2020. Appeal Dismissed.
ABDU ABOKI, J.S.C.: I had the advantage of a preview of the lead judgment which was prepared by my learned brother MARY UKAEGO PETER-ODILI, JSC. I am in agreement with the said judgment which dealt with the issues for determination of the appeal beautifully that I have nothing more to add.
The appeal is devoid of any merit, hence, deserves to be dismissed. Accordingly, it is dismissed by me. The judgment of the Court of Appeal, which affirmed the conviction and sentence of the Appellant by the trial Court, is further affirmed by me. Appeal Dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having had the privilege of reading, before now, the judgment just delivered by my learned brother, the Hon. Justice M.U. Peter-Odili, JSC, I cannot but agree with the reasoning reached therein to the conclusive effect that the instant appeal is grossly devoid of merits. Hence, I too hereby, without much ado, dismiss the appeal for being unmeritorious. Appeal dismissed.
Appearances
OSSAI v. PEOPLE OF LAGOS STATE
On Friday, February 25, 2022
SC.853/2017Before Their Lordships
John Inyang Okoro Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
Judgment
ABDU ABOKI, J.S.C. (Delivering the Leading Judgment) : This appeal is an offshoot of the judgment of the Court of Appeal, sitting in Lagos, delivered on the 11th of April, 2014.
The Appellant was arraigned at the High Court of Lagos State, on a two count charge of conspiracy to commit armed robbery, and armed robbery, to wit: STATEMENT OF OFFENCE – 1ST COUNT Conspiracy to commit Armed Robbery contrary to Sections 403(A) of the Criminal Code Cap C. 17, Vol. 2, Laws of Lagos State 2003. PARTICULARS OF OFFENCE Idris Sanni (m), Stanley Ossai and others still at large on or about the 26th August, 2007, at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu in the Ikeja Judicial Division, conspired to commit a felony to wit: Armed Robbery.
STATEMENT OF OFFENCE – 2ND COUNT Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Cap C. 17, Vol. 2, Laws of Lagos State 2003. PARTICULARS OF OFFENCE Idris Sanni (m), Stanley Ossai and others still at large on or about the 26th August, 2007, at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu in the Ikeja Judicial Division, while armed with offensive weapons to wit: a single barrel gun and saw blade, robbed one Mrs. Omowunmi Adedeji of her handset and the sum of N200,000.00 (Two Hundred Thousand Naira).
The facts leading to this appeal is that the Appellant, who was the 2nd Defendant at the trial Court, was tried together with one Idris Sanni, for conspiring and robbing one Mrs. Omowunmi Adedeji (PW2’s wife), of her handset and the sum of N200,000.00 (Two Hundred Thousand Naira) in her residence at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu, at about 8p.m., on the 26th August, 2007, while masked. A toy rubber pistol, face mask and a saw blade were said to have been recovered from the Appellant and handed over to the Police as the items used in the course of the robbery operation.
It was part of the Respondent’s case that the PW2 raised an alarm, which attracted neighbours, and the members of the Odua Peoples’ Congress, (OPC) who cordoned off the area. In the course of combing the area, they discovered the Appellant, who led them to the 1st defendant. Both of them were taken to the Police Station. According to the Respondent, in the course of the Police investigation, the Appellant confessed to committing the alleged offences.
The trial Court accepted the Respondent’s case and they were both convicted and sentenced to 21 years imprisonment for the offence of conspiracy, and death by hanging, for the offence of armed robbery.
The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below, which allowed the appeal in part, and convicted the Appellant for a lesser offence: that is, conspiracy to commit robbery, and robbery without arms or offensive weapons, under Section 403 A and 402(1) respectively, of the Criminal Code, read with Section 19(3) of the Court of Appeal Act, 2004 as well as case of Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765 and he was sentenced to 21 years imprisonment. The sentence was backdated to 26th of August, 2007.
It is against this judgment that the Appellant appealed to this Court via a Notice of Appeal, filed on the 26th of April, 2017, containing two grounds of appeal.
In his brief of argument filed on the 2nd of March, 2018, but deemed filed on the 24th of November, 2021, David Ogenyi Ogebe Esq., of Counsel for the Appellant, distilled a sole issue for this Court’s determination, to wit: Whether the lower Court was right to convict the Appellant for a lesser offence of robbery and conspiracy to commit robbery, on the grounds that the Appellant did not object to the tendering of his retracted Statement and his alibi was not raised in good time and was therefore an afterthought?
Rotimi Seriki, Esq., of Counsel for the Respondent advanced two issues for determination, in the amended Respondent’s brief filed on the 9th of March, 2020, but deemed filed on the 24th of November, 2021. They are: 1. Whether the learned Justices of the Court of Appeal were right in convicting the Appellant of the lesser offences of robbery and conspiracy to commit robbery, on the basis of the Appellant’s confessional statement, Exhibit A2. 2.
Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial Court dismissing the defence of alibi raised by the Appellant?
I adopt the sole issue donated by the Appellant in the determination of this appeal, which is: Whether the lower Court was right to convict the Appellant for a lesser offence of robbery and conspiracy to commit robbery, on the grounds that the Appellant did not object to the tendering of his retracted statement and his alibi was not raised in good time and was therefore an afterthought?
The pith of the submissions of the Appellant is that the Court below was in error to have convicted the Appellant for a lesser offence of robbery and conspiracy to commit robbery.
According to learned counsel for the Appellant, the entire evidence against the Appellant was hearsay as none of the victims of the robbery was called as a witness and the persons who arrested and identified him as one of the robbers were not named, and did not testify.
He contended that the evidence of the Prosecution as to how the Appellant was arrested was not only hearsay, but also contradictory as PW2, the husband of the victim, who was not at home during the robbery, gave two contrasting stories of how the Appellant was arrested and identified. He pointed out that none of the alleged weapons purportedly seized from the Appellant when he was arrested was tendered in Court and no explanation was given as to their whereabouts, adding that the only evidence led by Prosecution regarding the purported weaponsrecovered from the Appellant, came from PW2, who identified the weapons as “short gun, iron rod, 4 black hood (mask) and a short cutlass.
He maintained that this is in sharp contradiction to the evidence of PW1, who testified that the weapons recovered from the Appellant and handed to him were “one toy rubber pistol, face masks and a saw blade.”
According to learned counsel for the Appellant, there was no independent evidence outside the retracted Exhibit A2, the confessional statement of the Appellant, to prove that Exhibit A2 was true.
He invited this Court’s attention to some excerpts of the judgment of the Court below and contended that having found as a fact that there was no eye witness evidence, no irresistible, cogent and unequivocal evidence to support the conviction of the Appellant for armed robbery, it amounted to a grave miscarriage of justice for the Court below to have acted on the unsubstantiated retracted confessional statement of the Appellant to convict him for robbery simpliciter. He called in aid, these cases: Adio v. State (1986) 2 NWLR (Pt. 24) 581; Chiokwe v.
State (2013) 5 NWLR (Pt. 1347) 206.Learned Counsel insisted that there was not the slightest evidence at all outside the confessional statement to prove that it was true. Rather, that the Court below found that there were material contradictions with respect to the type of weapons purportedly used in committing the crime; that there were no eye witness evidence identifying the Appellant as one of the robbers; and that generally, there was no cogent evidence tying the Appellant to the crime.
He argued that with these findings, the Court below ought to have discharged and acquitted the Appellant and that convicting him for the lesser offence of robbery was perverse and occasioned a miscarriage of justice, and this Court is urged to so hold.
On the defence of alibi raised by the Appellant, it is the view of learned counsel for the Appellant that going by the account of the Appellant in Exhibit A2, it is evident that the Appellant notified the Police at the earliest opportunity that he was at a party at Agape Street.
He contended that the duty was on the Prosecution and the Police to lead evidence to show that the Appellant attended a party but had sufficient time to commit the robbery. According tohim, the Prosecution did not lead any evidence to show the time of the party, the distance of the party to the scene of the robbery and the time and place of the arrest of the Appellant.
He maintained that there was no evidence on record to show that the Appellant could have attended the party, and subsequently committed the robbery, insisting that the defence of alibi could not, by any stretch of imagination, be labeled an afterthought.
He urged this Court to resolve this issue in favour of the Appellant, allow the appeal and set aside the conviction and sentence levied upon the Appellant, by the Court below.
In response to the above, it is submitted for the Respondent that a confessional statement is the best evidence of the commission of a crime. Learned counsel for the Respondent stated that though the confessional statement of the Appellant, made on the 7th of September, 2007 at the CID was admitted as Exhibit A2 without objection from the Appellant, the Appellant’s second confessional statement made to the Nigeria Police, Ipakodo Division on the 27th August, 2007 was admitted as Exhibit D1, after the objection of the Appellant’s Counsel was overruled by the trial Judge.
He opined that the contrary to the submissions of the Appellant’s counsel that there is no independent and external evidence to confirm or corroborate the confessional statements, Exhibits A2 and D1, a conviction can still be sustained on a free and voluntary confession of an accused person, notwithstanding that the accused retracted the confession. He placed reliance on the case of Monsuru Solola& Anor v. The State (2005) 2 NWLR (Pt. 937) 460.
It is the view of learned counsel for the Respondent that Exhibit A2 met the six tests for its veracity, after same was retracted by the Appellant and there was evidence before the trial Court that Exhibit A2 was sufficiently corroborated by other independent evidence.
According to him, Exhibit A2 was corroborated by Exhibit D1, the Appellant’s confessional statement made at Ipakodo Police station, immediately after his arrest; Exhibit A2 was also corroborated by the evidence of PW1 (Inspector Balogun Oshibowale of Ipakodo Police Station); PW2 (Adedeji Kayode, the husband of the Complainant) and PW3 (ASP Olaniyi Soyemi) of FCID, Panti, Lagos.
He maintained that the Exhibit A2 was sufficiently corroborated and where, as in the instant case, there is no objection to the admissibility of a confessional statement, any retraction by an accused at a late date or time does not affect the voluntariness. He called in aid, the following cases: Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt. 885) 482; Alarape v. The State (2001) 5 NWLR (Pt. 705) 79.
On the contradictions in the evidence of the Prosecution, it is submitted for the Respondent that the alleged contradictions are not substantial enough to discredit the testimony of the witnesses. He argued that the contradiction relates to the weapons recovered and handed over to the Police, but does not affect the fact that there was robbery and that the Appellant was one of the robbers.
On the issue of the defence of alibi as argued by the Appellant, it is the opinion of learned for the Respondent that the Court below was right to affirm the decision of the trial Court that the Prosecution was able to disprove the defence of alibi, in that the time the Appellant was at the birthday party, is earlier than when the crime was committed. He argued further that the defence of alibi was not timeously raised by the Appellant to enable the Police investigate same, adding that the Appellant did not furnish the Police with the relevant information and particulars of his alibi at the point of investigation to enable the Police investigate same.
He therefore urged this Court to resolve this issue against the Appellant, dismiss the appeal and affirm the decision of the Court below.
In reply, learned Appellant’s counsel submitted that the arguments of the Respondent’s counsel that Exhibit A2 was corroborated/was untenable. According to him, nowhere in the judgment of the Court below was it held that Exhibit A2 was corroborated by the evidence of PW1, PW2 and PW3, and in the absence of a cross-appeal or a Respondent’s notice, these submissions go to no issue.
Furthermore, learned Appellant’s counsel argued that Exhibit D1, is the alleged 2nd confessional statement of the Appellant and does not qualify as credible evidence outside the confessional statement (Exhibit A2), to corroborate Exhibit A2, as the Appellant cannot corroborate himself. Secondly, Exhibit A1 is the statement of the Appellant’s co-defendant and therefore is inadmissible against the Appellant, except the co-defendant adopts the statement, which is not the case in the instant appeals.
Thirdly, the evidence of PW2 does not help the case of the Respondent, as it is at best hearsay, as neither PW1, PW2 nor PW3 were eye witnesses to the crime.
Consequently, this Court was urged to discountenance the submissions of the Respondent and allow the appeal, in the interest of justice.
It is beyond contention that an appellate Court can substitute a conviction for a lesser offence for an aggravated offence, which an Appellant is charged and convicted for, by the trial Court.
In restating the principle, Section 179 of the Criminal Procedure Act, Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act, are hereunder reproduced for ease of reference:- Section 179 of the Criminal Procedure Act: (1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved butthe remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.
Order 4 Rule 3 The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made and to make such further or other order(s) as the case may require including any order as to costs.
Section 15 of the Court of Appeal Act The Court of Appeal may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and… generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of first instance and may rehear the case in whole or in part… ” A combined reading of the foregoing brings out the fact that the Court below, in the exercise of its appellate jurisdiction, may invoke the powers conferred in the trial Court under Section 179 (2) of the Criminal Procedure Act.
The trial Court’s power under Section 179 (2) of the Criminal Procedure Act to convict for a lesser offence that was proved in place of the aggravated offence charged is, by operation of the law, amenable to the Court below, by virtue of Order 4 Rule 3 of its Rules and Section 15 of the Court of Appeal Act and in the case of this Court, see Section 22 of the Supreme Court and Order 8 Rules 11 and 12 of the Supreme Court Rules available to both appellate Courts.
Thus by virtue of Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act, the Court below, on the basis of the evidence on record, having found that the Appellant has committed a lesser offence to the aggravated offences he is charged with, is empowered to substitute the Appellant’s wrong conviction for the aggravated offence by the trial Court regardless of the fact that he is not charged with the lesser offence.
In the same vein, this Court is empowered as well, at the end hearing the instant appeal, an appeal being a continuation of trial, to further affirm the lower Court’s decision on the subject matter of the instant appeal. Certainly, an appellate Court’s exercise of its statutory powers to substitute a conviction for a lesser offence under Section 179 (2) of the Criminal Procedure Act for conviction for an aggravated offence does not render the Court’s decision perverse. In Odeh v.
Federal Republic of Nigeria (2008) LPELR-2205 (SC), this Court stated that: “It is the law that an appellate Court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one.”
Learned Appellant’s counsel has argued that the Court below has erred in the exercise of its jurisdiction under the extant adjectival statutes, that in the absence of evidence on record to sustain conviction even for the lesser offence, the perverse decision of the Court below, cannot persist. Having occasioned miscarriage of justice, this Court it is further submitted, is entitled to set the judgment aside.
Learned Respondent’s counsel submits, and correctly too, that the Record of Appeal does not support Appellant counsel’s submission. Evidence abound, learned counsel further contends, which shows beyond doubt that the Appellant, at best, had participated in the robbery simpliciter, as held by the Court below.
I am in complete agreement with learned Respondent’s counsel that it is evident from the Record of Appeal that the Prosecution has made out the lesser offence of conspiracy to commit robbery without firearms or offensive weapons and robbery without arms or offensive weapons, under Section 403(A) and 402(1) respectively, of the Criminal Code.
At the trial Court, Exhibit A2, the Appellant’s confessional statement was admitted in evidence without objection. (See page 29 of the Record.) The said Exhibit A2, at pages 16 – 19 of the Record, states inter aha: “…l know Joseph, ‘m’ surname unknown, as a taxi driver in Okorodu Lagos, he normally assists me, whenever I want to fetch water with his car. I know Idris ‘m’ lives in the same area with me. On 26/8/2007, Joseph ‘m’ called me that there is a birthday party at Ibeshe, Ikorodu Lagos as I was coming from a production camp and I was with two toy guns which we used for acting.
I then went to the party at Agape Street. When I got to the party, there was a fight there, then I went away. On getting to the bus stop Saidi ‘m’ brought one saw blade and he was looking for where to put it. I told him to put it inside my bag. As he opened my bag, he saw two toy guns and he said it would be good for what they wanted to do. Joseph ‘m’ had already finished making the masks. Four of us namely: Joseph ‘m’, Idris Sanni ‘m’, Saidi ‘m’, and myself took bike to No. 5 Adedeji St. Ibeshe Ikorodu Lagos. Joseph ‘m’ and Saidi ‘m’ masked themselves.
Saidi held a locally made gun while Joseph ‘m’ held a toy gun while I held one toy gun. Idris Sanni ‘m’ did not hold anything. Joseph ‘m’ and Sanni ‘m’ went inside the compound and came out with woman bag which I do not know the content. I was standing outside with my toy gun. Idris Sanni was outside the gate when they came out. Joseph and Saidi started to run after robbing one Mrs. Omowumi Adedeji in the compound. I followed the main road, where people normally pass, thinking that people would not recognize me.
The victim started shouting, two men from the neighbourhood caught me and started to beat me and handed me over to the OPC members on 27/8/2007. I was taken to Police custody with Idris Sanni. I heard that it was Joseph that bought the locally made gun. Joseph (lives) squats with a friend at Ikorodu, Lagos. The girlfriend knows the place Saidi lives with his brother (name unknown) but he is a welder at Ikorodu. I also heard that Saidi has a brother around Adedeji St. Ibeshe. The bag containing the robbed money is in possession of Joseph.
Since my arrest after the operation, I have not seen Joseph and Saidi. I am ready to take the Police to the houses of Saidi and Joseph. I have only accompanied them to the operation of 26/8/2007. …It is my association with bad friends that led me to the robbery operation.”
It has been canvassed on behalf of the Appellant that Exhibit A2, did not meet the requirements of assessing confessional statements, and the reliance on it, by the trial Court, and affirmed by the Court below, was perverse, and occasioned a miscarriage of justice.
At page 295 of the Record of Appeal, the Court below made a crucial finding thus:- “Following the said six methods of assessing confessional statements, I take the view that Exhibit A2, confessed the offences of conspiracy to commit ordinary robbery and robbery, not armed robbery, as Exhibit A2 was consistent that toy guns were carried by the robbers at the material time…”
It is instructive to note that there is no appeal against the profound finding of the Court below. It is elementary that where a finding in the judgment of the Court being reviewed has not been appealed against, the Appellant is deemed to have admitted such a finding and this Court is perfectly entitled to rely on the finding in its decision. See: FBN v. Ozokwere (2013) LPELR 21897 (SC), Durbar Hotel Plc v. ltyough & Ors (2016) LPELR-42560 (SC).
Now, it is trite that for the Prosecution to succeed under Section 402(2)(a) of the Criminal Code Cap C.17, Vol. 2, Laws of Lagos State 2003 under which the trial Court convicted the Appellant, it must prove that: 1. There was a robbery or series of robberies;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> 2. That the robbers were armed; 3. That the accused person was among those who committed the robbery. See: Dondos v. The State (2021) LPELR-53380 SC; Opeyemi v. The State (2019) LPELR-48764 SC.
As has been earlier indicated, Exhibit A2, was received in evidence without objection wherein the Appellant confessed to the commission of the crime. The implication is that the Court can utilize such a confessional statement alone, in convicting an accused person, even in the absence of corroboration. However, as rightly held by the Court below, the offence was not an armed robbery, as the Appellant was consistent. in Exhibit A2 that toy guns were used in the commission of the crime.
They therefore do not fall within the definition of “ARMS”, which refers to any offensive weapon made or adopted for causing injury, and includes metal, cutlass, matchete, guns, knives e.t.c In Egharevba v The State (2016) LPELR-40029 SC, this Court reiterated the above principle when it held inter alia: “Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the Appellant had retracted the making thereof.”
The Court below, while considering the import of Exhibit A2, at pages 295 – 296 of the Record, held as follows: “Indeed, Exhibit A2 which was admitted in evidence without objection vide page 29 of the Record, the Appellant confessed to being in the company of others with toy guns in the course of the robbery operation question. Exhibit A2 confessed to robbery simpliciter, not armed robbery. The Court below did not evaluate Exhibit A2 properly.
If it had done so under the six methods highlighted by the Appellant’s learned counsel, it would not have convicted the Appellant for the aggravated offence of armed robbery. Following the six methods of assessing confessional statements, take the view that Exhibit A2 confessed to the offences of conspiracy to commit ordinary robbery, and not armed robbery, as Exhibit A2 was consistent that toy guns were carried by the robbers at the material time.
As for the issue of saw blade mentioned in Exhibit A2, it is clear from what had fallen from me on the serious discrepancy between the evidence of the PW1 and the PW2 on whether it was a saw blade or cutlass that was recovered from the Appellant at the material time, that the two objects do not rhyme as to make it possible for the surrounding circumstances of the case to that the Appellant had them at the material time as to have mentioned it in his confessional statement in Exhibit A2.
The retracted confessional statement Exhibit A2, being voluntary, positive and direct, sufficed for the conviction of the Appellant for the offence of conspiracy in the sense that the minds of the Appellant and the others met by their togetherness at the material time to commit robbery without arms or offensive weapons. There is therefore substance in the appeal on the conviction and sentence of the Appellant to death by hanging for the offences of conspiracy to commit armed robbery and armed robbery.
I would allow the appeal and set aside or quash the said conviction and sentence, and substitute therefore, a verdict of conviction and sentence of the Appellant for the offence of conspiracy to commit robbery without firearms or offensive weapons and robbery without arms or offensive weapons, under Section 403(A)and 402(1) respectively, of the Criminal Code, read with Section 19(3) of the Court of Appeal Act 2004, as well as the case of Nwachukwu v. State supra.”
I am in accord with this decision. Evidence abound from the Record of Appeal, that there was a robbery and that the accused/Appellant was among those who committed the robbery. I therefore find the concurrent findings of the two Courts below on the admissibility and reliance on Exhibit A2 to convict the Appellant to be unimpeachable.
In Mindi v. The State (2020) LPELR-52897 (SC), this Court held that: “It is now well settled that once a confessional statement is proved to have been made voluntarily, as in the instant case, such as being direct, positive, unequivocal and very suggestive of an admission of guilt by the accused person, it is sufficient to ground a conviction where the maker resiled therefrom or retracted the same completely at the trial.
It has always been the position of this Court that a confessional statement, once properly proved, is sufficient to sustain a conviction despite the retraction by the maker as it is in the instant case.”
On the defence of Alibi, it istrite that Alibi is a defence based on the physical impossibility of a defendant’s guilt by placing him in a location other than the scene of the crime at the relevant time. Where an accused person raises the defence of alibi, such defence should be investigated and must be controverted by reliable or positive evidence by the Prosecution. However, for the Prosecution to be saddled with that responsibility, the defence must be raised timeously, that is, as soon as the accused is arrested and the offence for which he is arrested is explained to him.
Not only is accused required to raise the defence timeously, he must provide sufficient particulars of where he was and with whom he was in order to allow for proper investigation by the Prosecution. See Nomayo v. State (2018) LPELR 44729 SC. It follows that a Defendant who sets up the defence of alibi is enjoined to give sufficient details or particulars of his whereabouts in order to enable the Police or the Prosecution investigate it with the view to either affirm it or debunk it.
The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarlywithin his knowledge lies on him by virtue of Sections 140, 131, & 132 of the Evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the Prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts. Failure of the Defendant to give particulars of alibi is fatal to the defence. See Kolade v. The State (2017) LPELR-42362 SC.
It is also settled that when validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the Prosecution to investigate it with the view of either validating it or debunking it.
Alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the acteus reus and the mens rea of the offence. It entitles the Defendant to an acquittal. See Ezekwe v. State (2018) LPELR-44392 SC.
In the instant appeal, the Appellant stated inter alia, in his defence, at pages 46 – 47 of the record: “On 26th August, 2007, on Sunday, I and my family had lunch after Church service and went to sleep. At about 6.00 pm, one Mr.Atilapa called me to record for him the coronation of the New Commander and I refused. I got upset and angrily dropped the call. I started preparing for a birthday party. When I got there, I started recording. There I met the 1st Defendant who is also a member of the same Church. When I was leaving, Idris decided to escort me.
We learnt at Agape Bus-Stop that there was a fight between OPC men and some boys in the area. After the party, Idris went to his own side and crossed the road. Then I took a bike to go to my own side. Getting to Oremeta Bus-Stop, I was met by Mr. Atilapa. I was beaten up and the next morning, I woke up in their shrine. They took me to the celebrant of the party’s house and they confirmed it I mentioned Idris and took them to his house for his verification. They started beating Idris and they took us to Ipakodo Police Station…”
It can be seen from the above that the Appellant first raised the defence of alibi at the trial.
In its analysis of the defence of aiibi, the Court below, held, inter alia, at page 290 of the Record: “In my view, the defence of alibi was belatedly raised by the Appellant and relived the Police of investigating it. Further, the Appellant did not give the particulars of the address of the place he claimed he was at the time the offence was allegedly committed nor did the Appellant supply the names of the person(s) he was at the material time for the purpose of verifying the alibi from such person(s)…”
I agree with the Court below that the defence was belatedly raised and relieved the Police of investigating it. The Appellant first raised the defence of alibi during his evidence in chief before the trial Court, after he had admitted the offence for which he was charged, in his extra-judicial statement before the Police. Learned counsel for the Appellant has failed to state how a miscarriage of justice was occasioned against the Appellant by the failure of the trial Court to consider a belated and unsubstantiated defence of alibi.
The Court below was therefore right in not considering the defence of alibi, which in my view, was an afterthought. See Akeem v. State (2017) LPELR-42465 SC.
From the foregoing, I hold that this appeal is devoid of merit and it is accordingly dismissed. The judgment of the Court of Appeal, sitting at theLagos Division, delivered on the 11th of April, 2014 is hereby affirmed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother ABDU ABOKI, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is devoid of merit and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: My learned brother, Abdu Aboki, JSC, obliged me before now a draft of the lead judgment just delivered by him and I find myself completely in sync with his reasons and conclusion arrived thereat.
The law is well settled that of the three modes of proof of crime available to the prosecution, to wit: direct evidence of an eye witness, confessional statement of the offender and circumstantial evidence, there is no evidence stronger than a person’s own admission or confession. Although often retracted, admitted confessional statement to the commission of offence is of greater value than all other proofs. See Oseni Vs. State (2012) 5 NWLR (Pt. 1293) 351.
The six tests laid down for verification of the confessional statement before evidential weight can be attached to them are prescribed to ensure that the confession is corroborated and safe to be relied on for conviction. See Ikemson Vs. State (1989) 3 NWLR (Pt. 110) 455, Akpan vs. State (1992) 6 NWLR (Pt. 248) 439.
In this case, the Appellant’s confession in Exhibit A2 and Exhibit D1 admitted to having committed the offences of conspiracy to commit robbery and robbery with toy guns. A toy gun is not envisaged in the law to fall within the definition of “Arms”. It was therefore wrong to have convicted him for armed robbery. The Court below was correct to substitute his conviction for armed robbery with robbery simplicita. Appealing against that decision of the Court below is dead on arrival and a total waste of time.
In the final analysis, I hold that this appeal is devoid of merit. I also dismiss it. The decision of the Court of Appeal delivered on 11th April, 2014 is hereby affirmed. Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: The Appellant in this appeal was tried, convicted and sentenced to death by the High Court of Lagos State on the 3rd day of March, 2011 for the offence of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 403 (a) and 402 (2) (a) of the Criminal Code, Cap C.17, Vol. 2, Laws of Lagos State 2003.
The appellant became aggrieved and lodged an appeal at the Court of Appeal Lagos Division where the Appellant’s appeal was allowed in part on the 11th day of April, 2014, the Appellant was found guilty of conspiracy to commit robbery and robbery, he was then sentenced to 21 years imprisonment.
Appellant was still not satisfied he therefore brought this appeal after applying for and obtaining an extension of time to appeal. Appellant’s appeal premised on two grounds of appeal was filed on the 26th day of April, 2017.
Learned Counsel for the Appellant David Ogenyi Ogebe, submitted and discussed single issue for determination in the Appellant’s brief of argument filed on the 2nd day of March, 2018 but deemed as properly filed and served on the 24th day of October, 2019.
In the amended brief of argument of the Respondent filed by learned Counsel Rotimi Seriki on the 9th day of March, 2020 but deemed as properly filed and served on the 24th day of November, 2021, learned Counsel nominated and argued two issues for determination. The Appellant filed amended reply brief on the 11th day of August, 2020, it was deemed as properly filed and served on the 24th day of November, 2021. I read the judgment of the trial and lower Courts, I also read the briefs of argument filed by learned Counsel for the Appellant and the Respondent.
The lower Court at pages 287 to 289 of the records of appeal, that is the judgment of the lower Court, gave good reasons for arriving at its decision, justifying the variation in the sentence passed on the Appellant by the trial Court, from sentence of death to 20 years imprisonment.
The lower Court found as follows and I quote: “The Court below held in its judgment in page 101 of the records on the issue of the alleged recovered weapons, that although the PW2 stated in his evidence that “a short gun, iron rod, 4 black hoods (masks) and a cutlass” were the weapons recovered from the Appellant and handed over to the PW1, the IPO, however, stated in his evidence in page 21 of the records that a toy rubber pistol, face mask and saw blade were the weapons recovered from the Appellant and handed over to him bythe PW2 and members of the OPC amounted to a slight discrepancy that was not enough to invalidate the evidence for the Respondent.
I do not agree with the Court below that there is sharp distinction between these objects. A saw blade and a cutlass are different objects, one cannot pass for the other, in my view. What makes a robbery offence different from an armed robbery offence is whether the robbers were armed with weapons at the material time.
The weapons necessary for the offence of armed robbery are defined in Section 403B of the Criminal Code thus: … … Section 403B of the Criminal Code (supra) by which the Court concluded that the Appellant had a toy gun during the robbery operation the offence was robbery not armed robbery. I would agree with the learned Counsel for the Appellant that there is a gulf of demarcation/difference between a toy pistol or toy gun and a “short gun” and also between a cutlass and a saw blade.
Accordingly there was serious inconsistency between the evidence of the PW1 and the PW2 on the weapons recovered from the Appellant and I resolve the doubt in favour of the Appellant that no arms were recovered from him at the time of his arrest on the fateful day in question, and, also hold in consequence that the single barrel gun and saw blade mentioned in the charge sheet page 4 of the record as the offensive weapons carried by the Appellant and his comrades in the robbery operation was not supported by credible and reliable evidence.
In the instant case, there was no evidence of an eye witness, there was evidence that some weapons were recovered and handed over to the police, yet, the weapons, for reasons not explained by the Respondent, were not tendered in evidence. If the weapons were tendered in evidence they would have assisted in making out a case that arms or weapons were used by the robbers in the alleged robbery, Again the criticism Counsel for the Appellant of this aspect of the case is valid. I agree with him.
The net effect is that the verbal evidence of the recovery of the weapons after the alleged robbery without evidence by an eye witness that the weapons in possession of the Appellant at the time of the alleged robbery has no evidential value to prove that the recovered weapons were actually in the hands of the Appellant at the time of the alleged robbery operation in the house of PW2 on the day in question…”
Going through the entire judgment of the lower Court, I totally agree that the lower Court is vested with ample powers to substitute the sentence for a lesser offence pursuant to Section 179 (2) of the Criminal Procedure Act, I therefore entirely agree with the reasoning and conclusion encapsulated in the comprehensive leading judgment prepared and rendered in this appeal by my learned brother, ABOKI, JSC and join in holding that the judgment of the lower Court is sound, and the Appellant in this appeal has nothing useful to urge this Court, the appeal is frivolous and therefore lacks merit it deserves to be and is hereby dismissed, the judgment of the lower Court delivered on the 11th day of April, 2014 be affirmed.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of mentthejudg of my learned brother, Lord Justice, ABDU ABOKI, JSC. I completely agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances
UTTO v. STATE
On Friday, March 26, 2021
SC.66/2016Before Their Lordships
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Samuel Chukwudumebi Oseji Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
Judgment
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C. (Delivering the Leading Judgment): Appellant together with three other persons were alleged to have robbed Esman Fazubazic (PW2) of the sum of N2,000.00 and a Nokia 7250 mobile phone valued at N60,000.00 while armed with a gun. The incident took place at about 8 am on 4th April, 2004 at Pyramid Hotel and Conference Centre, Calabar. PW2 was at the material time, a guest at Pyramid Hotel and occupied room 205.
At about 7.30 am on 4th April, 2004, the day of the robbery, PW2 left his hotel room to meet with his workers downstairs and returned to his room after the meeting which lasted approximately twenty minutes. Shortly after, PW2 had a knock on the door and sought to know who was at the door and a voice retorted housekeeper. PW2 opened the door and was confronted by a man wielding a gun.
The man pushed PW2 to the ground and told him to lie on the floor then a second man entered the room and tied PW2’s hands behind his back. Both attackers asked PW2 for money. PW2 told them that he had some money in his pocket the men hurriedly searched PW2’s room for about 5 minutes after which they took PW2 into the bathroom and told him to lie face down on the floor. From the bathroom, PW2 sighted a third man outside the door of his room.
As soon as the robbers left, PW2 untied his hands and he immediately ran to the balcony of his room from where he saw his attackers walking out of the hotel premises, he raised an alarm which caught the attention of the hotel security.
On hearing the alarm, the robbers took to their heels but were hotly chased by the hotel security. In the course of the pursuit, PW3 – John Ekereobong Effiong, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5 call the name of the Appellant. The Appellant was arrested a few days later at Ugep, along with the co-accused persons.
The accused persons were arraigned and tried on an information containing a charge of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act. At the trial, the prosecution called 6 (six) witnesses and tendered ten (10) exhibits. In his defence, the Appellant raised the defence of alibi and did not call any witnesses. At the conclusion of the trial, the learned trial Judge in a judgment delivered on 23rd June, 2008 found all the accused persons guilty and sentenced them to death by hanging.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the lower Court via a Notice of Appeal filed on 20th June, 2014 containing five grounds of appeal. The appeal was heard and judgment delivered on 13th May, 2015, whereat the lower Court affirmed the decision of the trial Court and dismissed the appeal.
The Appellant being dissatisfied with the judgment of the lower Court filed a notice of appeal on the 14/7/2015. The Appellant amended brief of argument was filed on the 6/11/2018 while the Respondent’s brief of argument was filed on the 12/1/2019 but was deemed properly filed on 09/05/2019.
The parties adopted and relied on their respective brief of argument at the hearing of the appeal.
From the five (5) grounds of appeal, the following four (4) issues are distilled for determination: “1. Were the Justices of the Court below right to affirm the trial Court’s finding that Exhibits B and B1, the Appellant’s statement to the police were confessions notwithstanding the Appellant’s vehement denial in the statements that he participated in the armed robbery? (“improper treatment of statements issue”) Ground 1 2.
In view of the unchallenged evidence of the Appellant that he was at Ugep on the day the armed robbery took place, did alibi not avail the Appellant as a defence in the circumstance. (Alibi issue) Ground 2 3. Is this not a proper case for the conduct of an identification parade especially against the backdrop of the conflict in the evidence of the prosecution witnesses regarding the identity of the Appellant? (“Identification evidence issue”) Ground 3 4.
Whether, on the totality of the evidence adduced at the trial, the Court below was right to confirm that the prosecution proved the guilt of the Appellant beyond reasonable doubt? (“Proof beyond reasonable doubt issue”) Grounds 4 and 5.
The Respondent adopted the issues for determination as raised in the Appellant’s amended brief of argument.
APPELLANT’S SUBMISSION On issue 1, learned counsel for the Appellant submitted that a confession by virtue of Section 28 of the Evidence Act is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime and in other to sustain a conviction, a confession must be free, voluntary, direct and unequivocal and must leave no room for doubt as to the admission of guilt by an accused which in this case neither Exhibit B nor B1 is a confession because both did not directly, positively and unequivocally admit, state or remotely suggest that the Appellant took part in the alleged armed robbery.
It was further submitted that the Appellant admitted that he knew of the plans to rob Pyramid Hotel but vehemently denied taking part in the actual robbery and that cannot be said to be an admission to committing the crime which in this case makes Exhibits B and B1, not a confession.
On issue 2, learned counsel argued that when an accused person raises a defence of alibi, he means that he was elsewhere at the time the offence was committed and since the facts constituting the defence are within the peculiar knowledge of the accused, the evidential burden of proving the defence is on the accused.
He added that an accused must raise the defence of alibi promptly and properly and in so doing, the burden of disproving the offence is transferred to the prosecution who is then under the obligation to adduce evidence in proving beyond reasonable doubt that the accused was at the scene of the crime. On this, he relied on OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, ADEDEJI V. STATE (1971) 1 ALL NLR 75, ANYANWU V. STATE (2012) 16 NWLR (PT. 1326) 221.
While referring to Exhibits B and B1, it was argued that the Appellant raised the defence of alibi at the earliest opportunity as was seen in Exhibit B, the very first statement he made to the police in the aftermath of his arrest and also the Appellant was specific as to his whereabouts which on the day of the robbery he was at a church service.
On issue 3, it was submitted that identification evidence is mainly used to show that a person charged with an offence is the same as the person who committed the offence wherein such evidence must be closely examined and received with caution as shown in the case of ABUDU V. STATE (1985) 1 NWLR (PT. 1) 55, and WAKALA V. STATE (1991) 8 NWLR (PT. 211) 552.
He added that PW2 was the victim of the offence and a regular guest at Pyramid Hotel where he claimed he was robbed in his room and then identified the Appellant and two other accused persons as the robbers meanwhile, he admitted that prior to the incident, he did not know the Appellant.
He further submitted that apart from the weaknesses in the evidence of PW2, PW3 and PW5, there are noticeable conflicts in their evidence and this raises serious questions as to the credibility of the alleged identification of the Appellant by PW2 and PW5 as no evidence was adduced by the prosecution to explain the conflicts in the evidence of the witnesses which makes the quality of identification evidence adduced by the prosecution poor.
On issue 4, learned counsel submitted that PW6 of his own volition converted a complaint of housebreaking and stealing into one of armed robbery which from the report made to the police, the incident was not perceived as armed robbery by the complainant, and even if such was the case, a case of armed robbery would have been reported at the first instance.
It was further submitted that the circumstantial evidence used to convict the Appellant is so weak and unconvincing that it seems the Appellant’s conviction was based on mere suspicion rather than hard facts. He added that mere suspicion is not sufficient enough to justify a conviction, and a suspicion however strong cannot take the place of legal proof.
RESPONDENT’S SUBMISSION Arguing on issue 1, learned counsel for the Respondent submitted that Exhibits B and B1 are confessional in nature and confession is defined in Section 28 of the Evidence Act 2011 as an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime.
He further stated that the only criteria for assessing a confessional statement is that it must be free, voluntary, and unequivocal as this criteria was met by Exhibit B and B1. Also, the Appellant throughout the trial never mentioned that he was coerced to make the statement which makes the fact that he denied participating in the robbery a non-issue. He added that the Appellant was well vast with the facts of the armed robbery at which point amounts to an admission. On this, he relied on OGUDO V STATE (2011) 18 NWLR (Pt 1278).
On issue 2, it was submitted that the defence of alibi does not avail an accused whose identity is fixed to the scene of the crime by credible witnesses like PW2 and PW5 in their statements vividly identified the Appellant at the scene of the crime on the 4th of April, 2004. He added that when the Prosecution adduces evidence which fixes the presence of the accused to the scene of the crime, this effectively destroys the alibi as he relied on the case of ADETOLA & ORS V. THE STATE (1992) 4 NWLR (Pt 233) 267 and UKWUNNENYI & ANOR V. THE STATE (1989) 3 NSCC 44.
It was further submitted that the alibi raised by the Appellant does not avail him since the police investigated and found it to be false along with the fact that the Appellant was seen at the place and time the armed robbery took place.
While relying on the case of MOHAMMED V STATE (2014) 12 NWLR (PT 1421) 207- 434 and OZAKI V STATE (1990) 1 NWLR (PT 124) 92, learned counsel defined alibi as a plea/defence where an accused person alleges that the time the offence charged was committed he was elsewhere while the onus of raising the defence is on the Appellant to do so timeously with particulars of his whereabouts at the time of the incident to enable the police investigate and confirm his assertions.
He added that though the Appellant raised an alibi early, he did not furnish the police with enough particulars to enable them confirm his assertion through their investigation.
On issue 3, learned counsel submitted that the Court below was right when it decided that the Appellant was positively identified by the Prosecution witnesses as one of the armed robbers which was made clear by the testimonies of PW2, PW3, and PW5. He added that the law states that where the identity of the accused is not in issue, there is no need for an identification parade.
It was further submitted that an identification parade should be conducted where the victim’s first acquaintance with the accused was during the commission of the crime which renders the evidence at hand explicit as a result confirms the fact that the Prosecution witnesses (PW3 and PW5) knew the Appellant before the commission of the offence.
Still on evidence adduced by the prosecution witnesses, it was also submitted that PW3s evidence is credible and tangible and suffice as an eye witness account while PW5 in his evidence identified the Appellant at the scene of the crime as person he knew before the date of the incident and even called his name as this corroborates the evidence of PW3 who identified Appellant as one of the robbers he was chasing at the scene of the crime.
He added that there is no iota of conflict on the evidence adduced by the prosecution witnesses as each separate statement elucidates what transpired at various time of the incident which when put together gives a clear picture of what happened.
On issue 4, it was contended that the prosecution had proved the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt and evidence gathered during investigation revealed armed robbery which gives the Prosecution liberty to charge for the offence of armed robbery.
It was further contended that there was no iota of suspicion as the Appellant and his cohorts were identified at the scene of crime by three eyewitnesses, two of which had a prior existing relationship with him. He added that the Appellant and his cohorts narrated the events that preceded the armed robbery and the part each of them played as confession is the strongest piece of evidence against an accused, as the trial Court rightly observed.
RESOLUTION OF ISSUES On issue no. 1, the Appellant challenged the correctness of the lower Court’s decision to affirm the finding of the trial Court to the effect that Exhibits B and B1 (Extra-judicial statement of the Appellant) were confessional in nature despite his denial herein that he did not participate in the armed robbery.
Now, Section 28 of the Evidence Act 2011 provides that:- “(28) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” Confession under Section 28 of the Evidence Act supra is an admission made at any time by a person charged with, a crime stating or suggesting the inference that he committed the crime. To sustain conviction, the confession therefore must be free, voluntary, direct and positive, whether judicial or extra-judicial, provided the Court believes it is the truth.
Therefore, once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See THE STATE VS USMAN ISAH (Supra).
The duty of the Court is to consider the circumstances under which it was given and to decide what weight to be attached to it.
I have read the judgment of the lower Court with particular reference to its findings on the status of Exhibits B and B1 as a confessional statement. At pages 219 to 220 of the record of appeal, the lower Court stated as follows:- “The evidence of PW2, PW3 and PW4 established beyond reasonable doubt that the Appellant had the capacity of committing the crime. There is also evidence outside Exhibits B and B1 both direct and circumstantial that shows its contents to be true. PW2 gave evidence that the Appellant knocked at his Hotel room door, at Pyramid Hotel, Calabar.
When he opens the door, a gun was pointed at him. This culminated in the robbery of 4th April, 2004. There is therefore overwhelming evidence from the prosecuting witnesses in corroboration of the Appellant’s statements in Exhibit B and B1. These pieces of corroborative evidence are fully set out in the judgment of the lower trial Court. Therefore, agree with the trial Judge that Exhibit B and B1 by virtue of their contents are confessional statements of the Appellant. On my own part, I have searched assiduously for any possible defence that may be open to the Appellant without success.
On the accepted facts of this case, I am satisfied that the trial Court was fully justified in convicting the Appellant based on Exhibit B and B1 as confessional statements on the offence of Armed Robbery. I shall and hereby resolve issue no. 1 against the Appellant.”
To my mind, the above set out portion of the Judgment of the lower Court runs contrary to the provisions of Section 28 of the Evidence Act which categorically defined confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. The Appellant’s statement as contained in Exhibit B and B1 did not in any way state or suggest that he committed the offence charged. He merely stated how he met some friends discussing about Pyramid hotel.
He denied going to the said hotel with the others on the day of the robbery on 4/4/2004 but that he went to Ugep on 3/4/2004. This in my view, does not constitute a confession within the meaning of Section 28 and the numerous authorities on the subject.
THE CASE OF GBADAMOSI VS THE STATE (1992) 9 NWLR (PT. 266) 465 also relied on by the Appellant is quite instructive wherein this Court per Uche Omo JSC (now of blessed memory) held inter alia by stating:- “In his judgment, the learned trial Judge held Exhibit J., which is the statement of the 2nd Appellant to the police to be a confession… What the 2nd Appellant admitted in that statement is being a party to the attempted sale of a stolen car. That is not the offence for which he was charged.
To constitute a confession a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in doing so be clear, precise and unequivocal.” See also NWEZE VS STATE (2018) 6 NWLR (PT. 1615) 197, where this Court referred to Gbadamosi case with approval in defining the nature of a statement that will constitute a confessional statement.
The lower Court seems to have erred by relying on corroborative evidence of PW2, PW3 and PW4 as a justification to agree with the view of the trial Court that Exhibits B and B1 are confessional statements even in the absence of portion therein admitting the involvement of the Appellant as one of those who went to rob PW2 in Pyramid Hotel on the morning of 4/4/2004.
This misunderstanding about what constitutes a confessional statement is further amplified in the Respondents brief of argument wherein at page 9 paragraph 35, it was submitted that:- “Elechi JCA, rightly found that the evidence of PW1 stating that the Appellant knocked at his hotel room corroborated Exhibits B and B1. The evidence was disclosed to the police immediately after the incident. PW2 had the time to interact with the Appellant before the armed robbery incidence and during the robbery.”
The above submission can only be relevant where the Appellant actually confessed to robbing, the PW2 on 4/4/2004 in his extra-judicial statement but later denies or retracts the said confession. In that regard, the search for corroborative evidence to ascertain the truth of the confessional statement before relying on it for conviction becomes necessary and not when the Appellant never in Exhibit B and B1 admitted to partaking in the offence charged.
A confessional statement made by an accused person, just like an admission in civil procedure is the strongest evidence of guilt on the part of the accused person. It is even stronger than the evidence of an eye witness because it came from “the horse’s mouth” who is the accused person himself stating that he actually committed the offence charged.
In the instant case, the particulars of the offence was that the Appellant and other accused persons, on the 4th April, 2004 at Pyramid Hotel and conference centre, Calabar, while armed with guns robbed one Esman Fasubazic of the sum of N2,000 and one Nokia handset valued at N60,000. The Appellant never admitted in his statement “Exhibits B and B1” that he participated in any robbery. Confession should be direct and positive and not circumstantial. Even the evidence of PW6, the investigating police officer stated clearly that the Appellant denied in his statement that he was among the robbers.
See BASIL AKPA VS THE STATE (2008) 4-5 SC (PT. 11) page 1.
Indeed, a confessional statement makes the work of the police and even the trial Court easy as it reduces the burden of investigation and evaluation of evidence but great caution should be exercised in assessing whether or not the extra-judicial statement of an accused person constitutes a confession especially where grievous offences are involved.
In the instant case, I hold that Exhibits B and B1 do not constitute confessional statements. This issue is therefore resolved against the Respondent.
On issue no. 2, the Appellant’s contention is that he was at Ugep on the day the armed robbery took place at Pyramid Hotel and conference centre, so he could not have been one of the culprits. That is to say that he raised an Alibi in his extra-judicial statement Exhibits B and B1.
The law is that, once an alibi is raised, the burden shifts on the prosecution to investigate the alibi. See OGOALA VS THE STATE (1991) 3 SCNJ 61.
Alibi, as is now firmly established means “somewhere else.” That is to say that the person accused of committing a particular crime was somewhere else when the crime was committed. See OZAKI VS THE STATE (1990) 1 NWLR (PT.124) 92; GACHI VS THE STATE (1965) NWLR 333; SHEHU VS THE STATE (2010) LPELR-3041 (SC) ADIO VS THE STATE (1986) 3 NWLR 714; ADEDEJI VS THE STATE (1971) 1 All NLR 75. OKOSI VS THE STATE (1989) CLRN 29 at 48; OLATINWO VS THE STATE (2013) 8 NWLR (PT. 355) 126.
An accused person who pleads alibi must of necessity furnish sufficient particulars of some. He must therefore explain his whereabout and those present with him at the material time. He must not raise the defence at large but must give adequate particulars of his whereabout at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. See FABIAN NWATURUOCHA VS THE STATE (2011) 6 NWLR (PT.1242) 170.
However, where the evidence of prosecution witnesses specifically and unequivocally pins down an accused person to the scene of the crime and says that he committed the offence, failure to investigate the Alibi by the police will not result in an acquittal of the accused person. In other words, if the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the material time, notwithstanding his claim that he was somewhere else, surely his alibi is thereby logically and physically demolished.
See MICHAEL HAUSA VS THE STATE (1994) 7-8 SCNJ 144; EMMANUEL EBRI VS THE STATE (2004) 5 SCM. 48.
In his extra-judicial statement, Exhibits B and B1, the Appellant stated that on 3/4/2004, he travelled from Calabar to Ugep and on Sunday 4/4/2004 he attended Church service at winners Chapel Ugep. However, I observe from the record that the Appellant merely stated that he went to Ugep to see his palm fruits and also attended winner’s chapel Church on Sunday 4/4/2004, he did not mention anybody that saw him or was with him in Ugep either on 3/4/2004 in the Church on Sunday 4/4/2004. As earlier stated in this Judgment an accused person must not raise the defence of alibi at large.
An accused person relying on an alibi has a duly to let the police know at the earliest opportunity where and when he was at all material times. See UDO AKPAN VS THE STATE (1986) 5 SC 301. He must give adequate particulars of his whereabouts at the time the offence was committed to assist the police to make meaningful investigation and where they fail to so investigate, it creates an opportunity of acquittal in the absence of superior evidence fixing the accused at the scene of crime.
Albeit, the PW6 in his evidence at page 51 of the record testified that to investigate the alibi raised by the Appellant in Exhibits B and B1 he took a statement from the Appellant’s father who stated that the Appellant left the house at the early hours of Sunday 4/4/2004 and not on Saturday 3/4/2004. This definitely weakens the defence of alibi raised by the Appellant to the effect that he left Calabar for Ugep on 3/4/2004.
He testified at page 51 of the record as follows:- “We brought Godwin to our station and took his statement under caution. Godwin denied the allegation and alleged that he left Calabar for Ugep on Saturday before the crime on Sunday morning. To investigate the alibi, we took statement from his father. His father told us that his son left house at the early hours at the early hours of Sunday and not Saturday on (Sic) Godwin at (Sic) alleged.”
More devastating to the defence of alibi is the testimony of PW5 which fixed the Appellant at the scene of crime at Pyramid Hotel on the said 4/4/2004. He stated in his evidence at page 48 of the record as follows:- “On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As I was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards men I went outside and called him again. He would still not answer.
He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after the first accused. They asked me if I knew him and I told them he was my friend. They told me that first accused stole from Mr. Esman’s room. I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living. I used to see first accused along Akai Street, Ikot Ishie where I was living before.
When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebabsco Hotel. On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”
The fact of the pursuit of the 1st accused with his cohorts from the hotel on the 4/4/2004 and that the PW5 saw the 1st accused and shouted his name in the course of pursuing them was also corroborated by the evidence of PW3 at page 40 of the record.
The conclusion of the matter is that, firstly the alibi raised by the Appellant was investigated by the police who contacted his father and he told them that the Appellant left his house in the morning of 4/4/2004 as against the statement of the Appellant that he left the house for Ugep on 3/4/2004. This punctured his defence of alibi. Secondly, the evidence of PW5 and PW3 fixed the appellant at the scene of crime at Pyramid hotel on the morning of 4/4/2004.
If the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the natural time, surely, his alibi is deemed logically and physically demolished. Thus, where, as against the defence of alibi raised by an accused person there is a visual identification evidence of the accused by the prosecution witness which the Court believes, such evidence will effectively destroy the defence of alibi as raised. See MICHAEL HAUSA VS THE STATE (Supra) and AFOLALU VS THE STATE (2010) 5-7 SC (PT.11) 93. Consequently, this issue is resolved against the Appellant.
On issue no.3, the Appellant’s complaint is on the need for a proper identification parade given the conflicting evidence of the prosecution witnesses regarding the identity of the Appellant.
In order to ascribe any values to the evidence of an eye witness identification of a criminal, the Court in guarding against cases of mistaken identity must meticulously consider the following issues:- 1. Circumstances in which the eyewitness saw the suspect, was it in difficult conditions? 2. The length of the time the witness saw the suspect at a glance or longer observation? 3. The opportunity of close observation 4. Previous contact between the two parties 5. The lighting conditions.
See EMMANUEL OCHIBA VS THE STATE (2011) 17 NWLR (pt.1277) 663 and ORE-OFE ADESINA (aka Alhaji) & ANOR VS THE STATE, (2012) SC (PT. 111) 114.
Where the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification vide ARCHIBONG VS THE STATE (2006) 5 SCNJ 202.
In addressing these issues, the lower Court held at pages 226 to 227 as follows:- “Also the evidence of PW5 clearly identified the Appellant at the scene of the crime. A look at his evidence will further boost the truth of the matter when said:- “As I was trying to change my clothing, I saw the 1st accused (Appellant) coming out of the Hotel. I called out to him but he did not turn towards me. He was my friend before the incident. I then went outside and called him again. He would still not answer.
He started running and I saw other security guards running after him.” “This account evidence of PW5 actually and specifically fix the Appellant at the scene of crime and further demolishes the need for any sort of identification parade. So the 3rd ingredient to be proved in an offence of Armed Robbery has been established and that the Appellant took part in the robbery at Pyramid Hotel Calabar on the 4th April, 2004. This issue no. 3 is hereby resolved against the Appellant.
The alleged contradictions of the evidence of PW2, PW3 and PW5 as adumbrated in the Appellant’s brief of argument are not material enough to demolish the case of the prosecution. In addition to that, it is noted that it is not every contradiction in the evidence of the prosecution that is fatal save where such contradiction goes to the substance and materially of a fact or facts in issue in the charge as to raise doubt in the mind of the Court. Unequivocally, such doubt must be resolved in favour of the accused.
This is not the case here and the trial Judge duly considered these contradictions before he rightly convicted the Appellant on the basis of the identification evidence given by the PW2 and PW5, this issue 3 is hereby resolved in favour of the Respondent.”
Indeed, the evidence of PW5 was clear and unequivocal with respect to his prior knowledge about the Appellant whom he saw in the hotel that morning and even called out his name but the Appellant did not turn to respond, and at a stage started running out of the hotel and he (the PW5) saw other hotel security guards running after him. The PW3 also gave strength to the evidence of first knowledge of the Appellant wherein he stated in his evidence at page 40 of the record that:- “As I was running, I overheard one of our security operatives, Okoi Arikpo shouting the name “Godwin Egbe” (1st accused) as one of those who were running ahead of me.
He got on a motorcycle and they rode away.”
What is more, the PW2 who was the victim of the armed robbery in the morning of 4/4/2004 also testified on oath that the Appellant and two others were the persons who attacked him and he had known the 2nd accused person before the incident as a security staff of Pyramid hotel.
The facts as detailed above gives no room for the need to organise an identification parade given the positive recognition of the Appellant by the PW5 who had known him long before the day of the incident.
It is settled principle of criminal jurisprudence that identification parade is not obligatory where there is good and cogent evidence linking the accused person to the crime on the day of the incident. In other words, an identification parade is not required where a suspect is caught at the scene of crime or at a place so closely connected with the scene of crime or where the witnesses knew the accused person or persons.
See OGOALA VS THE STATE (1991) 3 SCNJ 61; OLAYINKA AFOLALU VS THE STATE (2010) 16 NWLR (PT.1220) 5 84.
As was held by this Court in OCHIBA VS THE STATE (2011) 17 NWLR (PT.1277) 663, it is now well established that recognition, or visual spontaneous evidence of identification in most instances is more reliable than an identification parade, and is acceptable to ground a conviction if believed by the Court. On this premise, issue 3 is resolved against the Appellant.
On issue no. 4, which deals with whether the lower Court was right to affirm that there was proof beyond reasonable by the prosecution.
Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed robbery (3). That the accused person was one of those who robbed. All of the above must be provided beyond reasonable doubt before a conviction can be sustained and proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge.
See OLAYINKA AFOLALU VS THE STATE (Supra); FATAI OLAYINKA VS THE STATE (2007) 4 SCNJ 53; CHUKWUKA OGUDO VS THE STATE (2011) 12 SC (PT.1) 71.
A perusal of the record of appeal shows clearly that there is no dispute or uncertainty on whether there was robbery at Pyramid hotel on the 4th day of April, 2004 and that the robbery was an armed robbery. Evidence indeed abound in this regard. The bone of contention is the 3rd ingredient, which is, whether the Appellant herein was one of the armed robbers.
Ordinarily, it will not be out of place to conclude that resolution of issues 2 and 3 answers the question of whether there was proof of the charge of armed robbery against the Appellant but for emphasis, I need state that the evidence PW2, PW3 and PW5 which suffered little or no challenge during cross-examination points clearly to the fact that the Appellant was one of the robbers who attacked the PW2 on 4/4/2004 at Pyramid hotel, Calabar.
Evidence of PW2 is to the effect that after the robbery he was pushed into the toilet before the robbers left his room, but as soon as they left he was able to extricate himself and ran to the balcony of his room where he saw the robbers leaving the gate of the hotel and he shouted for the security men and when the robbers heard his shout they started running and the hotel security men pursued them. He was able to pinpoint the Appellant and the 2nd and 4th accused persons as the persons that attacked him in his hotel room on 4/4/2004.
PW5 was one of the security men who pursued the escaping robbers and in the course of running after them he heard the PW5 (OKOI, ARIKPO) shouting the name of “Godwin Egbe” (first accused) as one of those who were running ahead of him and he got on a motorcycle and they rode away. He further stated under cross-examination that he knew the Appellant before the day of the incident.
The testimony of PW5 is quite clear and unequivocal as to the presence of the Appellant in Pyramid Hotel on the day and time the robbery was carried out and I am inclined to reproduce the relevant portion herein below:- It reads:- “On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards me. I went outside and called him again. He would still not answer.
He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after first accused. They asked me if I knew him and I told them he was my friend. They told me that the first accused stole from Mr. Esman’s room. I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living. I used to see first accused along Akai Street. Ikot Ishie where I was living before.
When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebobsco Hotel. On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”
From the above set out testimony of the PW5, it is glaring that he did not only see the Appellant at the scene of crime, he knew him before that day as a friend with whom he worked together at Bolaji Anani compound.
He even described clearly the type of clothes worn by the Appellant on that fateful day.
In order for a trial Court to determine whether the legal duty imposed on the prosecution has been duly discharged, the trial Court must consider the totality of the evidence before the Court after which the Court determines the issues as to whether or not the case against the accused person was made out or established beyond reasonable doubt. See ORJI VS THE STATE (2008) 3-4 SC 198.
From the evidence adduced by the prosecution as contained in the record of appeal, I am of the view that the prosecution proved its case against the Appellant beyond reasonable doubt and I have no cause to disturb the decision of the lower Court. This issue is also resolved against the Appellant.
On the whole, notwithstanding the resolution of issue one in favour of the Appellant, I hold that this appeal lacks merit and it is hereby dismissed.
The judgment of the Court of Appeal, Calabar Division delivered on the 13th day of May, 2015 is hereby affirmed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Oseji, JSC, and I agree with him that this appeal lacks merit. He meticulously and definitively addressed all the issues canvassed in this appeal, and I will only add a few words on the issue of identification parade. Identification parade is not a sine qua non for identification in all cases where there is other evidence leading conclusively to the identity of the perpetrators of the offence – see Ikemson V.
State (1989) 3 NWLR (Pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in the following situations: – Where the victim of the crime did not know the accused before; – Where the victim was confronted by the offender for a very short time; and – Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.
The essence of an identification parade is therefore to enable an eyewitness, who never knew the person accused of the crime before, to pick him out from amongst other people – see Adebayo V. State (2014) LPELR-22988(SC). See also the case of Alufohai V.
The State (2014) LPELR-24215(SC), wherein this Court per Ariwoola, JSC, very aptly explained as follows – “It is trite law that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused person is in dispute.
But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.” In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect.
But there are many cases where an identification parade is of no use whatsoever in the scheme of things, such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness, and when evidence adduced is sufficient to establish that the suspect is, indeed, the person that committed the crime – see Moses Jua V. State (2010) 4 NWLR (Pt. 1184) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors. V. State (2000) 15 NWLR (Pt. 691) 555 SC.
In this case, the identity of the Appellant as one of the said robbers that accosted PW2 at the Pyramid Hotel, Calabar, is not in question as PW2, PW3 and PW5 in particular, placed him at the scene of the crime on the day in question. PW5, who said Appellant was his friend and former co-worker, gave damning evidence that unequivocally identified the Appellant as one of the said robbers. Clearly, the prosecution proved its case against him beyond reasonable doubt.
It is for this and the other definitive reasons in the lead judgment, which I unreservedly adopt as mine, that I also dismiss this appeal as lacking in merit.
UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Samuel Oseji, JSC, privileged me with a copy of the draft judgment in this appeal for my scrutiny. Having gone through same, I am of the decided opinion that the appeal lacks in merit and ought to be dismissed.
The allegation against the Appellant is that he with 3 others at about 8am on 4/4/2004 at Pyramid Hotel and Conference Centre, Calabar, robbed one Esman Fazubazic, PW2, a guest at that hotel who occupied room 205, of the sum of N2,000.00 and Nokia 7250 phone valued at N60,000.00 while armed with a gun. At about 7:30 am of 4/4/2004, PW2 left the hotel room to meet his workers downstairs and returned to his room afterward. Shortly after, he heard a knock at his door that was identified as “housekeeper”. After he opened the door, he was confronted with a wielding gun.
He was pushed down and forced to lie on the floor. The 2nd man entered the room and tied PW2’s hand behind his back. The 2 attackers asked him for money and took him to the bathroom and compelled him to lie on the floor. From the bathroom, he sighted a 3rd man outside the door of his room. After the robbers ran away, he untied himself and ran immediately to the balcony where he saw his attackers walking out of the hotel premises. The alarm he raised caught the attention of the security personnel of the hotel, who chased the robbers.
In the course of the pursuit, PW3, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5, call the name of the Appellant. The Appellant was thereafter arrested few days later at Ugep along with the co-accused persons.
The Appellant raised alibi in his defence but that could not avail him. The trial Court sentenced him to death by hanging with his accomplices. His appeal to the lower Court did not also succeed, hence this appeal.
This appeal thus far has passed through the crucible of the trial Court, the lower Court and that of my learned brother, whose draft judgment is in tandem with that of the 2 Courts below. These prying eyes and minds painstakingly observed the case of the Appellant and came to the woeful reasoning and conclusion that his appeal is unmeritorious.
This Court has forewarned and warned itself not to interfere in such a situation unless there is a clear and manifest case of perversity and miscarriage of justice. It is a settled position of law that this Court would rarely interfere with or disturb the concurrent findings of facts of two lower Courts except where such concurrent decisions appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced or in violation of some principles of law and procedure, then this Court would not allow it to stand. See Per OKORO, J.S.C, in AKIBU V.
STATE (2019) LPELR-47630(SC) (PP. 22-24, PARAS. C-D). I will also refrain myself from going into this futility knowing that the Appellant’s appeal deserves to be dismissed.
This appeal is dismissed and the judgment of the lower Court is affirmed.
MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, S. C. Oseji, JSC, in this appeal and completely agree with the views on the issues for determination and the conclusion that the appeal is devoid of merit although, issue one (1) was resolved in Appellant’s favor.
For reasons elaborately set out in the lead judgment, which I adopt, the appeal is dismissed by me too.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Samuel Chukwudumebi Oseji, JSC. I concur with the reasoning, conclusions and orders therein.
Appearances
NJOKU v. STATE
On Friday, January 15, 2021
SC.424/2017Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
Judgment
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant herein was the defendant among twelve others, in an offence of murder of one Christopher Nwankegu (deceased) charged before the High Court of Ebonyi State.
The appellant was charged by one count information dated the June 4th, 2010, for beating and burning of the deceased by angry mob at Okposi, Umuoghara in the Abakaku Judicial Division, on the 3rd of April 2009. He pleaded not guilty.
The respondent in proof of its case called five (5) witnesses to wit PW1 (Andrew Nwankwegu brother of the deceased person) PW2 (CPL Uko Emmanuel), PW3 (Asp Madago Kerkite), PW4 (SGT Kure Army) and PW5 (DR. Festuse Iyare) after the close of the Prosecution, the defence opened its case and defendant testified as DW1 and DW2, DW3 respectively. The appellant was the DW4/7th Accused person.
The trial Judge found the appellant guilty as charged and sentenced him to death by hanging. Dissatisfied with the decision of the trial Court he appealed to the lower Court on the December 23rd, 2014. The lower Court dismissed the appeal. Dissatisfied with the decision of the lower Court, the Appellant Appeal to this Honorable Court.
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He submitted the following issues for determination by this Court; 1. Whether the improper consideration of the appellant’s defence of alibi and lack of identification parade to fix the Appellant to the murder of the deceased before the lower Court affirmed the conviction of the appellant has not led to miscarriage of justice. 2. Whether the lower Court was right in affirming that the respondent proved beyond reasonable doubt the offence of murder against the appellant so as to secure his conviction?
The respondent who did not submit any issues for determination, rather he relied on the issues submitted by the appellant.
Argument of counsel Issue one Whether the improper consideration of the appellant’s defence of alibi and lack of identification parade to fix the appellant to the murder of the deceased before the lower Court affirmed the conviction of the appellant has not led to miscarriage of justice.
The appellant’s counsel submitted that it is trite that the defence of alibi has to be raised at the earliest opportunity available to the accused with particulars. He maintained
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that there is no duty for the accused person to prove his defense of alibi. That the burden falls on the prosecution to investigate the defense of alibi as stated by the defendant. He citedSani v State [2019] 13 NWLR (pt. 1690) 551 and Dage v State [2019] 12 NWLR (Pt.1689) 204, at 218-219, para. D-C.
He affirmed that the appellant raised his defence of alibi, at the earliest opportunity which would, preferably, be in his extra judicial statement. Learned Counsel also submitted that, the appellant raised the issue of alibi during the investigative stage but this was not investigated by the police. See Alhaji Musa. Sani v The State (2015) LPELR – 24818 (SC) at p.31 paras. D-F.
He further canvassed the view that, the fact that the appellant was seen at the event or at the scene of the crime does not mean he participated. That in the matter at hand there is no clear evidence of a definite and precise time the deceased was killed and the appellant gave evidence that he left the scene at 6pm to carry his wife home.
He also maintained that the crime took place after the appellant left the scene. He also raised the issue of identity, by stating that
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different people in the crowd had their different agenda. Is to pin act on of person without no concrete evidence but only the basis that he was at the scene should not suffice as evidence. See Adamu v State (2019) 8 NWLR (pt 1675) 478 at p.510 paras, C-D, and Blessing Bout v The State (2017) LPELR (SC) at pp 9-10, paras C-E.
He stated that in an event where the identity of an accused person is in issue, the trial Court is under a duty to carefully examine the evidence to detect whether there is any weakness capable of diminishing the strength and veracity of the evidence given by the witnesses for prosecution. See Bout v The State (Supra).
He pointed out the following facts from the evidence of the PW1. He stated that PW1 arrived at the scene at 5pm where a large crowd of many people which might be around ‘1000 or 3000’ present.
PW1 went on to state that, he parked at a distance and approached the crowd beating the deceased and that the appellant beat up the deceased person. He also pointed out that the PW1 has never met the appellant before nor did he meet the appellant again at any point after the incident before the arraignment in Court.
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He noted that the PW1, stated that the deceased person was burnt in his car and at the time of arrival, and he saw police men tear gassing the crowd and shooting to disperse them. However, he asked how the PW1 was able to see the appellant in the midst of chaos.
He also submitted that the DW9, led evidence and stated that when he passed at 5.30pm, he saw a car on fire and the fire was so heavy he could not ascertain if there was anyone inside car. He restated that this Court should bear in mind that the appellant left the scene by 5pm to drop his wife, that is, 30 mins before the incident happened.
He raised five points worth consideration by this Court: – How was the PW1 able to see the appellant as one of the accused people(s), in a smoked cover atmosphere and large amount of people struggling to see the confusion. – Secondly, the fact that the PW1 left for the village at 4.35 and arrived at 5pm to watch his brother being killed at 5pm. Which means that the PW1 saw the appellant for less than 30 mins. – Thirdly, the lighting condition could have been bright or dark and no definitive evidence was led in respect of this.
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– Fourthly, PW1 at no point stated definitively how close he was to the assailants and rather stated, that he parked some distance and approached not being able to identify the man being beaten at the first instance but he made out the car and did not at any point identify himself for fear of being lynched. – Finally, PW1 stated under cross examination that he had never met or seen the Appellant before the incident and never identified or saw him after the incident, that he only saw the Appellant after incident which was in Court.
He submitted that from the above points, the PW1 did not satisfy the requirements as to the identification of the appellant as a party to the commission of the crime which was fatal to the strength or veracity of his evidence. He also pointed out that, the PW4 has failed to prove the identity beyond reasonable doubt as stated in Blessing Bout v State (supra). He maintained that PW4 mentioned in his cross examination that he observed from a distance, which brings up an element of doubt he was able point out persons involved from a crowd.
He equally stated that it is an established principle that an identification parade
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becomes crucial to the success of proving the ingredients of offence of murder. This is especially so, where there is a view that there were large number of people at this particularly scene. See Alufohai v The State (2014) LPELR 24215, (SC) PP-24-25, Para and Okiemute v The State (2016) LPELR 40639 (SC) (PP 12- 13 para-E-A).
Learned Counsel submitted that the lower Court in its judgment appreciated the importance of identification parade, but misinterpreted the law as regard identification parade. He also emphasised that the lower Court erred in his its above findings when it held that identification parade has been disguised from defence of alibi in the sense that the former does not deal with whether or not the accused person was at the scene but rather whether he was identified as having committed or participated in the commission of the crime. See NDUKWE v THE STATE [2009] LPELR 1979 (SC) Pp 58-59, para.
E-B) and IFEDAYO v THE STATE [2017] LPELR -44374 (SC) at Pp 21-27, paras. F-B.
He also pointed out that at no point did the respondent tender any other evidence that the appellant committed the offence charged, and at no point did the PW1 or PW2 give
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any information prior to the trial about the appellant. Neither did they proffer any distinct description of the appellant before or during trial but merely stated that they saw him. The appellant in fact led evidence that at the time of his invitation to the police station, the officers and PW3 were unable to identify him and his boss had to corroborate that he was indeed the AMAECHI NJOKU. This evidence was at no point rebutted or demolished and it goes to reaffirm the fact.
He further maintained that, although the appellant was at the crime scene, he was not identified beyond reasonable doubt as having acted, participated or omitted to, participated or omitted to do act which led to the death of the deceased person. However, in the light of the above submissions, the appellant counsel urged this Court to resolve this issue in favour of the appellant and discharge and acquit the appellant of the offence of murder.
RESPONDENTS CONTENTION The respondent submitted that, in this case, the Prosecution, pursuant to Section 126(a) of the Evidence Act, 2011, employed the means of direct evidence in proof of its case. He maintained that the Prosecution
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called PW1 and PW2 who severally testified in the trial Court as eye -witness and or vital witness.
He argued that to prove the case of murder against the appellant, the prosecution was never unmindful of the age long settled principle on the three essential ingredients of the offence of murder which are as following: I. That the deceased had died, II. That the act of the accused person caused the death of the deceased person and III. That the act of the accused was done with the intention to cause death or grievous bodily harm, or that the accused knew that death or grievous bodily harm was probable consequence.
See UWAGBOE V THE STATE (2008) 12 NWLR (pt.102) 621 SC, EDOHO V THE STATE (2010) 14 NWLR (2010) 14 NWLR (PT. 1214) 651 SC and IGABELE V THE STATE (SUPRA) 100.
He further contended that the PW1, in his evidence, laid that he saw the accused person and seven others as part of the mob that gruesomely murdered the deceased, this notion was seconded by the second eyewitness PW2 in his evidence of oath. He submitted that the appellant did not dispute the fact that he was at the scene of the crime, although he appeared to be inconsistent
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with his evidence. He restated that in the appellant extra judicial statement, that the appellant admitted that he was at the scene of the crime.
He also maintained that the appellant not only admitted to be at the scene but also participated in beating the deceased person. He submitted that the evidence of PW1 and PW2 on record inclusive of the evidence of the appellant as replicated above fixed, the appellant to the scene of the crime and equally underscored the role he played, that is. His act led to the death of deceased.
He also claimed that the appellant had a common intention to attack the deceased person and the part he played to execute this act was not necessary. He also submitted that the fixture of the Appellant to the scene by the PW1, PW2 and DW4 himself (the appellant) debunked his purported plea of alibi, which said alibi, the particulars were not even made available to the investigators at the earliest opportunity. See OCHEMAJE V THE STATE (2008) 6-7 SC (pt.11) 1.
He further submitted that the defence of alibi raised for the first time from the witness box is a “hoax” and a “huge joke” that does not constitute evidence upon which any
10
Court can act. See BENSON UKWUNNEYI and ANOR V THE STATE (1989) 4 NWLR (pt. 114) 131 AT 144. He submitted that the issue of identification parade was not necessary in the instant case because identification parade becomes necessary only where the eyewitnesses are not able to perform their function of clearly seeing the accused person in the act of committing the offence.
He contended that identification parade will be necessary if from the evidence of eyewitnesses, there are some doubts on the mind of such witnesses as to whether it was the accused person who committed the offence. He maintained that where there is unequivocal and consistent evidence on the part of the witnesses that they saw the accused person committing the offence, an identification parade becomes unnecessary.
However, once the eye lenses of witnesses record the identity of an accused person positively and accurately committing an offence, then reasonable doubt is thereby excluded and identification parade becomes superfluous and so unnecessary. See ADEYEMI V THE STATE (2011) 5 NWLR (pt. 1239) P.1, ONUOHA V THE STATE (1998) 5 NWLR (pt. 548) 118; BARUWA V THE STATE (1996) 7 NWLR (pt.460) 302;
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ANYANWU V THE STATE (1986) 5 NWLR (Pt. 43) 612 and OKAFOR v THE STATE (2016) 4 NWLR (pt 969) 1.
He maintained that PW1 and PW2 eyes were clear. They clearly saw the appellant commit the act and there is no evidence that the angry mob dispersed as a result of tear gas. He further submitted that the evidence of PW1 and PW2 in the regard that the appellant was part of the mob which murdered the deceased should not be dismissed. Also, that all the arguments on identification parade is misplaced and the Court should dismiss it and resolve this issue in favor of the respondent.
Resolution of issue one My Lords, as it is now well known, alibi is a Latin word, it is a combination of two words “alias” and “ibi” or “ubi’ meaning “other” and “there” or “where” respectively. In English usage, according the Black’s Law Dictionary, the word alibi is defined as “elsewhere”. See AZEEZ V STATE (2008) ALL FWLR (PT.424) 1423 at 1447 and MOHAMMED V THE STATE (2015) ALL FWLR (pt.782) 1658. Thus, where an appellant or accused person raises the defence of alibi, he is in turn saying that he was at another place when the offence was committed and could not possibly
12
to have committed the offence. It is the impossibility of a person being present at two different places at the same time that gives the defense its efficacy provided it is established. SeeCHUKWUMA EZEKWE v. THE STATE SCER [2018] SC.73/2013, (2018) LPELR 44392 SC, (2018) 3-4 SC (pt 1) P. 1442; Adekunle v State [1989] 5 NWLR (Pt. 123) 505, 513; Patrick Njovens and Ors v The State [1973] 1 NWLR (sic) 331. See also Obakpolo v. State [1991] 1 SCNJ 9; Attah v State [2010] Vol. 3 (pt. iv) MJSC 139; Njovens v. The State [1973] 5 SC 17; Afolalu v. State [2010] All FWLR (pt.538) 812; Michael Hausa v.
The State [1994] 6 NWLR (Pt.350) 281; Peter v. The State [1997] 3 NWLR (Pt.496) 625; Omotola and Ors v. The State (2009) 7 NWLR (pt.1139) 148. In this instant case, the appellant indicated that he left the crime scene thirty minutes before the incident took place to drop his wife at home. He also maintained that he raised this issue at the earliest opportunity as stipulated by law and this was not investigated by the prosecution. It is a settled principle that the defence or plea of alibi must not only be raised but must be promptly and properly raised by the
13
suspect to warrant any consideration; that is; it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time offence was committed. See Emenegor v State [2010] ALL FWLR (pt. 511) 884. In the instant case, the record of appeal, pages 256, the appellant raised his defence of alibi at the dock.
In fact, it must be part of his statement to the police if he were to make any statement; the reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity. The duty of Court to consider the alibi depends on how properly it was raised. If it was raised properly, the Court is under a duty to consider it. It is noteworthy that, the defence of alibi is not meant to be used as ploy to send the police on a wide goose chase or divert attention of the police.
Although it is the duty of the Prosecution to check on or investigate a statement of alibi by the accused person and disprove it, there is no inflexible or invariable way of doing this. If the Prosecution succeeds in fixing the
14
appellant at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby logically and physical demolished and that would be enough to render such plea ineffective as a defence. See Archibong v State [2006] ALL FWLR (pt 323) 1747 at 1785, Sunday v The State (2011) ALL FWLR (pt. 568) 922; UCHE V THE STATE [2015] ALL FWLR (pt.796) 431.
In other words, where the piece of evidence at the disposal of the Prosecution, either real or circumstantial or both, are so compelling that the accused person could not have been elsewhere than at the scene of the incident, in this circumstance, there is no need for the prosecution to carry on a goose chase investigation, in order to discharge the burden of plea of alibi.
See OLAIYA V THE STATE [2010] ALL FWLR (pt.514) Above all where the defence of alibi consists of vague accounts which are simply placed before the Courts as make-believe of plea of that defence which are completely devoid of material facts worthy of investigation there would be no need for investigation. See Saka v The State {2006) All FWLR (pt.335) 148,163.
In the instant, there is no clear evidence to prove the defence of alibi
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raised by the Appellant apart from not being raised at the appropriate time. From the record of appeal, it is clear that the PW1 to PW5 fixed the accused person at the crime scene by adducing sufficient acceptable evidence, pages 245 of the record of appeal. It is also noteworthy that the defence of alibi consists of vague, for example, the appellant argued that, he was merely present at the crime scene and he left the crime scene by 5pm 30 minutes before the incident happened.
However, according pages 8, 9, 201-206, Exhibit H, at pages 403 and Exhibit I at pages 405 of the record, the appellant submitted that he closed work at 4pm and followed the crowd to the police station. From the above statement, it is crystal clear that there is evidence of vagueness in his defense of alibi.
The appellant’s counsel also raised the issue of identification parade. He stated that there is doubt as to whether the witness’s ability in the midst of the chaos and crowd which were up “1000-3000”. He also argued that PW1 has never seen the appellant after the incident until the day of trial and there is no way he would be able to recognise him.
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However, my Lords, I agree with the reasoning of the lower Court when it held that: Identification parade is unnecessary where witnesses claim to have seen a person known to him prior to the incident. There is a difference between I have known him before and I saw him and ‘I saw one of them’ I can recognize him if I see him’. The former is a case of recognition which is distinct from identification and it does not require an identification parade.
However, in this case the failure of the police and the prosecution to conduct an identification parade cannot prove fatal because the appellant as I said earlier, was at scene of the crime. There cannot possibly be a case of mistaken identity when the appellant admitted to have visited the crime albeit on a peace mission.
In other words, identification evidence is evidence tending to show that a person charged with an offence is the same as the person, who committed the offence. The major dispute in this issue is the fact that he has never met the appellant before, neither does he know the appellant. However, the law is clear that, in a situation where the witnesses did not know the accused/
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appellant before the incident, identification parade becomes necessary and it should be conducted. See Bozin v State [1986] 2 QLRN 69. It is also worth bearing in mind that there are exceptions to this rule. For instance, in the case ofIbrahim v State [1991] 5 SCNJ 129, this Court held that: Where identification parade will not be necessary; I. where by his confession, an accused person identifies himself as the offender, II. where the offender is apprehended at the scene of crime or pursued immediately thereafter and apprehended III.
Where the offender is well known to the witness before the incident. IV. Where the circumstances of the case have sufficiently and irresistibly married the offender to the crime and the crime scene. V. Where a clear case of alibi has been put forward by the suspect. VI. Where there are clear and uncontracting eye witnesses account and identification of the person who committed the offence. On page 256 (lines 4-8) of the record of appeal, in the appellant’s cross -examination, he stated: It is not true that the DPO met the deceased person bleeding at the place, the crowd uncuffing me,
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were including beating him. I don’t know if the DPO and his men answered a distress call at the time, we were beating the deceased close Ezza North Development Centre and rescued the deceased. However, applying the principle stated above that, “where by his confession, an accused person identifies himself as the offender”, the above statement, it is unnecessary for the police to conduct an identification parade where the accused/appellant has confessed to doing the act.
In the light of the above fact, the inevitable conclusion is to hold that the Prosecution has proved its case beyond reasonable doubt that the appellant was part of the event which killed the deceased person. That being said, I resolve this issue in favour the Respondent and uphold the lower Court decision regarding this issue.
Issue Two Whether the lower Court was right in affirming that the respondent proved beyond reasonable doubt the offence of murder against the appellant so as to secure his conviction?
In all criminal cases, the onus of providing that any person committed a crime or wrongful act squarely lies on the Prosecution generally, except of course in
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some special cases or circumstances that do not apply to the instant case. The burden of proof does not shift and the standard of proof is proof beyond reasonable doubt. See OSENI V THE STATE [2012] LPELR – 7833 (SC) AT PP. 40-42, PARAS D-A AND SUNDAY AMALA V THE STATE [2004] LPELR 453 (SC) AT P. 13, PARAS D-E.
However, it was contented that, the respondent having alleged the offence of murder against the appellant, it was its duty to prove the guilt of the Appellant beyond reasonable doubt.
He maintained that the law is clear on the ingredients to prove the offence of murder: – Whether the person alleged to have been killed is dead – The cause of death and – Whether any act of the accused person is cause of death IDIOK v STATE [2008] LPELR -1423 (SC) at pp 8-9 para. A. He went on to submit that the ingredients were never an issue if the appellant was dead and the consultant pathologist who led oral evidence that the deceased person died as a result of injury due to multiple fractures to the skull.
He further submitted that, no one at the village where the incident happened ever said they knew the man being beaten and burnt. Only PW1
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came forward that it was his brother. His claim was never corroborated by Titus Nwankegu who allegedly witnessed the crime. Neither did the police nor the PW5 got a confirmation by picture evidence, Car ownership, means of identification or otherwise to ascertain beyond reasonable doubt these claims.
For the purpose he reproduced the testimonies of PW1 and PW2 led in oral evidence: – PW1 stated that, after beating him, they put him in car, poured fuel on him and the car and set fire on both the car and him, which was later burnt to ashes. PW2; there was a palm wine tapper who got out a knife and cut the man in a pool of blood while the angry mob poured fuel and threw the man inside the burning vehicle.
He also submitted that the issue as to the date raised by the Appellant at the lower Court is material to the case as the cause of death and overall state of the corpse is an important element to the offence charged and the reliance placed on the medical report (Exhibit B) in conjunction with surrounding circumstances is against the weight of evidence.
Another issue that was contended by the appellant counsel is whether the mere presence of
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the appellant at the scene of the crime is enough to prove that he committed the offence. He also submitted that, the evidence proffered the PW1 and PW2 placed the Appellant at the scene of the crime. Thus, it becomes necessary to critically examine their evidence against those given by other witnesses as well as DW4, the appellant, to ascertain whether or not his actions at the scene of the crime caused the death of the deceased person.
He maintained there was no evidence that the Appellant was ever arrested on incontrovertible evidence that he was part of the mob who murdered the deceased. He supported his submission by stating that mere presence at the scene of the crime does not, as a matter of law, render the person so present guilt of the crime. There must be a clear evidence that prior to or at the time of commission of the offence, the person present did something to facilitate the commission of the offence.
See ORJI V THE STATE (2008) LPELR 2767 (SC) p.25 paras b-d, SALAWU V THE STATE (2014) LPELR -24218 (SC) at P.13, paras A-C.
He further argued that the failure to assist a victim or act of being an onlooker in a mob action is not a crime until
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it is proven unequivocally that the onlooker either expressly or impliedly carried out some acts in furtherance of the crime and if such is indeed a crime, then PW1 and PW2 who stated that they were at the scene but merely watched the crime being perpetrated, ought to equally be guilty of charged offence.
He also pointed out that the lower Court gave no cognizance to the defence put up by the appellant and also the respondent failed beyond reasonable doubt to show that the appellant took part in the murder of the deceased person.
RESPONDENT CONTENTION ON ISSUE TWO The learned respondent’s counsel suggested that in inferring malicious intent to kill or do grievous bodily harm, regard must be paid to: I. The situation of the parties. II. The conduct and declaration of the accused person. III. The nature and extent of the violence and IV. The nature of the weapons or means used. Russell and Crime, [Eleventh Edition] p.622. However, from the above suggestions, the respondent’s counsel submitted that the situation of the parties was, inter alia, that of hysteria, suspicion, hate, cacophony, pandemonium and violence.
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The conduct and declaration of the appellant are as depicted by PW1, PW2 and PW3 in their evidence during trial. PW1 stated that the appellant and others beat the deceased person. PW2 stated that the appellant was at the scene of the crime.
He maintained that the violence was quite intense to the extent that it culminated in the brutal death of deceased person. He also submitted that, by the virtue of Section 316 (2) of CRIMINAL CODE that one of the ingredients grounding a charge of murder is an intent to cause grievous bodily harm. This can be inferred from the infliction of a machete wound by one armed with such a weapon against another who is unarmed. See ESSIEN V THE STATE [1984] 3 SC. 14 at 15-16.
He restated that the Prosecution, successfully proved its case beyond reasonable doubt to the extent that it was proved that the deceased died; that it was the act of the appellant that caused the death of the deceased and that the act of the appellant was intentional. He contended that, the pieces of evidence as adduced by the PW1 and PW2, remained unchallenged and uncontroverted in spite of their cogency in underscoring the appellant’s culpability in
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the allegation of murder. He maintained that the law is settled that a piece of evidence which is either unchallenged or uncontroverted remains an accepted proof of facts it seeks establish. See NWEDE V THE STATE (1985) 3 NWLR (pt. 13) 446.
He also submitted that the prosecution, by credible and cogent evidence (both direct and circumstantial) established the case of murder of the deceased person against the accused person; hence his conviction and sentence of death by the trial Court and the affirmation of same by the Court below.
He contended that whether or not the appellant beat or cut or set the deceased person on fire directly by himself is of no moment in our criminal jurisprudence. He cited Section 7(b) of the Criminal Code which provides that a person is deemed to have taken part in the commission of an offence and may be charge with actually committing the offence if he “… does or omits to do act for the purpose of enabling or aiding another person to commit an offence”.
On the issue of contradictions in the evidence of PW1, PW2, PW3, PW4 and PW5 inter se. He submitted that contradiction, in its proper exposition for evaluation in
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criminal law, occurs where it is shown that one piece of evidence is contrary to the fact in issue. On the issue of discrepancy, occurs when one piece of evidence stops short or contains some differences in details vis-a -vis another piece. See UDE V THE STATE [2016] LPELR 40441 (SC) BAREWA PHARMACEUTICALS LIMITED V FRN [2016] 17 NWLR pt 1540 63.
He submitted that, in these pieces of evidence, what exist are pockets of discrepancies devoid of contradictions as all points to the fact that the appellant participated in the murder of deceased person. He explained that even though there may be some elements of contradictions and inconsistencies in the evidence of witnesses at the trial, only those contradictions and inconsistencies shown by the accused person to be substantially fundamental to the main issue before the Court can lead to reversal of the judgment appealed against.
He maintained that minor discrepancies or disparities will not destroy the credibility of a witnesses. See THEOPHILUS V THE STATE [1996] 1 NWLR (pt 423) 139. He finally submitted that the Prosecution has successfully proved its case against the Appellant.
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Resolution of Arguments in Issue Two. My Lords, the superior Courts in England, Nigeria and other Commonwealth jurisdictions are unanimous on the constitutive ingredients of the offence of murder, as could be gleaned from the applicable Code provisions. Thus, in a charge of murder, the prosecution is obliged to prove: (1) that the deceased person died; (2) that his/her death was caused by the accused person; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. See Woolmington v. DPP [1935] AC 462; Hyam v. DPP [1974] 2 All ER 41; R v. Hopwood (1913) 8 Cr.
App. R. 143, [England]. The Nigerian cases on these ingredients include; AKINSUWA V THE STATE [2019] LPELR – 47621 (SC) (Pp 23-25) PARA E, THE STATE V ALI AHMED (2020) LPELR -49497 (SC) AT P.22, PARA, A-B. Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467; Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607. Elsewhere in the Commonwealth, the Courts have similarly upheld these ingredients. See R. v. Nichols (1958) QWR 46; R v. Hughes (1958)
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84 CLR 170; Timbu Kolian v. The Queen (1958) 42 A. L. J. R.; R. v. Tralka [1965] Qd. R. 225, [Queensland, Australia]. Others include:Agboola v The State (2013) LPELR 20652 (SC), IDIOK v State (2008) LPELR -1423 (SC) at pp. 8-9. The erudite and distinguished jurist cited, with approval, Ubani and Ors. v. State [2004] FWLR (pt 191) 1533, 1545; [2003] 18 NWLR (pt 851) 224; Godwin Igabeie v. The State [2005] 3 SCM 143, 151; [2006] 6 NWLR (pt 975) 100; Alewo Abogede v. State [1996] 5 NWLR (pt 448) 270. Text writers are also, agreed on this: C. O.
Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd 2009) 209 et seq; A G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passsim; K. S. Chukkoi, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); NIALS Laws of Nigeria (Annotated) Criminal Justice Administration Vol. One (Lagos: NIALS, 2008) 685; M. A.
Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq;
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As shown above, the appellant was arraigned on information before the lower Court. He was charged with the offence of murder. Counsel for the appellant contended, and rightly too, that the prosecution had the duty to prove the above ingredients beyond reasonable doubt. The lower Court, upon restating
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the above requisite ingredients of the offence of murder, dealt with them seriatim. At page 233 of the record, the Court considered the first ingredient, that is, whether the deceased died. Having gone over the testimonies of PW1, PW2 (under cross examination). DW1 and DW2, it found as a fact that “Christopher Nwankegu” the deceased person – died on 03/04/2009. This finding and conclusion establish the first element of the offence of murder and that is that the deceased person, Christopher Nwankegu has died.
The Prosecution has therefore proved this ingredient beyond reasonable doubt.” [page 233 of the record].
The appellant inveighed against this finding in his brief of argument. At page 5 of the brief, it was contended that “… [no evidence was] produced in proof of death of the deceased.” Now, at the lower Court, PW1 had testified thus: …I saw the accused persons beating my elder brother. I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces. The only person I know is Andrew Omaha, the first accused, I knew him before the incident. The second accused person gave
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machete cut. I also saw tenth accused girl. I equally saw the fourth accused, seventh accused. The people mentioned including those I did not mention their names were the people macheting the deceased i.e. including the people standing in the dock, pages 201-202 of the record.
The PW2, DW1 and DW2 all agreed that deceased was dead. It was against that background that the Court found that the first ingredient had been established. It stated thus on page 209-210 of the record: The above piece(s) of evidence, without doubt, established clearly, one issue, Christopher Nwankegu died on 3/4/2009. In the light of the foregoing, this Court finds as a fact and so holds that Christopher Nwankegu, the deceased person died on 03-04-2009. This finding and holding establish the first element of the offence of murder and that is that the deceased, has died.
The Prosecution has therefore proved this ingredient beyond reasonable doubt. We equally endorse the above findings of the lower Court. We therefore hold that the first ingredient of the offence of murder was established.
The Court expended considerable energy in the determination of the question whether the
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Prosecution proved the second ingredient of the offence of murder, namely, that the death of the deceased person resulted from the act of the accused person, pages 201-210 of the record. It considered the testimonies of PW1, DW2, DW3 and DW4. It ruled out the defence of alibi on the ground that the evidence of PW1 fixed the accused person at the scene of crime and the oral evidence of the appellant whereby he confessed to the crime pages 256 of the record.
In particular, it believed the direct eye witness of PW1 who, vividly, narrated how the deceased person met his untimely death in the hands of the appellant. The learned appellant’s counsel argued that “the mere presence of the appellant at the crime scene does not, as matter of law render the appellant guilty of the crime. Also, there is no enough evidence that the appellant committed this act.
Here, there was the direct evidence of PW1 who, both in his evidence-in-chief and cross-examination maintained that the appellant killed the deceased person in her presence. For example, on page 201-202 of the record where he stated that; … I saw the accused persons beating my elder brother.
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I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces.
Counsel for the appellant probably forgot that there are authorities for the view that a “single witness, if believed by the Court, can establish a criminal case even if it is a murder. See Effiong v. State [1998] 8 NWLR (pt 562) 362; Akindipe v. State [2012] 16 NWLR (pt 1325) 94, 116, paragraph C. As was held in Ahmed v. State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; [2001] 12 SC (pt 1) 135, Adamu v. Kano NA [1965] SCNLR 65; Azu v. State [1993] 6 NWLR (pt 299) 303.
It was also contended that the Court relied on the testimony of PW2 “whose evidence as what happened was inadmissible because he stated in his evidence in chief and admitted under cross examination that PW2 did not see the appellant taking active or even passive part in the beating and burning of the deceased but that he saw him standing by the side of the road among the crowd, [paragraph 4.2. of the appellant’s brief]. The submission is not borne out of the records. The truth is that the Court believed the story of the only eye witness, PW1. It relied solely on his testimony.
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The Court dealt with the third ingredient of the said offence in pages 201-256 of the record. In doing so, it examined the cases that have interpreted Section 316 (2) of the Criminal Code.
Arising from the evidence placed before the Court by the Prosecution, particularly, the evidence of PW1, I have no hesitation in coming to the conclusion that the act of the accused person by beating and burning the deceased person with tyres and sticks on 03-04-2009 was intentional and with knowledge that death or grievous harm was its probable consequence. The beating and burning were intentional, the accused knew that this act would either lead to death or cause grievous harm. He intended the act and had fore-knowledge of its consequence.
In the circumstance, this Court holds that the prosecution has succeeded in proving the third element of the offence of murder.
True, indeed, scholars have expressed reservation on the propriety of the Courts’ continued espousal of the “reasonable man” or natural consequence” guide in ascertaining intent. See for example, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55;
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Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited, in C. O. Okonkwo, (‘supra) at page 55; Wootton; Crime and the Criminal Law (London: Hamiyn Lectures, 1963) 33-39. According to Professor C. O. Okonkwo, SAN, Africa’s leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55. This Court still invoked the natural consequence test.
According to Katsina-Alu, JSC (as he then was), the law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely the test of what a reasonable man would contemplate as the probable result of his acts. See Adamu Garba v. State [1997] 3 SCNJ 68.
The lower Court dealt with the requirement of burden of proof in Section 138 (1) of the Evidence Act (then applicable to the proceedings), citing Dibie v. State [2004] 14 NWLR (Pt 893) 257, 284 to the effect that the Prosecution is said to have proved its case beyond
35
reasonable doubt when it has proved all the ingredients of the particular offence the accused person is charged with. It maintained that “the prosecution has discharge (sic) the burden of proof upon it by this relevant section of the Evidence Act having established all the elements of the offence of murder which the accused is charged with,” page 201-210 of the record. We agree with this view of the law. It is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. See Aigbadion v. State [2000] 7 NWLR (pt 666) 686; Agbo v.
State [2006] 6 NWLR (pt 977) 545; Igabele v. State [2006] 6 NWLR (pt 975) 100; Kim v. State [1992] 4 NWLR (pt 233) 17; Ubani v. State [2003] 18 NWLR (pt 851) 224; Ameh v. State [1978] 6-7 SC 27.
It is clear from the evidence that, at the close of its case for the Prosecution, the Prosecution had discharged the burden that the deceased person died from the intentional or reckless act of the appellant.
In consequence, I hold that the third element has been resolved. In all, I resolve the second issue agai36
have come to unavoidable conclusion that this appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Enugu Division delivered April 11, 2017, CA/E/462C/2015 is hereby affirmed and upheld and appeal dismissed
OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading in draft a copy of the leading judgment delivered by my learned brother, NWEZE, JSC. For the reasons given, I too affirm the judgment of the Court of Appeal. Accordingly the Appeal is dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal is a sister appeal to SC.421/2017: FRIDAY NWANKWO VS THE STATE in which judgment was delivered by this Court on 29th November, 2019. The appeal was dismissed. I participated in that appeal. The appellant in that appeal was one of the present appellant’s co-convicts. They, along with 11 others were tried for the murder of one Christopher Nwankwegu on the 3rd day of April, 2009 at Okposi Umuoghara in Abakaliki Judicial Division of Ebonyi State. The appellant was the 7th accused.
He, along with the 1st, 2nd and 10th accused were found guilty and sentenced to death by the trial Court while the
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remaining were acquitted and discharged. His appeal to the lower Court was dismissed by a majority of 2:1.
On the fateful day, 3rd April, 2009, the deceased was accused of kidnapping a young lady from the village. The appellant and his co-accused were alleged to have been part of a mob that matcheted and beat the deceased and thereafter put him inside his own car and burnt him and the vehicle to ashes. Soon after this dastardly act, the alleged kidnapped victim emerged hale and hearty and unscathed from the farm.
Both PW1 and PW2 identified the appellant as being a part of the mob that attacked the deceased. Their testimonies were found to be credible and accepted by the learned trial Judge, which was affirmed by the majority decision of the lower Court as follows: “… The appellant was identified by PW1 who swore that he saw the appellant among the crowd who attacked the deceased. We cannot also brush aside the evidence of PW2 who testified on oath to have seen the appellant among the crowd.
There is no doubt as regards the common intention of the crowd to kill the deceased for abducting the allegedly missing girl. I am convinced that the
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appellant was present and he played a role in the brutal assault on the deceased which caused his death. The medical report reveals that the deceased had been beaten to death before he was burnt. What a horrific actualization of a common intention to prosecute an unlawful purposed! It doss not even matter that no one saw the appellant strike the blow or poured the petrol on the deceased. When a criminal act is done by several persons in furtherance of the common Intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
See Onoha Nwaii & 4 Ors. V The State (1971) 1 NWLR Pg. 78, Okose V The State (1989) All NLR 170, Sale Eyorokoromo & Anon V. The State (1983) LPELR-1188 (SC). The circumstances of the death of the deceased is gruesome indeed. It is unfortunate that in this day and age a mob is allowed to attack and brutally murder an Innocent man on the spurious allegation that he used magic or whatever means to abduct a person. The police in my view on reading the record did not have a good showing in this case. The deceased was actually in the protective custody of the police when the crowd
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allegedly over-powered the police and the deceased became a victim of mass hysteria. The agents of government charged with public enlightenment should know that it is a criminal offence. The young deceased man’s life was wasted on a phantom allegation. Those who whipped up the mass hysteria should not go unpunished. I have no reason not to affirm the judgment of the trial Court.”
The above finding cannot be faulted. I am not persuaded to interfere. For these and the more detailed reasoning in the lead judgment, I also find no merit in the appeal. It is hereby dismissed. The judgment of the Court below is affirmed. Appeal dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had read in draft the lead judgment just delivered by my learned brother, Nweze, JSC, and I agree with his reasoning and conclusion. He dealt with the Issues raised in this Appeal meticulously and decisively and there is nothing that I could add that would make any difference or enhance the well-articulated points he made in the lead judgment; therefore, I will adopt his reasoning as mine, and it is on that premise that I also dismiss this Appeal as lacking in merit.
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UWANI MUSA ABBA AJI, J.S.C.: The Appellant among other 12 was charged for the murder of the deceased, one Christopher Nwankegu, who on 3/4/2009, by a mob action beat and burned the deceased at Okposi, Umuoghara in Abakaku judicial division. The Appellant as the 7th accused person and DW4 testified alone while the prosecution called 5 witnesses. Both the trial and lower Court are on the same page that the Appellant was guilty as charged, hence this appeal.
Before this Court, the Appellant sought for determination: 1. Whether the improper consideration of the Appellant’s defense of alibi and lack of identification parade to fix the Appellant to the murder of the deceased before the lower Court affirmed the conviction of the Appellant has not led to miscarriage of justice. 2. Whether the lower Court was right in affirming that the Respondent proved beyond reasonable doubt the offense of murder against the Appellant so as to secure his conviction?
Among the eyewitnesses of the mob murder and burning of the deceased was the deceased’s brother, who gave direct evidence as PW1. He revealed that he saw the Appellant with 7 others as part of the mob
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that grisly murdered the deceased. Same version was given by PW2 who was also directly witnessed the murder of the deceased.
In the midst of this inescapable, direct and corroborated evidence, the Appellant still had guts to put up the defence of alibi. The defence of alibi must not be used as an afterthought to escape judgment and justice! Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence.
In other words, where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See Per KUMAI BAYANG AKA’AHS, JSC in THE STATE V. USEN OKON EKANEM (2016) LPELR-41304(SC) (PP. 10- 11, PARAS. D-A).
The two Courts below have dismissed this case and my learned brother, Chima Centus Nweze, JSC, has done a great justice to it by affirming same. I have seen no iota of reason not to flow with him.
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His reasons and conclusion represent my view also. This appeal is accordingly dismissed.
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