Criminal Defences

lf the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable ground that he cannot otherwise preserve the person defended from death or grievous harm, it is Lawful for him to use such force on the assailant as is necessary for the defence even though such force may cause death or grievous harm.
The defence of self defence by nature is determined essentially on facts and circumstances of each case. See OMOREGIE vs. THE STATE (2008) 12 S.C. (Pt.111) 80. The guiding principles of self defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial Court were:
(1) On the evidence, was the defence of self defence necessary?
(2) Was the injury inflicted proportionate to the threat offered? Or was it excessive?
If however the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such a self defence, then the defence cannot avail the Accused. See R. v. Onyea Maizu(1985) NRLR 93.
It is also trite that the defence is weakest where the position of the victim is weaker than that of the Accused, and hence the issues not arise; the defence will also not be available. See; Udofia vs. The State (1984) 9. S.C (Reprint) 51., Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143; Ojo Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143.

For a successful plea of self defence, the following conditions must co-exist:
(a) the accused must be free from fault in bringing about the encounter;
(b) there must be present an impending peril to life or of great bodily harm, either real or apparent as to create honest belief of an existing necessity;
(c) there must be no safe or reasonable mode of escape by retreat; and
(d) there must have been a necessity for taking life.
See: Liyal Vs The State (1988) 2 NWLR (Pt.538) 397; Omoregie Vs The State (2008) 18 NWLR (pt. 1119) 464; Kwaghsir vs The State (1995) 3 NWLR (Pt. 386) 651; Nwambe Vs The State (1995) 13 NWLR (pt.384) 385.

An accident is defined by this Court as the Result of an unwilled act, and means an even without the fault of the person alleged to have caused it. Per Karibi-Whyte, JSC (as he then was) in ALIU BELLO & ORS VS ATTORNEY-GENERAL OF OYO STATE (1986) 12 S.C. 1 at 73. Another very respected jurist of this Court, Oputa JSC, (as he then was and of a blessed memory) took it further, by considering the phrase an event which occurs by accident. He stated as follows:-
"It seems to me that the expression an event which occurs by accident used in Section 24 of Cap.42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by my ordinary person, the reasonable man of the law. In other words, the test is both subjective from the stand point of the doer of the act, as well as objective from the stand point of the ordinary man of common prudence. The event should, to qualify as accidental, be a surprise both to the doer of the act that caused it, and a surprising thing to all and sundry. An event is thus accidental. It is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence." Per Oputa JSC, in BAYO ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt.73) at Pages 639-693.

For the defence of private defence to avail an accused person, he must show that his life was so much endangered by the act of the deceased so much so that the only option that was open to him to save his life was to kill the decease.

Words can cause provocation, but that would depend on the actual words used and what these words mean to a reasonable person in the class of the appellant. See Akalezi v. State (1993) 2 NWLR (PT 273) 1.
Where the words relied upon in proof of the defence of provocation are unknown, the Court will find it difficult to reach a decision that there was provocation so grave enough to have pushed the Appellant to commit the act complained of. See Shalla v. State (2007) 18 NWLR (Pt. 1066) 240.

For the defence of provocation to succeed, it must be shown that death was caused:-
"(a) In the heat of passion,
(b) By grave and sudden provocation as to deprive the accused of self-control.
(c) Before there is time for passion to cool."
These three requirement must co-exist before the defence could be made out. See Section 222(1) of the Kano State Penal Code. Chukwu v. State (supra).

To succeed in proof of the defence of provocation, a person accused must prove the following ingredients, to wit:-
1. Sudden fight between the appellant and the deceased, which was continuous with no time for passion to cool down.
2. That in the course of that fight the accused was deprived of his self-control.
3. That the provocative acts came from the deceased.
4. That the force used by the accused in repelling the provocation was not disproportionate in the given circumstance.
The provocation must be grave and sudden and must be such as to take away from the accused the power of self-control.
See Chukwu v State (1992) 23 NSCC (Pt. 1) 44 at 53, (1992) 1 NWLR (Pt.217) 255 at 270; Ekpenyong v State (1993) 5 NWLR (Pt. 295) 513 at 521 – 522.

See also Kwaghshir V. The State (1995) 3 NWLR (Pt.386) 651 SC, wherein this Court held that four cardinal conditions must exist before taking of life of a person is justified – Accused must be free from fault in bringing about the encounter; there must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity; there must be no safe or reasonable mode of escape by retreat; and there must have been a necessity for taking the life of the person.
In Kwaghshir's Case (supra), this Court relied on the Indian case of Kosavalu Naidu (1930) MWN 502, wherein it was held that a person cannot avail himself of the plea of self-defence when he was himself the aggressor and willfully brought on himself without real excuse, the necessity for the killing of the deceased.

The Appellant also put up a defence of self-defence, which is the use of force to protect oneself, one's family or property from a real or threatened attack – see Black's Law Dictionary, 8th Ed. It is recognized that a citizen has the right to defend his person, family and property against unwarranted aggression, trespass or threat. Section 33 (2) of the 1999 Constitution (as amended) provides –
A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such and in such circumstances as are permitted by law, of such force as is reasonably necessary-
a. For the defense of any person from unlawful violence or for the defence of property.
The guiding principles are necessity and proportion – the force must have been necessary and it must have been reasonable – see Black's Law Dictionary, 8th Ed-; and Adeyeye v. State (2013) 11 NWLR (Pt. 1364) 47, wherein Ogunbiyi, JSC, observed as follows
The two questions, which ought to be posed, and therefore, answered before the trial Court, were:- (1) on the evidence, was the defence of self-defence necessary (2) Was the injury inflicted proportionate to the threat offered, or was it excessive? if however, the threat altered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defense, then the defense cannot avail the Accused. See R v. Onyeamaizu (1958) NRNLR 93.

The same evidence – different inferences; what says the law? First, there is a thin line between the defences since, as Oputa,JSC, noted in Nwede V. State (1985) 3 NWLR (Pt. 13) 444, the defences are basically conclusions drawn from surrounding circumstances and a party, who relies on them, must introduce evidence of those surrounding circumstances leading to a conclusion that he was provoked and/or fought back in self-defence; or else, a trial judge is justified in drawing other conclusions it can reasonably draw from the totality of evidence led. He further observed as follows –
After a quarrel, it is natural to expect one of two things – reconciliation or revenge. Either the parties will shake hands and become "friends" again or one party may like "to pay the other party back". Which one it is, will depend on the totality of the evidence.

The defences may be similar in that regard, nonetheless, there are also substantive and significant differences in effect – see Laoye v. State (1985) 10 SC 177, wherein Karibi-whyte, ,SC, stated that –
Whereas provocation merely reduces the offence of murder to manslaughter – – and merely is a justification for killing – – Self defence excludes criminal responsibility entirely – – The facts constituting provocation need not amount to assault likely to result in death or grievous bodily harm, whereas that is the only condition requisite for the defence of self-defence. It will be correct to state that where the fact established have gone beyond mere provocation based on words or conduct and have threatened the life of or grievous bodily harm to the accused, the proper defence available to the accused is self-defence.

In criminal trial, not only must the defences of the accused be considered, the Court is bound to consider the defences available to the accused which the accused himself did not raise, especially where the accused is facing a trial in which his life is at stake. See Nwankwoala v The State (2006) 14 NWLR (Pt 1000) 663; Adebayo v The Republic (1962) NWLR 391; Akpabio v The State (1994) 7 NWLR (Pt.. 359) 653; Oguntolu v The State (1996) 2 NWLR (Pt. 432) 503; Malam Zakari Ahmed v The State (1999) 7 NWLR (Pt. 612) 641 at 679 and 681.
In Attah v The State (2010) 10 NWLR (Pt. 1201) 190 at 221 Paragraph G-H, this Court per Adekeye JSC had thus to say:-
I must emphasize that in all criminal trials, all defences raised by an accused person no matter how weak or stupid or fanciful, or figment of imagination they may appear, they must be considered by Court.

The law does not obligate the prosecution to prove the defence available to the accused. That is why when the prosecution, while purporting to prove their case, prove the defence of the accused as part of the prosecutions case; it has been held, in PAUL AMEH v. THE STATE (1978) NSCC 368, that where in a criminal proceeding the prosecution put before the trial Court two versions of one incidence, one proving the allegation and the other the defence, they would have thereby failed to prove their case beyond reasonable doubt. See also BOY MUKA v. THE STATE (1976) 10 SC 305; ALFRED ONYEMENA v. THE STATE (1974) ALL NLR 522.

The learned appellant's counsel, in his total freedom to conduct the appellant's case in the best way he knows (and that privilege and authority cannot be denied) has narrowed the issue in this appeal to whether the mens rea had been proved beyond reasonable doubt. He has accordingly conceded the actus reus to the prosecution, and made an issue of the appellant, discharging a lawful duty at the material time; in the course of which he did what he did, the fatal shooting, in self-defence. The choice of this defence is coterminus with the admission that the appellant resorted to the actus reus in the circumstance justified by law. There can, of course, be no self-defence unless the actus reus is an admitted fact.

The position of the appellant that his defences were not taken into consideration by the two Courts below and that the trial Court had even gone to pick and choose which part of the evidence of the defence to believe and which to cast aside. It is indeed trite that a Court must consider all the defences open to the accused including even that which accused has not raised or proffered. That principle however cannot be applied in a vacuum as the defence or defences must align with facts available to the Court. It cannot be said that once an accused asserts that a particular defence avails him the Court is obligated to granting that wish without a backing by evidence acceptable, cogent and showing to demolish the version of the transaction as proffered by the prosecution. I place reliance on the cases of Ahmed v The State (1999) 7 NWLR (pt. 612) 641 at 681; Akpabio v The State (1994) 7 NWLR (pt. 359) 635 at 671.

This Court has, insightfully, illuminated the nuances of the code provisions on the defence of Provocation, R v Blake (1942) WACA 118; Shande v State [2005] 12 NWLR (Pt.939)301; Uwaekweghinya v. The State [2005] 9 NWLR (Pt.930) 227; Musa v State [2009] 51 WRN 1, 21-22;Mancini v DPP [1942] AC 1; R v Duffy [1949] 1 All ER 893]. What emerges from my survey of the extant authorities on this point is that provocation is definable as an act or series of acts which could cause, in a reasonable person [and, actually, does cause in the defendant], a sudden and temporary loss of self-control rendering him vulnerable or susceptible to passion so much so that, for the moment, he is no longer the master of his mind. The three conjunctive elements which a defendant, who want to avail himself of this special defence, must prove are that: (a) There was the deceased persons act of provocation which caused his loss of self-control; (b) He killed the deceased in the heat of passion and (c) At the time of killing, the heat of passion had not waned, Amala v. State (2004) 12 NWLR (Pt.888) 520; R. v. Afonja (1955) 15 WACA 26.These, Trinitarian elements, which must be read conjunctively, require the defendant to prove that due to the deceased person's sudden act of provocation, he [defendant] killed him [the deceased person] on the spur of the moment before his [defendant's] passion could abate or vapourise, Uluebeka v State [2000] 7 NWLR (Pt.665) 404; Nwede v State [1985] 3 NWLR (Pt.13) 444;Yusufu v State [1988] 4 NWLR (Pt 86) 96; R v Afonja (supra). In a word, the provocative act must be such that would deprive him of self-control suddenly and temporarily, Ahmed v. The State (1999) 7 NWLR (Pt.612) 641; Wonaka v. Sokoto Native Authority (1956) SCNLR 79; Kumo v. State (1967) 5 NSCC 286; Akalezi v. State (1993) 2 NWLR (Pt.273) 1; Queen v. Akpakpan (1956) SCNLR 3; Musa v. State (supra). Put differently, the situation must have been such that, at the twinkle of that interval, he...

In a charge for murder, the Court has a duty to carefully consider all defences available to an accused person, whether he raises such defence himself or not. See: Uwaekweghinya Vs The State (2005) 9 NWLR (Pt.930) 227; Edoho Vs The State (2010) 14 NWLR (Pt.1214) 651; Olayinka Vs The State (supra).

The submission of the appellant's counsel on the so – called defence of alibi glossed over the available evidence before the trial Court. Exhibit A, clearly, fixed him [the appellant] at the locus criminis, the scene of crime. As this Court held in Sunday v The State (2010) LPELR 1470 (SC) 28; B -D:
A plea of alibi by an accused person simply means that he was 'elsewhere' at the time of the alleged offence. If therefore the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the Court accepts the alibi naturally collapses." 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.

On alibi, it is settled law that a defence of alibi, when raised successfully, is a complete defence to the offence charged. It is a defence that raises doubt as to the identity of the perpetrator of the offence charged, particularly, as it contends that the accused was, at the time material to the commission of the offence, at a different location from the scene of crime thereby making it physically impossible for the accused to have been the person who committed the alleged offence as it is impracticable for a person to be at two different locations at the same time.
However, for the defence to apply, it is required of the accused to provide the prosecution/police, at the earliest opportunity, with the details of his movements on the date in question to enable the police/prosecution check the said details. See OBIODE VS THE STATE (1970) 1 ALL NLR 36; NSOFOR VS. STATE (2002) 10 NWLR (Pt.775) 274 etc.

The defence of alibi is not established by mere waving it to the trial Court. It is not sacrosanct either. This Court inDAGAYYA 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.

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 acteus reus and the mens rea of the offence. It does entitle the Defendant to acquittal and order of discharge: UKWUNNENYI v. THE STATE (supra).

Counsel submits further, and correctly too, that alibi means that the accused, at the material time, was somewhere else and not at the scene of crime when the alleged offence was committed: BALOGUN V. A.G., OGUN STATE (2002) 6 N.W.L.R. (Pt.763) 512 at 536. 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.

The law is well settled and is trite too, that for the defence of alibi to avail an accused person, such defence must be raised by him at the earliest opportunity so as to give the police enough time to investigate it and offer evidence in rebuttal or in support of it. See Salami v. The State [1988) 3 NWLR pt.670; State v Pete Eze [1976] SC 125 at 129. Similarly, an accused in order to succeed or benefit from the defence of alibi, it is incumbent upon him to give a detailed particularization of his whereabouts at as the time material to the commission of the offence he is charged with, which will also include stating the specific place(s) he was, where he was and the people he was with and if possible what transpired at the time and place(s). Such comprehensive information or particulars furnished must also be possible of being investigated unquestionably. See Udoebre v The State [2001] 6 SCNJ 66. It is only after this particularization was supplied to the police and raised timeously too, that the police has the burden to investigate it. That is to say, it must raised by the accused person at the earliest opportunity and NOT at the 23rd hour of the day.

Alibi means elsewhere. When the defence of alibi is raised, the accused person is simply saying that he was at a different place on the date of the incident.
Alibi is one of the best defence available provided it is raised with detail particulars at the earliest opportunity and not at trial.
When an accused person is arrested by the Police and accused of committing an offence, e.g. Murder, armed robbery etc, and he intends to rely on the defence of Alibi, such a defence must be raised at the earliest opportunity, i.e. timeously. This is done when he is called upon by the investigating police officer to write his statement. For an alibi to be worth investigating by the investigating police officer, the accused person must give full details (particulars) of where he was when the offence was committed. Where defence of alibi is put forward timeously, the prosecution is expected to investigate it. Failure to investigate an alibi may cast some doubt on the probability of the case for the prosecution, but such doubt quickly disappears when there is credible and compelling evidence fixing the accused person at the scene of the crime. The burden of proving an alibi is on the prosecution and not on the accused person, and the standard of proof required to establish the defence of alibi is one based on balance of probabilities. The defence succeeds when the trial judge is satisfied that it is probable that the accused was not at the scene of crime on the day the crime was committed. He was somewhere else. See Osuagwu v State (2013) 1-2 SC (Pt.1) P. 37; Adebiyi v State (2016) 1-2 SC (Pt.IV) P.95.

It is trite law that the first test to be applied in determining whether the defence of provocation could avail an accused person is the effect of alleged provocation would have had on a reasonable man. The act of provocation must be one which could incite a reasonable man of the appellant's/accused standing in life and education, to lose his self control.
Adebiye v State (2013) 7 NWLR (1354) 597; Musa v State (2009)15 NWR (pt.1165) 467.

With due deference to the learned counsel for the appellant, the defence of provocation avails on accused person who killed his victim in heat of passion before the time to cool down. For the defence of provocation to benefit an accused person and also for same to be upheld, the accused must clearly show or establish the under mentioned conditions:-
(a) That the act he relied on is actually Provocative,
(b) That the provocative act deprived him of self control,
(c) The provocative act came from the deceased.
(d) The sudden fight between the accused and the deceased was instantaneous and continuous with no time to cool down; and
(e) The force used by the accused in repelling the provocation is not disproportional in the circumstance.
See Nwede v State (1985) 3 NWLR (pt.13) 444; Akalezi v State (1993) 3 NWLR (pt.273) 1; Okonji v State [1987) 1 NWLR (pt.52) 659; Ekpenyong vs. State (1993) 5 NWLR (pt. 295) 513. Frank Uwagbae v The State(2008) 12 NWLR (pt. 1102) 627.

When an accused person relies on the defence of alibi he is simply saying that when the offence was committed he was not at the scene of the crime, but somewhere else. The defence of alibi must be raised at the earliest opportunity by the accused person and this would be when he makes his statement to the Police investigating officers. It must be detailed on where he was on the date in question, and who he was with.

Following in the path laid out by this Court and followed in numerous judicial decisions, I would restate that the principles guiding the use of alibi as a defence open to an accused such as the appellant herein is not an automatic exculpatory defence such that once raised, the accused gets off. The reasons are that an alibi must be put across timeously or at the first opportunity with details for the prosecution or the police to investigate to confirm the truth thereof or that the alibi did not hold water.
However, that an alibi was raised by an accused and not investigated does not translate to the alibi's acceptance as gospel if the evidence adduced by the prosecution at the trial effectively fixed or apprehended the accused at the scene of crime at the material time. When that happens the alibi is demolished or destroyed and becomes ineffectual or of no use.
I shall refer in support to the case of Monday Odu v. The State (2001) 10 NWLR (Pt.722) 668 at 674 per Mohammed JSC as follows:-
"...Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. I do not have to repeat what this Court had said in several decisions, but the onus of establishing alibi, being a matter within the personal knowledge of an accused lies on him. It is not enough for the accused to say to the Court that I was at a particular place away from the scene of crime, he has to prove his assertion. Even if the police have failed to investigate such assertion, the accused has the onus of adducing evidence on which he relies for his defence of alibi. The issue of the defence of alibi has failed."
See alsoHausa v State (1994) 6 NWLR (Pt.350) 281 at 301-302.

Whenever an accused person intends to set up a defence of alibi, he should do so at the earliest opportunity during the investigation to enable the investigation police officer to investigate the allegation of being elsewhere when the offence was committed. Where it is done for the first time in Court, as in this case, the defence does not avail the accused person. This is so because at that stage the investigation had been concluded and there is no way the truth of the defence could be tested. Seelkemson v The State (1989) 3 NWLR (Pt. 110) 455; ldiok v State (2006) 12 NWLR (Pt. 993) 1; Dagayya v State (2006) 7 NWLR (Pt. 980) 637.

It is also settled that a defence of alibi, to be worthy of investigation, must be precise and specific in terms of the place that the Accused was and the person or persons he was with and possibly what he was doing there at the material time. SeeShehu v. State (supra) and Ochemaje v. State (supra), where Tobi, JSC expatiated as follows-
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 time of 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 witnesses or under cross-examination of the acused or his witness. The learned trial judge relied on the evidence of PW1, PW2, Pw3 and PW6 I am of the view that the defence of alibi is a mere farce and an afterthought. It fails. After all, a trial Judge will not take seriously a defence of alibi which is porous and cosmetic. That is the way I see Appellants defence of alibi.

Once the defence is properly raised by an accused during investigations, it is the duty of the police to investigate it and for the Prosecution to disprove it.
But it is not in all cases that failure to investigate an alibi will be fatal to the case of the prosecution. This Court made this point clear in Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423, wherein it adopted its decision inHemyo Ntam v. State (1968) NMLR 86 as follows-
There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the Appellants were identified by three eye witnesses there was a straight issue of credibility and we are not able to say that the Judges findings of facts were unreasonable or cannot be supported having regard to the evidence. If the alibi had been true it would have been open to the Appellant to call witnesses in support on them and neither of them did so.
And also in Michael Hausa v. State (1994) 6 NWLR (Pt. 350) 281-
Once the prosecution through its witnesses establish that they (the witnesses) saw the Appellant committing the offence charged, a defence of alibi by the Appellant raises the straight issues of credibility to wit; whether the evidence of the witnesses is believable and if believed, the alibi is logically demolished or fizzles into thin air and so doomed.

The defence of alibi is based on the physical impossibility of an Accused person being guilty by placing him in another location at the relevant time. It also means the fact or state of having been elsewhere when an offence was committed. See Blacks Law Dictionary, 8th Ed., Shehu v. State (2010) 8 NWLR (Pt. 1195) 112, Dagayya v. State (2006) 7 NWLR (Pt 980) 637 SC. Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57.

The law is trite also, that where an accused person raises the defence of Alibi, the law requires him to state at the earliest opportunity and to give information as to his whereabouts at the time of the commission of the offence and with who or in whose company he was with. ln otherwords, he has to give detailed particulars of where he was other than at the scene of the crime. Such defence must also be raised at the earliest opportunity in order to give the police notice for them to investigate or verify the truth of his alibi defence. Failing to do this, such defence if raised, will not avail him. See Adisa Wale v The State (2013) 14 NWLR (pt 1375) 567; Esannegbedo vs The State (1989)4 NWLR (pt. 113)57.

It is settled law that any evidence of Alibi raised by an accused person can not be brushed aside unless the prosecution produced a much stronger or greater and more convincing evidence to counter or neutralise it.

It is not only incumbent on the appellant to inform the police of his alibi but he should also furnish the police with detailed particulars of his whereabouts so that same could be properly investigated. See the case of Okolo Ochemaje V. State (2008) 10 SCM page 103 @ 107 where it was held that:-
"the police in order to investigate a Plea of alibi must have specific particulars of where the accused was at the material time --
It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused at the time the crime was committed ......... 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.

The defence of alibi connotes the physical impossibility of a Person or an accused to be somewhere else and at the same time at the scene at a crime. As rightly submitted by the learned counsel for the appellant, alibi is a complete defence, which if proved in favour of an accused person, absolves him of any criminal liability.
The defence must be raised timeously at the earliest opportunity of contact with the investigating security agencies. The appellant must furnish the agencies with sufficient particulars about his whereabouts on the day in question. Thereafter, the duty shifts to the prosecution to investigate the alibi and affirm or disprove same. The defence is destroyed by a contrary evidence fixing the accused at the place of crime. However, if successfully disproved the defence fails. See this Court in Ikemson v. The State (1989) 3 NWLR (Pt. 110) P 455 @ 479 780.

The law is well pronounced on the character of the defence of provocation. In other words, where it succeeds, it has the effect of whittling down the Punishment stipulated from the offence of murder to manslaughter. See Edoho V. The State (2010) All FWLR (Pt. 530) 1262 at 1287 and Ihuebeka V. The State (2000) FWLR (Pt 11) 1827 at 1850.
However, for provocation to constitute a defence in murder cases, it must consist of three elements which must co-exist, namely:
(a) That the act of provocation was done in the heat of passion.
(b) That the loss of self-control was both actual and reasonable, that is to say, the act was done before there was time for cooling down.
(c) That the retaliation is proportionate to the provocation.
Again see the case of Edoho v. The State (supra) at page 1286.

Also from the said phrase by the appellant supra, it would appear that he intends to raise the defence of self-defence which in law is a complete answer to a charge of murder.
However, in order to avail himself of this defence the accused person must show:-
(i) that his life was so much endangered by the act of the deceased:
(ii) that the only option left for him to save his own life was to kill the deceased; and
(iii) that he did not want to fight and was prepared to withdraw.
See the cases of Isaac Stephen v. The State (1986) Vol. 17 NSCC (Pt 2) 1416 at 1421 and Oduak Daniel Jimmy v. The State (2014) All FWLR (Pt. 714) 103 at 118.

The law is settled that self- defence will only be a successful or complete defence to the charge of murder or manslaughter where the accused person reacted spontaneously to an unprovoked attack. See: Chukwu v. State(1992) 1 NWLR (PT. 217) 255; Kim v. State (1992) 4 NWLR (Pt. 233) 17 at 49; Duru v. State (1993) 3 NWLR (Pt. 281) 283 at 292 293; Baridam v. State (1994) 1 NWLR (Pt. 302) 262.

This is so because if the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, then the defence cannot avail the Accused- see Adeyeye v. The State (2013) 11 NWLR (Pt. 1360) 47 at 66-67 SC.
Thus, it is lawful if the nature of the assault on the Appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased that is necessary to defend himself. This does not arise if he is no longer in apprehension of death but rather an unjustified aggressor, who retaliated in a disproportionate manner, then the killing is considered intentional, and the defence of self defence will not avail him – see Owhoruke V. COP (2015) LPELR-24820(SC).
In other words, the guiding principles are necessity and proportion; the force must have been necessary and it must have been reasonable, and the two questions that must be addressed by the trial Court are – (1) On the evidence, was the defence of self defence necessary? (2) Was the injury inflicted proportionate to the threat offered, or was it excessive?

As both Parties rightly submitted, self defence is a defence based essentially on the facts of each case, and authorities abound on when the defence can avail an Accused Person – see Omoregie V. State (Supra) and Kwaghshir V. State (1995) 3 NWLR (Pt.386) 651, wherein this Court enumerated the ingredients of the said defence, and these are:
– The Accused must be free from fault in bringing about the encounter;
– There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;
– There must be no safe or reasonable mode of escape by retreat; and
– There must have been a necessity for taking life.

The word "alibi", is a latin word which means, the appellant was elsewhere and NOT at the scene the crime was allegedly committed. See Sowemimo v State (2004)11NWLR (pt.885)515; Aiguoreghian v State (2004)3 NWLR (pt.860)367. Ordinarily, when such defence is raised at the earliest opportunity, the prosecution has a duty to investigate and check the details of the "alibi' and verify his assertion. But if the accused fails to furnish the particulars of his whereabouts, then that failure would weaken his defence. See Sowemimo V State (supra).
However, in a situation where an accused person is unequivocally pinned to the locus in quo as in this instant case, as one of the accused persons who committed the offence, then the defence of alibi would not avail him.

Indeed the defence of alibi is a magic wand when raised and investigated thereof proves it to be true. It automatically exculpates the accused from blame when the alibi iestablished. I rely on Mohammed v The State(2015) 243 LRCN 122 at 148; Egwumi v The State (2013) 220 LRCN (Pt.1) 224; Egbirika v The State (2014) 227 LRCN 1.

As regards the defence of self-defence, it is trite law, that the defence of self-defence can only avail an accused person if he proves that he was a victim of attack which causes him reasonable apprehension of death or grievous harm and even then, the accused is only allowed by law to use such reasonable force to defend himself or repel the attack to defend himself from the danger and he is entitled to it even though such force may cause death or grievous harm.
However, if the act of self defence is committed after all the danger or threat from the assailant is past and by way of vengeance, then the defence will not avail the accused. See R v. Dummemi (1955) 15 WACA 75: Uwagboe v. The State (2008) 4 SCNJ 471-472.

In the first place, the defence of provocation when raised by an accused person presupposes and amounts to an admission by the accused that the death of the deceased was as a result of the act of the accused/appellant. See Edoha v. State(2010) 42 NSCQR (pt. 1) 477/478.

However, where an accused person decides to raise the defence of Alibi while testifying for his defence in the Court (as done by the appellant in this instant appeal), it could be regarded that he deliberately wanted to deny the prosecution its right and duty to investigate the defence. See Gachi v. The State (1965) NMLR 333; Udoebre v The State (2001) 6 SCNJ 66-67.
Moreover, where an alibi defence is vague, nebulous and misleading and is also devoid of material facts worthy of or impossible to be investigated by the police, in such circumstance the trial Court can rightly discard it, rather than to engage on wild goose chase all in the name of investigation. In that case, the Court would have nothing before it to consider as alibi defence. In the result, all l am saying is that once alibi defence was not raised timeously, or no particulars of where the accused was on the material date and time was furnished or that it was vague or a mere camouflage, then it does not qualify as a valid defence worthy of being investigated. As I said supra, the appellant defence of alibi raised fell short of particulars and was also not raised timeously. It was therefore rightly rejected by the trial Court and the Court below was equally right in affirming the finding of the trial Court in that regard.

However, for the defence of Alibi to avail an accused person, the law requires that he must raise such defence at the earliest opportunity to enable the police investigate it and therefore he must offer evidence. See Salam v. The State (1988) 3 NWLR 670; State v. Peter Eze (1976) SC 125 at 129/130; State v. Francis Odili (1977) 4 SC 1 at 5-6.
Also in order to take advantage of the defence of Alibi the accused must give a detailed particularization of his whereabouts on the crucial day and time of the offence which should also include the specific places he was, the people in whose company he was and what had transpired on the said day and at the said time and place or places. Once these comprehensive information are furnished to the police at the earliest stage then the police are duty bound to investigate and ascertain the veracity of such information. See Udoebre v. The State (2001) 6 SCNJ 66. Furthermore, these information must be furnished to the police preferable in the accused person's cautionary statement for the police to investigate.

The appellant in his defence raised issues of alibi and self defence. I seek to say quickly that the two defences are very much contradictory and thus bringing the appellant again into the same situation of inconsistency as he was when he gave evidence in Court which contradicted his extra-judicial statement to the police.
While defence of alibi exonerates the accused totally from being present at the scene of the crime, self defence, though, it also exonerates completely from culpability, it however connotes that the accused was at the scene of crime and in fact was responsible for the act which he alleges was necessitated as a reason for his exercise of self defence.

A plea of alibi, if found to be true is a complete defence which absolves the accused person of the charge. A plea of alibi crumbles if the prosecution adduces sufficient and accepted evidence to fix the accused person at the scene of the crime at the time the offence was committed. See
Osuagwu v. State (2013) 5 NWLR (Pt.1347) p.360
Ozaki v. State (1990) 1 NWLR (Pt. 124) p.92 Gachi v. State (1965) NWLR p. 333

Alibi means elsewhere. That is to say when the offence was committed the accused person was not at the scene of the crime. He was somewhere else. When an accused person is arrested by the police and investigation commences, the accused person is asked under caution to write a statement. It is at this stage that the accused person raises the defence of Alibi.
He must state the day, time, and address of where he was when the offence was committed. The onus is not on the accused person to establish alibi rather it is on the prosecution to disprove it, but the police has no duty to disprove a worthless alibi.
When the defence of alibi is raised in detail stating exactly where he was on the day and time the offence was committed the police must investigate it properly to see if it is true.

Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v. The State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu and Anr v. The State (2001) 5 SCNJ 115, 120; (2001) 10 NWLR (pt. 772) 668. However, the said defence would be unavailing in a situation, as in this case, where the accused person raised it during the trial, Hassan v. State (2001) 6 NWLR (pt 709) 305.

Now, to the question of alibi. As pointed out earlier, the trial Court found at pages 89 -90 of the record, that:
....this defence of alibi that he went to the market on the date of the incident was raised for the first time in the witness box in Court, it was not ever contained in Exhibit B...
The best defence and evidence of alibi is one pleaded at the first opportunity (usually to the Police when making a statement) and not at the time of trial...
I, entirely, endorse this view which was affirmed by the lower Court. True, indeed, to be entitled to the beneficent effect of the defence of alibi, an accused person must raise it at the earliest opportunity, Hassan v. The State (2001) 6 NWLR (pt 709) 286, 305, 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, Ibrahim v. The State (1991) 4 NWLR (pt 186) 399; Nwabueze v. The State (1989) 3 NWLR (pt 86); Ikemson v. The State (1988) 3 NWLR (pt 110) 455.
What is more, the said defence must be unequivocal as to the particulars of his whereabouts and those present with him, Onyegbu v. The State (1995) 4 SCNJ 275, 285-286; Ibrahim v. The State (supra); Balogun v. AG, Ogun State (2002) 6 NWLR (pt 763) 512, 535-536; Eke v. The State (2011) LPELR – 1133 (SC) 16. It is only where an accused person, such as the appellant, raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v. State (2000) 4 NSCQR 60 and to disprove same, Eke v. The State (supra).

In Edoko v State LPELR -24402 (SC) 62 – 63, this Court found it curious that the appellant (just as the appellant in the instant appeal) set up the defences of self defence and provocation at the same trial. Listen to this Court's adumbration of the rationale for its curiosity: Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former (the defence of self defence) is an exculpatory defence because, where it is established, it exonerates the accused person, Uwaekweghinya v. The State (2005) 9 NWLR (pt 930) 227, the latter is, merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter. In effect, the defence of provocation does not exonerate the accused person. It, only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v. State (1976) LPELR-SC. 300/1975; (1976) 6 SC 128, Akang v. State (1971) 1 All NLR 47, 49; Musa v. State (2009) LPELR-SC.323/2006; (2009) 15 NWLR (pt 1165) 465; Ada v. State (2008) LPELR-SC.242/2004; (2008) 13 NWLR (pt 1103) 149; (2008) 34 NSCQR 508; Ajunwa v. The State (1988) 1 SC 110; Laoye v. The State (1985) 2 NWLR (pt 10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan; Spectrum Books, 2000) 240; C. O. Okonkwo, "The Unlawful Act Doctrine and the Defence of Accident" in The Nigerian Bar Journal Vol 11 (1973) 93-97. It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent defences – defences that cannot avail an accused person at the same time, Ibrahim v. State (1991) LPELR-SC.167/1990; (1991) 4 NWLR (pt 186) 399; (1991) 5 SCNJ 129; see, also, the very incisive, and the most stimulating, article by the cerebral Professor of...

The defences of alibi and the provocation are inconsistent and mutually exclusive. The accused person who pleads alibi can only be understood to say that he, being elsewhere and not at the scene of crime, knows nothing of the facts constituting the alleged offence. In effect he denies both the actus reus and the mens rea, particularly the actus reus. On the other hand, the defence of provocation clearly admits the actus reus, but not the mens rea. Provocation merely denies criminal responsibility. I think the passage in Lord Simon's opinion inHOLMES V. DPP (1946) 2 ALL E. R. 124 best illustrates this point and I here below reproduce it –
The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden temporary loss of self-control whereby malice, which is the foundation of an intention to kill or to inflict grievous bodily harm is negative.
It is logical therefore to suggest or propound that the man who pleads alibi and denies stoutly "ever being at the scene" of crime cannot, at the same time, be heard to plead provocation as his defence to the same offence. With the plea of alibi there is no evidence on which the defences of provocation and self-defence can be pegged.

Against this background,I take the view that learned counsel for the appellant, unfairly, pilloried the lower Court's findings and conclusion. I find no justification for that indefensible approach. As this Court held in Uluebeka v The State (2000) LPELR – 3354 (SC) 48; B – D: It is trite law that in a criminal trial, a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See, Umani v. The State (1988) 1 NWLR (pt. 70) 274. It is also common ground that a defence of provocation properly raised will result in reducing the offence of murder to that of manslaughter. See, Ajunwa v. The State [1988] 4 NWLR (pt. 89) 380. However, in Annabi v State (2008) LPELR – 495 (SC) 26; A- C, this Court was emphatic that: ...the defences open to an accused person which a Court whether trial or appellate has a duty to consider, in my respectful view, must be, the defences or such defence or defences that appear or are contained in the evidence before the Court or that appear or are contained in the Record of Proceedings. In other words, the duty of the/a Court, is to consider all defences raised in evidence in the record of proceedings even if the accused person did not specifically raise them and this is regardless of whether such defence or defences is or are hopeless, weak or stupid. See, the cases of Njoku v. The State (1993) 7 SCNJ (pt. 1) 36, 41, where it was held that it would be a different thing, if a trial Court, merely conjectures such defences and citing the cases of Apishe and Ors. v. The State (1971) ANLR 53 and Okpere v. The State (197) (sic) ANLR 1; Grace Akpabio and Ors. v. The State (1994) 7-8 SCNJ. (Pt. III) 429; Ofoke Nwambe v. The State [1995] 3 SCNJ 77, just to mention but a few. Thus, it is not a matter of speculation by the Court to consider every and all imaginable defences open to an accused person not raised in evidence before the Court or contained in the record of...

On whether or not the respondent advanced sufficient evidence, direct, confessional and circumstantial to prove the alleged offences against the appellant.
This Court had said again and again that the ingredients of the offence of armed robbery are well stated in a long line of cases including Otti V. State (1993) 5 SCNJ 143. It has been held that a crime could be established by all or any of three ways or methods which are namely: –
1. By direct evidence of an eye witness.
2. By circumstantial evidence
3. By confessional statement
See Emeka v. State (2001) 14 NWLR (pt. 734) 666 at 683

It is logical therefore to suggest or propound that the man who pleads alibi and denies stoutly "ever being at the scene" of crime cannot, at the same time, be heard to plead provocation as his defence to the same offence. With the plea of alibi there is no evidence on which the defences of provocation and self-defence can be pegged.

Against this background,I take the view that learned counsel for the appellant, unfairly, pilloried the lower Court's findings and conclusion. I find no justification for that indefensible approach. As this Court held in Uluebeka v The State (2000) LPELR – 3354 (SC) 48; B – D:
It is trite law that in a criminal trial, a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See, Umani v. The State (1988) 1 NWLR (pt. 70)

Now, my understanding of the extant jurisprudence on the defence of accident, in particular, is this – for an event to qualify as an accident, it must be the result of an unwilled act: an event which occurs without the fault of the person alleged to have caused it or an event, totally, unexpected in the ordinary course of events, Adelumola v. The State [1988] 1 NWLR (pt. 73) 683, 692; Oghor v. State [1990] 3 NWLR (pt. 139) 484; Thomas v. State [1994] 4 NWLR (pt. 337) 129; Adekunle v. State (2006) LPELR-107 (SC) 11, E-F.
Thus, where an event eventuates from an act or omission independent of the exercise of the will of a person, or where such event is the result of an accident, our Criminal Law does not hold the actor criminally responsible. In a word, an event which is neither intended nor foreseen by the actor is said to be an accident, Oladipupo v. State(1993) LPELR – 2549 (SC) 19, E-F.
This defence, which is codified in Section 24 of the Criminal Code, is exculpatory. In effect, when it avails the accused person, it exonerates him, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009); A.G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988); K. S. Chukkol, 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); M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq;P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) etc; Uwaekweghinya v. The State [2005] 9 NWLR (pt. 930) 227; Oladipupo v. State (supra); Ibeh v. State (1997) 1 NWLR (Pt. 484) 632; Akinbisade v. State [2006] 14 NWLR (pt. 1000) 717.

It is equally trite that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant's case supports his case. See: Kodilinye Vs Odu 2 WACA 336 @ 337; Onwugbufor vs Okoye (1996) 1 NWLR (Pt. 424) 252; Shittu vs. Fashawe (2005) 7 SC (Pt. II) 107; Nruamah & Ors vs. Ebuzoeme & Ors. (2013) 1 SC 31 @ 55 56.

His situation emphasizes the vital importance of defence counsel knowing when it is imperative that an Accused person should testify, to explain particular aspects of the case, which he alone can explain. This is because resting the defence on the case of the Prosecution will not present the trial Court with any explanation or an alternative story. See Nwede v. The State (1985) 3 NWLR (Pt.13) 444 SC. See also Igabele v. State (supra) where this Court per Ogbuagu, JSC, stated-
It was for him to rebut the presumption that he committed the crime, at least, to cast a reasonable doubt on the prosecution's case by preponderance of possibilities. But remarkably and significantly, his learned defence counsel, refused (as he was entitled to do as the master of his client's case) to cross-examine some of the vital witnesses - He also refused the Appellant testifying and rested the case of the defence on that of the prosecution and thereby "drowning" the Appellant or letting him "stew in his own juice" so to speak/say.

In effect, his right to remain silent, even when arraigned for a criminal offence, is an inviolable one. But he was taking a huge risk; the law says that he is obliged to make his defence, if his remaining silent will result in being convicted on the case made out against him. See Okoro v. The State (1988) 5 NWLR (Pt. 94) 255 at 266 SC. and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100 at 133 SC.

I wish to add that I do not endorse the Court of Appeals postulation in Adisa v. State (1991) 1 NWLR (Pt. 168) 490 that wherein the defence of alibi is raised during trial, the prosecution can ask for adjournment in order to investigate the alibi. What then happens to a holding by a Court of trial that the alibi raised during trial is an afterthought? And as happened in this case where the alibi was raised 11 years after the commission of the offence during trial? For the alibi to be considered the accused has to raise the defence timeously particularly at the time he is making his statement to the police to enable them to investigate the alibi to ascertain its veracity with a view to exculpating the accused from the crime allegedly committed. See Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 464: Ozaki v. State (1990) 1 NWLR (Pt. 124) 92.

However, where a defence of alibi is successfully raised, the result is an acquittal of the accused relying on the defence. The defence is said to be a combined defence of lack of act and mens rea. That is, that he was not present at the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. See; Benson Ukwunnenyi & Anor Vs. The State (1989) NWLR (Pt.114) 131; (1989) LPELR 3353 (SC).

What is the meaning of alibi? It is a defence where a suspect or an accused claims that at the time when the offence or crime with which he is charged was committed he was elsewhere. It is the law that the police must be notified of the suspect's intention to raise it as a defence. Normally, the defence must be raised at the earliest opportunity by the suspect in answer to a charge by the police, at the investigation stage, to enable the police establish the truth or falsity of the claim. See;R. Vs. Lewis (1969) 2 Q.B1; Adio Vs The State (1986) 3 NWLR 714; (1986) 2 N.S.C.C. 815; Adedeji Vs. The State (1971) 1 All NLR 75; Danlami Ozaki & Anor Vs. The State (1990) 1 NWLR (Pt.124) 92; (1990) 1 All NLR 94; (1990) LPELR 2888 (sc).
In other words, alibi means, when a person charged with an offence says that he was not at the scene of the crime at the time the alleged offence was committed. That he was indeed somewhere else, as a result, he was not and could not be the one who committed the offence. See; Okosi Vs. The State (1989) 1 CLRN 29. Alibi is a defence, based on the physical impossibility of a suspect's guilt by placing him in a location other than the scene of the crime at the particular time. It is the fact or state of having been elsewhere when an offence was committed. See; Akeem Agboola Vs. The State (2013) All FWLR (Pt.704) 139; (2013) 54 NSCQR (Pt.11) 1162; Black's Law Dictionary 9th Edition,page 84 .

Alibi is Latin for "elsewhere"' It also means the fact or state of having been elsewhere when an offence was committed- Black's Law Dictionary 8th Ed". The defence of alibi is based on the physical impossibility of the Accused being guilty by placing him in another location at the relevant time, and it is trite that once the defence is properly raised by the Accused during investigations, it is the duty of the Police to investigate it. However, it is the duty of an Accused who relies on an alibi, to give details there of to enable the Police investigate it. His duty, involves letting the Police know at the earliest opportunity, where he was at the material time – see Shehu V. State (supra), wherein this Court held that the defence is complete, once the Accused Person discloses to the Police, his whereabouts, without more, at the time of the commission of the crime. But it is not in all cases that the failure to investigate an alibi will be fatal. Once there is evidence that the Accused committed the offence, this raises the question of credibility to wit; whether the evidence is believable and if believed, the alibi is logically demolished or fizzles into thin air and so doomed – see Hausa V. State (1994) 6 NWLR (Pt, 350) 281 SC and Ntam V. State (supra). What is more, 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...

First is the issue of alibi raised by the appellant in his evidence. The said alibi was raised by the appellant at pages 103 to 104, when appellant was giving evidence. Indeed as held by the lower Court from pages 151 to 152, a defense of alibi must be brought timeously to the attention of the police, to afford ample time to investigate. The position of the law is that where an accused person intends to raise a defense of alibi, he must do so at the earliest opportunity usually during the course of investigation, so that the police would investigate the defense as they are wont to do so as to uncover the truth of the assertion. However it is the further position of the law that the ipse dixit of the accused person is not sufficient proof of his alibi, for he must go further to furnish the police with sufficient particulars of his whereabouts as at the time of the commission of the offence alleged. See Akindipe vs. The State (2016) 15 NWLR (pt. 1536) 470 @ 502; State vs. Ekanem (2017) 4 NWLR (pt. 1554) 85 @ 107; Esangbedo vs. State (1989) 4 NWLR (pt. 113) 57, Ndidi vs The State (2007) 13 NWLR (pt. 1052) 633.

There is no disputing that the trial Court is duty bound to consider all the defences put up by the accused person, express or implied, such that even if those defences seem to stem from a fertile imagination, fanciful with porous lies or even doubtful. However the Court is obliged to be cautious in giving consideration on the defences in order not to be unwittingly sucked into a cesspool of a fairy tale in the guise of reality.

The concurrent findings of the two Courts below tally with the views of this Court. See Kolawole v. State (2015) ALL FWLR (Pt.778) 864 at 887 wherein the Supreme Court had this to say:
"Assuming, without so suggesting, that the appellant merely acted as lookout while the armed robbery operation was being committed, would he have successfully put up a defence of non-participation in the principal offence of robbery? The answer is found in Section 7 of the Criminal Code Cap. C38, Laws of the Federation of Nigeria, 2004 which provides thus:-
7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and be charged with actually committing it.
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the instant case, it is not in doubt the appellant was the person who procured other co-accused persons to carry out the robbery on the night in question considering his statements and the confessional statements of other accused persons."
I also refer to the case of David Idiok v. State (2006) 12 NWLR (Pt.993) 1.

Manslaughter is the unintentional killing of a human being. Such a killing is not premeditated but accidental in the sense that it was not intentional. In this case, the killing of the deceased was premeditated. Not accidental but a well thought out plan to put an end to the life of Solomon Adeyemi.
Click the link below to read full Judgment:
Popoola v. State LGC(23/2/2018) F

For emphasis, it has to be said that it is not in all cases where the police fails to investigate an alibi such as the case in hand where the alibi was raised timeously that such failure would be taken to have a fatal effect on the case of the prosecution. This is so when the evidence proffered by the prosecution is such that the accused was well at the scene of crime at the material time. In the case at hand the evidence of PW1 was credible and strong enough to destroy the alibi raised by the appellant and so the fact that the alibi was not investigated is of no moment. See Ayan v The State (2013) 55 NSCQR 228-229; Gachi v State (1965) NMLR 333; Odidika v State (1977) 2 SC 21; Yanor v State (1965) All NLR 193; Salami v State (1988) 3 NWLR (pt.85) 670 at 677.

Indeed the defence of alibi is a magic wand when raised and investigated thereof proves it to be true. It automatically exculpates the accused from blame when the alibi iestablished. I rely on Mohammed v The State(2015) 243 LRCN 122 at 148; Egwumi v The State (2013) 220 LRCN (Pt.1) 224; Egbirika v The State (2014) 227 LRCN 1.

It is trite law, that failure to tender the offensive weapon used during a robbery operation can not result in the acquittal of the accused person because of the strong possibility of accused person to destroy, throw or do away with the offensive weapons after the commission of the crime in order to exculpate himself from criminal responsibility. See Olayinka v State (2007) 9 NWLR (pt 1040) 561; Okosi vs AG Bendel State (supra). In fact, there is no principle of law, that insists that the prosecution must always tender weapons used during robbery operations in order to obtain conviction. See Olayinka v State (supra)
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Giki v. State LGC(19/1/2018)F

The position of the law is that, the test of provocation is objective and not subjective.
It is the test of the reasonable man not the test the particular accused. Therefore, in the determination whether there was provocation, the Court will consider what a reasonable man in the street will do.
The bottom line arrived at by this Court is that, defence of provocation will not avail an accused if there is evidence of organized or premeditated vendetta which clearly represents the case of the Appellant before this Court. On this point, see:- USMAN KAZA VS THE STATE, 33 NSCQR (Pt.2) 1351 at pages 1418 – 1419; DARE KADA VS THE STATE (1991) 11 SCNJ 19 at 41; ABUBAKAR DAN SHALLA VS THE STATE 32 NSCQR 277. In Dan Shalla's case (supra) I.T. Muhammad, JSC., had this to say at pages 338 – 339 of the report.
"In order to enjoy the above facility (of Section 221(1) Penal Code) the accused must lead evidence to establish the following ingredients."
"(i) The act of provocation is grave and sudden;
(ii) The accused must have lost self control, actual and reasonable.
(iii) The mode of resentment must bear a reasonable relationship to the provocation."

While it is the right of an accused person to raise a defence, the law also imposes it as a duty on the Court to consider other defences that may be available however stupid or unreasonable for whatever it is worth. This is a settled position of the law. See:- DSP GODSPOWER NWAKWOALA & ANOR VS THE STATE (2006) 14 NWLR (Pt. 1000) 663 at 686; MBANENGEN SHANDE VS THE STATE 22 NSCQR 756 at pages 772-773; SAMPSON N. NWAEGBINYA VS THE STATE; 21 NSCQR 570 at 584; LADO VS STATE (1999) 9 NWLR (Pt'619) 369 AT 371; LAOYE VS STATE (1985) 2 NWLR (PT. 10) 832 AT 833; GABRIEL VS STATE (1999).

To posit that the prosecution to prove criminal intimidation needs establish physical injury is a pedestrian viewpoint if I might humbly say so. This is because the need for the proof of a personal physical injury suffered by the complainant and in this case the PW1 is not an element or ingredient of the offence of criminal intimidation in establishing it as an offence worthy of conviction. It is enough if the prosecution is able to establish that the accused and in this case the appellant made a threat by which the victim is thrown into fear of a harm to himself or any other person of an instant harm. What the prosecution needs to prove are:
a. That the accused threatened the complainant or some other persons.
b. That the threat was of some injuries to him.
c. That it was given to cause alarm to him or to cause him not to do or omit to do any act which he is legally entitled to or not bound to do.

The word "alibi", is a latin word which means, the appellant was elsewhere and NOT at the scene the crime was allegedly committed. See Sowemimo v State (2004)11NWLR (pt.885)515; Aiguoreghian v State (2004)3 NWLR (pt.860)367. Ordinarily, when such defence is raised at the earliest opportunity, the prosecution has a duty to investigate and check the details of the "alibi' and verify his assertion. But if the accused fails to furnish the particulars of his whereabouts, then that failure would weaken his defence. See Sowemimo V State (supra).
However, in a situation where an accused person is unequivocally pinned to the locus in quo as in this instant case, as one of the accused persons who committed the offence, then the defence of alibi would not avail him.

Perhaps it is apt to kick-start the resolution of this issue by reiterating that there are three modes of proof of criminal cases. These methods or modes of such proof are:
(a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly points to the sole fact that the accused and no other person committed the offence charged.

In order to prove the offence of murder against an accused person, the prosecution has the onus to establish beyond reasonable doubt, the following ingredients of the offence, namely: –
(i) That the death of a human being was caused
(ii) That it was caused by the act of the accused; and
(iii) That the act or acts was/were done with the intention that death was to be caused; or
(iv) The accused knew that death would be the probable consequence of his act or acts.
See Sunday Omini vs. The State (1999) 12 NWLR (pt.630) 68 or (1999) 9 SC 1 or (1999) LPELR 2638 SC.

Anyasador v. State LGC(9/2/2018)E

This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: –
(a) Evidence of eye witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged.
(b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him.
(c) Through circumstantial evidence.
See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (pt.734) 666; Ohunyon v. State (1996) 3 NWLR (pt.436) 264; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911; Igri v. The State (2010) 7 WRN 47; Ogba v. State (1992) 2 MLR (pt.222) 146.

Anyasador v. State LGC(9/2/2018)E

The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.

Anyasador v. State LGC(9/2/2018)E

The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence.

Anyasador v. State LGC(9/2/2018)E

The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.

Anyasador v. State LGC(9/2/2018)E

It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1.

Anyasador v. State LGC(9/2/2018)E

It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1.

Anyasador v. State LGC(9/2/2018)E

In ABOGEDE V. THE STATE (1996) NWLR (Pt.118) page 270 at 280 the Supreme Court held that:-
"When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the learned trial judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person."
See alsoR. V. OGUCHA (1959) 4 FSC pg 64.
In SHATTA V. FRN (2009) 3 NCC 527 the Court of Appeal held that:-
"Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court, it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage but the issue to be determined is that if the case for the prosecution is believed, is there anything for the appellant to explain."

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge discharge him.
In AJULUCHUKWU V. THE STATE (2012) 7 WCC 281 the Court of Appeal on when a no submission will be upheld, stated that:-
"Where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross-examination, that it cannot reasonably be basis for conviction, the respondents should be discharged without being called upon for defence."

If the commission of a crime by a party to any proceeding is directly in issue in any proceeding it must be proved beyond reasonable doubt. In determining whether there has been a proof beyond reasonable doubt the Court evaluates the totality of the evidence called by the prosecution. See BOY MUKA v. THE STATE (1976) 9 – 10 Sc 193.

Where from the evidence furnished a witness has been inconsistent, without explanation, or when one witness discredits another, it is not for the Court to pick and choose which witness to believe and which not to believe among such witnesses. It cannot accredit one witness and discredit the other in such circumstance. See ONUBOGU v. THE STATE (1974) 9 SC 1 at 20; ATEJI v. THE STATE (1976) 2 SC 79 at 83 – 84.

This Court has also stated in PAUL AMEH v. THE STATE (1978) NSCC 308 that the prosecution cannot be said to have proved an allegation of criminal offence beyond reasonable doubt if they put before the Court two versions of the same incident. This happens when the prosecution put before the Court evidence pointing at his guilt and another set of evidence establishing his defence or innocence.

The law is that it is not enough for an accused to raise the defence of Alibi at the stage of trial. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. If the Appellant said he was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime.
Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in question. See:- YANOR VS THE STATE (1965) 1 All NLR 193, and OBIODE VS THE STATE (1970) 1 All NLR 35.

In a charge of murder, the onus is on the prosecution to prove the following beyond reasonable doubt:
a. That the deceased died;
b. That the death of the deceased resulted from the act of the accused; and
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its possible consequence.
See: Akpan Vs The State (1994) 9 NWLR (Pt.368) 347; Jimoh Vs The State (2014) 3 SC 1; (2014) LPELR – 22464(SC); Sunday Udor Vs The State (2014) 5-6 SC (Pt.II) 177; (2014) LPELR-23064 (SC).

It must be timeously raised as soon as the accused who seeks to rely on the defence of alibi is arrested and the offence for which he is charged is explained to him.

For the prosecution to establish its case on murder, it must prove the following ingredients:-
1. That the death of Theophilus Afolabi has actually occurred.
2. That the death was caused by the Appellant.
3. That the act that led to the death of the deceased was done with the intention of causing death.
4. That the Appellant knew or had reason to know that death would be the probable consequence of his act.
See Ogumo v The State (2011) NWLR (Pt.1246) 314; Giwa V. The State (1996) 4 NWLR (Pt.443) 375 at 337; Akpan V. The State(1994) 25A LRCN 137 at 146; Adekunle v The State (2006) 43 WRN 1 at 24; Edwin Ogba v The State (1992) 2 NWLR (Pt.222)164 at 198 paragraph G; Onah v The State (1985) 3 NWLR (Pt. 12) 236.

Although the burden on the prosecution is to prove its case beyond reasonable doubt, the prosecution has a discretion to call on those witnesses it requires to establish its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. I have also not come across any rule of law which imposes an obligation on the prosecution to call a host of witnesses in proof of its case. See Adaje v The State (1979) 6 – 9 SC 18: Okonofua v State (1981) 6 – 7 SC 1; Saidu v State(1982) 4 SC 41; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Ugwumba v State (1993) 5 NWLR (Pt. 296) 660; Udo v State (2006) 15 NWLR (Pt. 1001) 179.
However, the law is settled that for the prosecution to prove its case beyond reasonable doubt, it must call vital witnesses whose evidence may determine the case one way or the other. Failure to call such vital witnesses is fatal to the prosecution's case.

It is to be said that proving the offence beyond reasonable doubt is not synonymous with the number of witnesses called by the prosecution. This Court had restated what is required in meeting the standard of proof beyond reasonable doubt in the case of Akalezi v State (1993) per Ogwuegbu JSC at page 13 as follows:
"Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of evidence tendered by the prosecution. In the case of Miller v Minister of Pensions (1947) 2 ALL ER 372, it was held that Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt."
The learned Supreme Court jurist further stating that:
"The Court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. One single credible witness can establish a case beyond reasonable doubt."
What is expected of the prosecution is to exercise of discretion on who to call to testify and is not bound to utilize those named in the proof of evidence. This is so since the Court can convict on the evidence of only one witness if that witness is not an accomplice in the commission of the offence and his evidence sufficiently probative of the offence charged. see Ofoke Nwambe v State (1995) 3 NWLR (Pt.384) 385 at 408; Onafowokan v State(1987) 3 NWLR (Pt.61) 538; Ogbodu v State (1987) 2 NWLR (Pt.54) 20; Adaje v State(1979) 6-9 SC18.

It is also trite that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused, and the defence alleges that the identification was mistaken, the Court must closely examine the evidence and in acting on it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt. See: Ukpabi Vs The State (supra); R V. Turnbull (1975) 3 All ER 549: Abudu Vs The State (1985) 1 NWLR (Pt.1) 55 @ 51 – 62; Mbenu vs The State (1988) 3 NWLR (Pt.84) 615 @ 628; Ikpo Vs The State (2015) 2 – 3 SC (Pt.III) 88 @ 111 lines 6 – 21 per Kekere-Ekun, JSC.

However, if the evidence of a lone witness is believed, his identification of an accused person can sustain a conviction, even on a charge of murder.
See: Ochiba Vs The State (2011) 12 SC (Pt.IV) 79.

There is no law which imposes an obligation on the prosecution to tender as evidence the weapons used to commit an offence. Most often at times the culprits do discard the weapons after committing the offence. Similarly stolen items are rarely recovered. And where they are recovered, it is not absolutely necessary that they must be tendered in evidence in order to secure a conviction.

The law imposed no obligation on the prosecution to call a host of witnesses to prove its case. All it needs to do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. See Olayinka Vs The State (2007) 9 NWLR (Pt 1040) 561. And for the sake of emphasis the evidence of a single witness, if believed by the Court can establish a criminal case. See Effiong Vs The State (supra).

It is settled law that in order to discharge the burden of establishing the guilt of an accused person beyond reasonable doubt in a charge of armed robbery, the prosecution must prove the following:
1. That there was a robbery or series of robberies.
2. That each of the robberies was an armed robbery.
3. That the appellant was the robber or one of those who participated in the armed robbery.
See: Bozin vs The State (1985) 2 NWLR (Pt.8) 465; Suberu Vs. The State (2010) 8 NWLR (Pt.1197) 586; Ani V. The State (2003) 11 NWLR (Pt.830) 145; Attah V. The State (2010) 10 NWLR (Pt.1201) 190 @ 244 B D; Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 551.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA). PER TOBI, J.C.A.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA). PER TOBI, J.C.A.

Generally, provocation has been described to be some acts or series of acts done by the deceased to an accused which would cause any reasonable person and actually does cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him, for the moment, not the master of his mind. See; Ahmadu Lado Vs. The State (1999) 13 NWLR (Pt. 619) 369. From the above, what will amount to provocation in a particular situation must be considered with the peculiar facts in mind.
For instance, the station in life of the person and the society in which he lives . OLUKAYODE ARIWOOLA, J.S.C

It is settled beyond equivocation that the defence of accident will not admit a deliberate action, even if the accused person did not intend the result of his action. See the cases of ADEGBOYE V. STATE (2017) LPELR – 42099 (SC); ADEKUNLE V. STATE (2006) LPELR – 107 (SC); THOMAS V. STATE (1994) LPELR – 3239 (SC). PER ADAMU JAURO, J.S.C

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). Helen Moronkeji Ogunwumiju, J.S.C.