OKON UDOH AKPAN VS THE STATE
(1991) LCN/2466(SC)
In the Supreme Court of Nigeria
Friday, May 3, 1991
Case Number: SC. 204/1990
RATIO
NUMBER OF WITNESSES TO BE CALLED BY PROSECUTION
“The prosecutions duty is only to call such number of witnesses sufficient to prove their case. They are not obliged to call all the witnesses named in the proof of evidence”. PER WALI, JSC
MEANING OF ALIBI
“The defence of ‘alibi’ when raised is to show that the appellant was not at the scene of the crime when it was committed. In fact the word ‘alibi’ means elsewhere. The law is that where such a defence is raised by the defence and sufficient particulars provided, the prosecution has a duty to investigate it”. PER WALI, JSC
JUSTICES:
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT
SAIDU KAWU JUSTICE, SUPREME COURT
SALIHU MODIBBO ALFA BELGORE,JUSTICE, SUPREME COURT
ABUBAKAR BASHIR JUSTICE, SUPREME COURT
OLAJIDE OLATAWURA JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
OKON UDOH AKPAN
AND
RESPONDENTS
THE STATE
B. WALI, J.S.C (Delivering the Leading Judgment) : The appellant was tried in the High Court of Lagos State in the Ikeja Judicial Division, upon the following charge –
STATEMENT OF OFFENCE
“Robbery punishable under section 402(2) of the Criminal Code Law Cap 31of Lagos State, 1973.
PARTICULARS OF OFFENCE
Okon Udoh Akpan (m) on or about the 17th July, 1981 along Airport Road Ikeja in the Ikeja Judicial Division, being in company of persons unknown and armed with an offensive weapon to wit; a pistol, robbed (one) Samuel Ajibua of (1) a pickup Peugeot 404 Registration No. LA 8065 ME (2) the sum of N4,521.5k and (3) two cheques for the value of N1,728.15 and N5,525.00 property of STARCO MOTORS NIG. LTD.”
He pleaded not guilty to the charge and the case proceeded to trial. The prosecution called 3 witnesses while the appellant, on his own election, gave evidence on oath. At the end of the trial and in a considered judgment by Desalu J., the appellant was found guilty as charged, convicted and sentenced to death by hanging.
Not satisfied with the trial court’s decision, the appellant appealed to the Court of Appeal which also in a considered judgment dismissed it and affirmed the conviction and sentence passed on him by the trial court. He has now further appealed to this court.
Before considering the arguments for and against the appeal, it is pertinent to state the facts of the prosecution’s case as involved in the episode and which are as follows-
The appellant, in company of two others still at large, on 17th day of July, 1981 at about 4.30 p.m. along the Express Way leading to Murtala Muhammed International Airport, and armed at the time with offensive weapons to wit, pistols, intercepted a Peugeot pickup van with the registration number LA 8065 ME, property of Starco Motors Limited, and under the threat of the said arms, particularly by the appellant, robbed Samuel Ajibua (P.W.1) and Timothy Abiodun (P.W.2) of the pickup, the sum of N4.521.5K in cash, and two cheques for the sum of N1,728.15 and N5,525.00 respectively.
While escaping from the scene of the incident with their loot, the appellant threw the pistol he was holding into the van. When he attempted to jump into the van to join his colleagues he slipped and fell down. The two others drove away in the van while the appellant was pursued and apprehended by P.W.1 and P.W.2 with the help of other people around the scene of the incident. With the help of a policeman. the appellant was taken to the Police Station at the Local Airport.
The van was, on 31st July, 1981 recovered abandoned at Ilasamaja and was towed to C.I.D. Police Station, Panti.
The facts of the appellant’s case, briefly stated are as follows: That on 17th July, 1981, at about 3 p.m., he left his house to the Airport to meet Umo Etuk Udoh, whom he described as his friend. On reaching there, he was told that Etuk had gone to Apapa and decided to wait for him. Later he changed his mind and decided to return to his house. It was on his way back home that he saw people running towards the Airport and on enquiry, he was told that armed robbers were operating on the way and so he joined in running for safety. In the course of that, he collided with another man and both of them fell to the ground. The two started fighting and the other man raised an alarm shouting “thief’ referring to the appellant. This attracted part of the running crowd to the scene of the alarm and they started to beat the appellant. He was consequently rescued by a policeman and was taken to the Police Station. He denied committing any armed robbery or participating in any.
In the brief of arguments filed by the appellant, the issues formulated for determination read thus –
“1. Whether the prosecution had proved its case beyond reasonable doubt as a vital witness required to prove the case of the prosecution did not testify.
2. Whether or not the appellant’s conviction is proper in the face of apparent serious contradictory evidence surrounding the arrest of the appellant.
3. Whether the conviction is proper as the appellant’s defence of alibi remained uncontroverted by the prosecution.
The Respondent also formulated the following three issues for determination-
1. Whether the prosecution called sufficient number of witnesses in proof of it’s case.
2. Whether there are material contradictions in the case of the prosecution.
3. Whether the appellant raised any defence of alibi in the trial court.
These three issues are subsumed in the issues formulated by the appellant.
I shall first take the issue of alibi. The appellant complained that his defence of alibi was not investigated muchless to be considered. Learned counsel submitted that both in the appellant’s evidence viva voce and his cautionary statement – Exhibit A. the appellant denied ever being a party to the crime committed, but a mere passer-by of the scene where the incident happened. He denied that he was ever taken out by P.W.3 to the Airport nor to No.3 Railway Line Iponri to investigate the appellant’s movements and his alleged place of abode. Learned counsel put reliance on the statement of the appellant under cross-examination that he did not know P.W.3.
In reply learned counsel for the respondent submitted that the appellant did not raise a defence of alibi to put the police on investigation; on the contrary, he admitted he was at the locus criminis. He said that the only defence he raised was that he was a mere passer-by at the time the robbery was being committed. Nonetheless the police investigated this and found it to be spurious. He referred to and relied on Yanor v. The State (1965) NMLR 337; (1965) 1 All NLR 193 and Gachi v. The State (1965) NMLR 333.
The defence of “alibi” when raised is to show that the appellant was not at the scene of the crime when it was committed. In fact the word “alibi” means elsewhere. The law is that where such a defence is raised by the defence and sufficient particulars provided, the prosecution has a duty to investigate it. See Obinga & Ors. v. The Police (1965) NMLR 172 and the purpose of the investigation is to adduce evidence to disprove it -Abudu v. The State (1985) 1 NWLR (Pt. 1) 55
In the present case, the particulars the appellant gave in Exhibit A regarding his place of abode and his movements on the day the robbery was committed were investigated by P,W.3 and one other Policeman. The evidence of P.W.3 on the issue was that he in company of one sergeant Akanmu Abioye went along with the appellant to Murtala Mohammed Airport to look for Umoh Etuk Udo whom he described as his brother. P.W.3 ipse dixil continued-
“At the airport, the accused took us round without pointing to anyone as his said brother. We later came back to the Police Station.”
“Later we went to the Railway Line Iponri where accused said he lived. None of the occupants at 3 Railway Line where he said he was living could identify him. None of the co-tenants identified the accused as living in the house.”
The evidence adduced by the appellant to prove his allegation of alibi was to the effect that he was only a passer-by at the scene of the crime and not a participant. It is pertinent to reproduce part of his evidence. He said-
“On my way, I saw many people running towards the Airport lkeja. Some were crossing the road to the other side. I asked one man what the matter was. He said there were robbers on the road. I was running to cross the road with other people. I accidentally tripped one man. Both of us fell. I got up. The man started to give me blow. I hit him back. We fought. The man was shouting “thief, thief”. People came round. They took sticks and came to our direction.
A man hit me with something on my head. Many joined him. I fell down. They wanted to set me on fire. Police man came. I was taken to Police Station. I made statement”.
The appellant’s evidence and Exhibit A – his statement to the police, left no one in doubt that he was at the scene of the crime. But was he the same very man identified to have participated in the commission of the robbery The answer will definitely be in affirmative taking into consideration, the evidence of P.W.1 and P.W.2 that was meticulously considered, evaluated and accepted by the learned trial judge. P.W.1 was one of the people in the pickup when they were robbed. He said in his evidence-in-chief:
“We are in a pickup van myself and Abiodun. The van was LA 8065 ME. As we were approaching Express Way, the men were standing on the road, blocking the road.
Two of them were armed. They forced us out of the car. Mr. Abiodun was driving our van. Two of the three men entered our vehicle. They asked us to hands up.
AKPAN held us up at gun point. As the van was about to move AKPAN threw his gun to the one driving our van. He wanted to jump into the van, but he fell down. The other two drove off. We ran and held AKPAN.
AKPAN is the accused in the dock.
As we were struggling with AKPAN a policeman came to help us.
I went to our office to tell them. We brought a car and we all went to the Police Station at the local airport. The policeman went with us. We made statements. I identified the accused at the police station.”
To confirm what P.W.1 said, P.W.2, in part of his evidence testified as follows:
“On 17.8.81, I was driving our cashier P.W.1 to the bank. On our way, we saw three men on the road. I was driving van LA 8065 ME. The men were armed with pistol. They jumped in front of our van. I stopped. One of the men opened my door and dragged me out. P.W.1 was also dragged out.
Two of the men entered our van.
The third could not get into the van before it was driven off. We and people around held the third man as the other two drove the van away. We caught the third man. He is the accused in the dock.”
In my view, the evidence above fixed the appellant not only at the scene of the crime, but that he was a major participant in the commission of the robbery. The purported alibi, if what the appellant framed up can be called as such, had been completely and effectively investigated and disproved by the prosecution beyond doubt. The appellant had woefully failed in his duty to prove the purported alibi, or to create any doubt however so slight, in the mind of the trial judge to tilt the verdict in his favour. See Yanor & Anor v. The State (1965) NMLR. 337 where Idigbe, J.S.C. stated the law at page 342 as follows:
“The learned trial judge finally accepted the evidence of the prosecution witnesses… who claimed that they each saw the appellants in the crowd which attacked the deceased and that they each saw the appellants strike the deceased to death with clubs. It is clear that the learned trial Judge having Weighed the evidence produced by the prosecution against the “weak” evidence of alibi adduced by the appellants, considered that the stronger evidence adduced in support of the case for the prosecution established beyond reasonable doubt the charge preferred against the appellants and we cannot therefore accept the submission that in rejecting the defence of alibi he had placed the burden of their innocence on the appellants.” (Italics supplied)
See also Gachi & Ors. v. The State (1965) NMLR 333.
The learned trial judge was not impressed with the veracity of the appellant’s evidence on the issue and so he rightly rejected it.
The second issue raised by the appellant alleges contradiction in evidence of P.W.1 and P.W.2, the star witnesses for the prosecution. The contradictions referred to were that while P.W.1 said he and P.W.2 ran after the appellant and held him when he failed to jump into the stolen vehicle to escape with his two other colleagues, P.W.2 said the two of the i.e. P.W.1 and P.W.2 with assistance of other people at the scene ran after the appellant and arrested him. I cannot see any material contradiction in the evidence of the two prosecution witnesses. Even the evidence of the appellant in chief confirmed in substance the story narrated by P.W.1 and P.W.2, when he said-
“Man was shouting “thief, thief”. People came round. They took sticks and came to our direction…they wanted to set me on fire. Policeman came. I was taken to the police station.”
All that the people around did was to help P.W.1 and P.W.2 after holding the appellant, not to allow him a chance of escaping.
There was evidence that the appellant was seen holding a gun at the scene at the time of the robbery; and that he threw the gun into the robbed van, but misfortune caught up with him when he failed to jump into it in his bid to escape with his two other colleagues. None-the-less, he tried to escape on foot by starting to run away when P.W.1 and P.W.2 ran after him and held him. This attracted the people within the scene who tried to lynch him, probably to death, but for the help of the policeman (P.W.3). It is not unexpected that P.W.1 and P.W.2 would not be able to narrate the account of what happened with mathematical precision. See Ayo Gabriel v. The State (1989) 12 S.C.N.J. 32; (1989) 5 NWLR (Pt. 122) 457 where Nnaemeka-Agu, J.S.C., restated the law with precision as follows-
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them…Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains some minor differences in details.”
The contradictions referred to by learned counsel are not of any substantial nature to have any effect on the substance of the prosecution’s case. Both the trial court and the Court of Appeal adequately dealt with them and came to a right conclusion. See Enahoro v. The Queen (1965) NMLR 265.
The last issue and which is the first one in the appellant’s brief raised the question of inadequacy of evidence in that the prosecution had failed to call a vital witness to testify.
With the evidence adduced by the prosecution, it is my view that this case was proved beyond reasonable doubt even with the testimony of the witness not called. The prosecution’s duty is only to call such number of witnesses sufficient to prove their case. They are not obliged to call all the witnesses named in the proof of evidence. See R. v. George Kure (1941) 7 WACA 175; Anthony Igbo v. The State (1975) 9-11 SC.129; (1975) 1 All NLR (Pt. 2) 70.
Having considered all the issues raised and canvassed, I find no merit in this appeal. It fails and it is accordingly dismissed. The conviction and sentence passed on the appellant and which were affirmed by the Court of Appeal are hereby further confirmed.
M. L. UWAIS, J.S.C.: I have had a preview in draft of the judgment read by my learned brother, Wali, J.S.C. and I agree that the appeal has no merit. Accordingly, I too will dismiss it and confirm the decision of the Court of Appeal which affirmed the appellant’s conviction and sentence of death imposed by the High Court.
S. KAWU, J.S.C.: I have had the advantage of reading, in draft the lead judgment of my learned brother, Wali J.S.C. which has just been delivered. I agree entirely with him that there is no substance whatsoever in the appeal and that it should be dismissed.
On the evidence adduced at the trial, I am of the firm view that any other verdict would have been perverse. I am satisfied the appellant was properly convicted by the trial court and that the Court of Appeal was absolutely justified in dismissing his appeal. I too will dismiss the appeal and affirm the decision of the two lower courts.
P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the appellant against the confirmation by the Court of Appeal, Lagos Division, of his conviction and sentence of the offence of armed robbery punishable under section 402(2)(a) of the Criminal Code Law, Cap. 31 Laws of Lagos State. 1973. by an Ikeja High Court presided over by Desalu, J.
The particulars of the charge were as follows:
“Okon Udo Akpan (m) on or about the 17th of July, 1981 along Airport Road Ikeja in the Ikeja Judicial Division being in company of persons unknown and armed with an offensive weapon to wit, a pistol robbed Samuel Ajibua of (1) a pickup Peugeot 404 Registration No. LA 8065 ME (2) the sum of N4,521.5k and (3) two cheques for the value of N1,728.1 5 and N5,525.00 property of STARGO MOTORS NIGERIA LIMITED.”
The case against the appellant was that he and two other persons on the date in question along Murtala Mohammed Airport Road. Ikeja, robbed Samuel Ajibua (P.W.1) and Timothy Abiodun (P.W.2) of the cash and other items listed in the charge. After the robbery the other two accomplices escaped in the pick-up van. The appellant in the bid to escape threw the pistol he had used for the robbery but when he tried to jump into the moving van as it was being driven away by his collaborators, he slipped and fell. The appellant was chased and apprehended by P.W.1 and P.W.2, with the assistance of other persons around the scene of the crime. The van was recovered, abandoned, at Ilasamaja some two weeks later. A police officer rescued him from being lynched.
The appellant did not deny being around the locus criminis at the time of the crime. His case was that he was merely passing-by when he was told that some armed robbers were operating in the area. When he saw several persons running away, he started to run also until he collided with one man. Both of them started to fight and the man raised an alarm and started shouting “thief”, “thief”. Then a large crowd surrounded him and started to beat him until he was rescued by a policeman.
In my opinion, the above facts do not raise a defence of alibi at all. A defence of alibi must tend to show that the accused was elsewhere at the time material to the crime. In this case, instead of tending to show that the appellant was elsewhere at the time of the crime, the facts show that he was around the scene of crime at the time material to the charge, although for a different purpose. As his case that he was there for a different purpose had been rejected, that is the end of the matter, because he had not raised any defence of alibi. For a defence of alibi to be said to have been duly raised by the appellant, he ought to have shown that he was elsewhere at the time of the crime. It is settled that although the primary and general onus of proving the guilt of an accused person is all through on the prosecution and never shifts, as the defence of alibi is a matter peculiarly within his knowledge, it was his duty to duly raise it and give such particulars as the prosecution can investigate. The evidential burden of eliciting some evidence in support thereof also lay on him. Until and unless an accused person duly raised a defence of alibi and gives sufficient particulars of his whereabouts which can be investigated by the police, the prosecution need not assume the duty of investigating or disproving the alibi. And as he failed to duly raise it or to discharge his evidential burden, the courts below were right to have rejected it See:-
Gaehi v. The State (1965) NMLR 333, at 335;
Abudu v. The State (1985) 1 NWLR (Pt. 1) 55;
Esangbedo v. The State (I989) 4 NWLR (Pt. 113) 57.
Therefore the so called defence of alibi, if raised at all, failed woefully.
As for the alleged failure to call the policeman, Agbonlahor, who rescued the appellant from the angry mob after he had been caught at the scene, it is my view that he was not a material witness. It was not in dispute that the appellant was caught at the scene and that the crowd which gathered wanted to lynch him and that a policeman rescued him. What was in dispute was his reason for being there:
whether as an innocent passer-by or a culprit in the crime charged. There’s nothing to suggest that the police officer could have helped to resolve the dispute as to his intention one way or the other. Witnesses are material when they can help to resolve the facts in dispute between the contending parties. When they play no such role, they are not material. It is settled that the prosecution is bound to call all material witnesses, and not every witness.
I also agree with my learned brother, Wali, J.S.C., in his lead judgment that there was no material contradiction in the evidence of P.W.1 and P.W.2 and that the prosecution proved its case beyond reasonable doubt.
I would therefore dismiss the appeal. It is dismissed. I also confirm the conviction of the appellant and the sentence passed on him.
O. OLATAWURA, J.S.C.: I had a preview of the judgment of my learned brother, Wali, J.S.C. just delivered. I agree with his reasoning and conclusion. This appeal is unmeritorious and should be dismissed.
The issue of not calling a material witness comes up so often that I venture to add to what Wali, J.S.C. said in the lead judgment. Where the defence considers the evidence of a witness not called by the prosecution material, the defence must in his address to the court of trial or his argument on appeal show how the evidence of such a witness would have tilted the scale of justice in his favour. Learned counsel for the appellant made this blanket statement in his brief:
“It is therefore, humbly submitted failure of the prosecution to secure the evidence of this material witness i.e. Police Officer Eghareuba Agbonlahor is fatal to the holding that the prosecution had proved its case beyond reasonable doubt. The material evidence of this police officer would determine the justice of this case …..” (Italics mine).
If the submission was made simply because the name of Police Officer Agbonlahor appeared at the back of the information filed, my answer can be found in the authority of R. v. Kuree (1941) 7 WACA 175: the witness considered material must be a witness whose evidence will resolve a VITAL issue. That a policeman (according to his statement Exhibit A) rescued him after the event is no answer to the alleged robbery that took place before the crowd gave him a good hiding. It would have been a different thing if he was with the policeman at the time he said he joined others to run to a different direction when the robbery was taking place.
I now come to another aspect of the case. The trial in the court of first instance was unduly prolonged due to unnecessary adjournments. A state counsel that is aware that not all the witnesses will be available at the hearing should inform the court when HEARING is about to start. After the third prosecution witness Sgt. Ajisafe Balogun gave evidence on 29th March, 1983 and Miss Okikiolu the learned State Counsel informed the court that her other witnesses were not in court, the case suffered these series of adjournments: 26.4.83; 19.5.83; 20.6.83; 8.7.83; 4.8.83; 29.9.83; 18.11.83; 6.12.83; 9.1.84; 1.2.84: 28.2.84; it was at this last adjournment the court considered it necessary to “close the case for the prosecution”. It was on that day the Defence Counsel asked for adjournment apparently to prepare his defence and he indicated he would call the accused to testify. The case was adjourned to 30.3.84 – a year after 3 P.W. gave evidence! On that day i.e. 30.3.84, there was a “letter from State Counsel seeking adjournments due to her ill health”. The case was adjourned to 24.4.84. On that day both learned counsel appeared. The accused gave evidence and called no witness. The evidence occupied one and a half pages of the record of proceedings. The matter was adjourned to 2nd May 1984 for address. The proceeding of that day i.e. 2nd May, 1984 is as follows:
“Miss Okikiolu for state.
Popoola for accused.
ADDRESS
POPOOLA: Facts are before the Court.
I urge the prosecution witnesses be believed (sic). Case against accused not proved. I urge court to believe the accused that he knew nothing about this case.
Cash of over N4000 – was said to have been stolen.
Money not found on accused.
Cheques were not proved to have been paid. Urges accused be discharged.
REPLY
Miss Okikiolu:-
I ask a date to REPLY.
COURT: Case adjourned till 28.5.84.
(SGD.) A. DESALU
JUDGE”
With due respect to the learned trial Judge whose patience had been unnecessarily abused due no doubt to indulgence granted by him, he ought not to have granted an adjournment for a reply when it was the same counsel that prosecuted the case throughout the trial right from the beginning i.e. on 1st November, 1982 when the plea of the accused was taken.
On 28th May the proceedings of the court are as follows:
“Accused present.
Miss Okikiolu for State
Popoola for accused.
Miss Okikiolu:
I apologise; I am not ready today for reply. I ask for another date.
COURT: Matter is further adjourned till 13.6.84
(SGD.) A. DESALU
JUDGE”
The submissions made by Miss Okikiolu in reply to Mr. Popoola’s submission are as follows:
“REPLY
Miss Okikiolu;
Accused charged with armed robbery. 3 witnesses called for prosecution. Car alleged robbed is Exhibit “B”. Witnesses P.W.I and P.W.2 identified accused and that he robbed at gun point.
Others with accused drove away Exhibit B as accused fell and was arrested and P.W.2 were treated with violence.
P.W.1 said accused threw gun to his mates who drove away the Exhibit “B”.
Accused testified his evidence is at variance with Exhibit “A” accused not a witness of truth. Evidence was an after thought. Urges prosecution prove case.
COURT: Judgment is reserved till 10/7/84
(SGD) A. DESALU
JUDGE”
It is not clear from the record why, between 2nd May 1984 to 13th June, 1984 i.e. an adjournment of about six weeks, the learned State Counsel was only able to make the shortest possible reply she could have made on 2nd May 1984. The entire proceedings from 1 P.W. – 3 P.W. and defence took only eight and a half pages of the record. From whatever angle one looks at the entire proceedings, the application for adjournment so as to reply was quite unnecessary. No encouragement should be given to Counsel who are not ready to prosecute their cases. Unnecessary and prolonged adjournments lead to frustration on the part of litigants, and sometimes they may lead to a miscarriage of justice. Section 33(4) of the 1979 Constitution is not silent either. It provides:
“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal”.
We must reduce to the barest minimum applications for adjournments.
Adjournments which are designed to delay or defeat justice should be refused.
Appeal dismissed.
Appearances
Chief Milton Paul Onwovoriole (with him, Miss Juliet A. Amas) For Appellant
AND
David Onyeike, Legal Officer, Lagos State Ministry of Justice For Respondent
