DAVID v. STATE
(2022)LCN/16376(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/AS/102C/2016
Before Our Lordships:
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
UZUAZOYIBO DAVID APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
IT IS THE DUTY OF THE PROSECUTION TO INVESTIGATE AND REBUTE A PROPERLY RAISED ALIBI
Once an alibi is properly raised by an accused person in his statement to the police, it is the duty of the prosecution to investigate and rebutit. It is however the duty of an accused person to give the details of his alibi to enable the prosecution investigate the same. He is to let the Police know at the earliest opportunity where and with whom he was at the material time. See Akpan v. State (1986) 3 NWLR (Pt. 27) 225, Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. JOSEPH EYO EKANEM, J.C.A.
EVALUATION AND ASCRIPTION OF PROBATIVE VALUE ARE PRIMARILY THE FUNCTIONS OF THE TRIAL COURT
Evaluation of evidence and ascription of probative value to it are primarily the functions of the trial Court. So long as there is evidence on record from which the trial Court came to or could have come to the conclusion that it did, an appellate Court would not interfere with the conclusion of the trial Court. See Ikem v. State (1985) 4 SC (Pt. 2) 30 and State v. Oray (2020) 7 NWLR (Pt. 1722) 130. There is sufficient evidence on record to justify the conclusion of the trial Court and I therefore see no reason to interfere with it. JOSEPH EYO EKANEM, J.C.A.
THE EVIDENCE OF THE PLEA OF AN ALIBI
In this instant case, the evidence of the alibi did not give credence to the plea of the Appellant as he was not with either of them within the particular time the crime was being carried out (6pm – 7pm). The evidence of PW1 consequently remains uncontradicted. See; ONYEKABA v STATE (2019) LPELR – 46836 (CA) where this honourable Court per MBABA, JCA held thus;
“Where there is evidence that strongly fixes an accused person to the scene of the crime, a plea of alibi is defeated, and may not even require wasting time to investigate it…”
See also; THE STATE v EKANEM (2016) LPELR – 41304 SC; AKEEM v STATE (2017) LPELR – 42465 (SC); CHUKWUNYERE v THE STATE (2017) LPELR – 43725 (SC). Therefore, his defence of alibi falls like a pack of cards. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned before the High Court of Delta State, sitting at Oleh (the trial Court) on a two-count information of attempted murder contrary to Section 320 of the Criminal Code and robbery punishable under Section 402 of the said Criminal Code. After the appellant pleaded not guilty to the counts, the prosecution in its bid to prove its case called four witnesses and tendered five exhibits. The appellant testified for himself and called two other witnesses. After taking addresses, the trial Court in a reserved judgment delivered by Oho, J, as he then was, found the appellant guilty as charged and accordingly sentenced him to a term of imprisonment of five years with hard labour or a fine of N150,000.00 in count one. In respect of count two, the trial Court sentenced him to a term of imprisonment of five years or a fine of N150,000.00. The prison terms were to run concurrently.
Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on the 15/1/2014 which incorporates two grounds of appeal.
The facts of the case leading to the appeal are as follows. It is the case of the prosecution that on 7/5/2012, at about 6 pm, one Felicia Ofomi, the PW1, was called by her husband on a GSM line. On that account, the PW1 went and stood along the road at Emevor, looking for a means of transportation by which to travel to meet her husband. The appellant riding on his motor-cycle came along and offered to transport the PW1 at an agreed fare of N200.00. On their way, the appellant diverted into what appeared to be a bush path. After protesting to no avail, the PW1 jumped off the motor-cycle and the appellant also jumped off the motor-cycle and pursued her. When he caught up with her, he kicked her off the ground and she fell down. He took her handset and purse containing the sum of N750.00. He assaulted her, pressed her throat with his hands, tied her up and a struggle ensued between them. The PW1 managed to escape from him. Her husband was called by her sister-in-law to whom she went and he carried her to a hospital. She mentioned the appellant to her husband as her attacker. He (her husband) called the youth chairman of Emevor to give the information. The said youth chairman brought the appellant to the hospital where the PW1 further identified the appellant as her assailant.
The appellant denied involvement in the incident and set up the defence of alibi in his statement to the police. He, as earlier stated, testified in his defence and called two other witnesses in support of his defence of alibi.
In the appellant’s brief of argument settled by P.A. Ozo, Esq., two issues have been distilled from the two grounds of appeal for the determination of the appeal, namely:
1. Whether by the evidence led by the prosecution the Court below was right to have convicted the appellant on the alleged crimes of attempted murder and robbery.
2. Whether the Court below was right when it refused to uphold the appellant’s plea of alibi and proceeded to convict him on the alleged offences of attempted murder and robbery.
The issues formulated in the respondent’s brief of argument settled by E. E. Erebe, Esq, Assistant Director, Ministry of Justice, Delta State, for the determination of the appeal are virtually the same with the issues identified by the appellant. Without the need to reproduce them, I shall be guided by appellant’s issues in the determination of the appeal. In determining the appeal, I shall consider the two issues together since both boil down to proof of the offences by the prosecution.
In arguing his issue 1, appellant’s counsel summarized the evidence of the prosecution witnesses and posited that the respondent failed to establish that the appellant was the perpetrator of the alleged crimes for which he was arraigned. He submitted that the prosecution was obliged to establish the identity of the appellant as the person who committed the offences in order to establish his guilt. He referred to several cases including Ikemson v. State (1989) LPELR-1473 (SC). He noted that the appellant was not caught at the scene of the crime. He described as bizarre and speculative the manner the appellant was apprehended and brought before the PW1 for identification including the mere reference to him as “Papa Jesuhovie”. He referred to the investigation report of the Sgt. Agwuocha Moses, Exhibit D, an aspect of which according to him established the alibi of the appellant. Counsel noted that though the plea of alibi related to the Otor-IyedeTown, the PW4 mentioned Otu-Jeremi and stated that she did not know the persons mentioned in the defence of alibi.
Counsel contended that the trial Court refrained from resolving the complex issue of the identity of the appellant as the perpetrator of the crime. He however added that the trial Court ultimately held that the appellant committed the crime. He set out the reasons for the trial Court’s conclusion and submitted that the reasons were speculative. He noted that the distance between the addresses of the appellant and the PW1 as well as the population of the town were not ascertained though they lived in the same town. Again, the number of young persons who bear the name Jesuhovie and the number of parents who are called “Papa Jesuhovie” were also not ascertained.
In regard to issue 2, appellant’s counsel submitted that the appellant promptly raised the defence of alibi with the necessary particulars. He referred to Exhibit D and the evidence of DW1 and DW2, and contended that the Police had satisfied the obligation of the law to investigate the alibi. He posited that no further investigation activity existed to debunk that referred to in the said exhibit and that the appellant was not required to adduce evidence to prove alibi.
Respondent’s counsel devoted five pages of his brief of argument to discussing the elements of the offences for which the appellant was charged and convicted and submitted that they had been established by the prosecution. Apart from the issue of the identity of the assailant and the issue of alibi, it is my view that his discourse was unnecessary as the issue in this appeal does not touch on those elements of the offences; rather the issue in this appeal orbits around the identity of the person who committed the crimes. The parties are ad idem as to the commission of the crimes. The point that they part company is on the finding of the trial Court that the appellant was the person who committed the crimes. I shall therefore not weary myself in following respondent’s counsel in the path of dissipation of energy in discussing those elements of the crimes which are not in issue in this appeal. This is because a Court of appeal has no business considering and determining issues that are not properly brought before it for determination.An appeal though is in the nature of a re-hearing but the re-hearing is in respect of the issues raised in respect of the case. See Access Bank Plc v. Onwuliri (2021) 6 NWLR (Pt. 1773) 391, 413.
Counsel submitted that though it is the duty of the prosecution to check the statement of alibi, there was no inflexible way of doing so. He added that if the prosecution adduces sufficient evidence of a crime, the alibi is logically and physically demolished. He contended that a suspect must give particulars of the place he was and the time he was there as well as the name of another person who can testify that he was there at the material time. He stated that the offences were committed between 6pm and 7pm and that the appellant stated that he, at about 6pm, went to look for the DW1. He stated that contrary to the evidence of the appellant, the DW1 testified that she saw the appellant after 7pm. Counsel submitted that where the trial Court does not believe the testimony of the accused person on the issue of alibi, that is the end of the matter. He placed reliance on Victor v. State (2013) 12 NWLR (Pt. 1369) 465 in support of his submission and posited that thecrucial missing link in the chain of evidence was where the appellant was between 6pm and 7pm. He argued that there was positive evidence from the PW1 that placed the appellant at the scene of the crime which he said dislodged the alibi raised by him.
In his reply, appellant’s counsel submitted that the contention that the appellant was placed at the scene of the crime was not borne out by the record.
The burden is on the prosecution to establish the guilt of an accused person beyond reasonable doubt.
Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of doubt. What is required is a degree of compulsion that is consistent with a high degree of probability. In other words, if the evidence against the accused person is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, ”of course it is possible but not in the least probable,“ the case would have been proved beyond reasonable doubt.
Proof beyond reasonable doubt is not attained by the number of witnesses called but depends more on the quality of the evidence relied upon by the prosecution. See Miller v. Minister of Pensions (1947) 2 ER 372 and Afuape v. State (2020) 17 NWLR (Pt. 1754) 381.
Where there is reasonable doubt about the guilt of the accused person, the Court must discharge him.
The guilt of an accused person may be established by:
1. His confessional statement
2. Circumstantial evidence
3. Evidence of eye-witness.
See Mbang v. State (2010) 7 NWLR (Pt. 1194) 439 and Olowoyo v. State (2012) 17 NWLR (Pt. 1329) 346.
The case of the prosecution against the appellant was founded in the main on the eye-witness evidence of the PW1 who was the victim of the crimes. The PW1 identified the appellant as the person who attacked her. Identification evidence is evidence tending to show that the person charged is the same person who was seen committing the offence. Whenever a Court is faced with identification evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. There ought not to be a doubtful identification of a culprit. See Ebenezer v. State (2020) 8 NWLR (Pt. 1727) 573. In order to ensure that the wrong person is not convicted for an offence on the basis of an identification evidence, the Courts have developed certain safeguards as postulated by Lord Widgery, C. J, in R V Turnbull (1976 ) 3 W.L.R. 445, 447 as follows:
“First, whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification…
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matter go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”
The above was quoted with approval by the Supreme Court in Abudu v. State (1985) 1 SC 222, 242-243 and has been followed in a number of decisions of the Supreme Court and this Court including Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Eyisi v. State (2000) 15 NWLR (Pt. 691) 555 and Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633.
In Ndidi v. State supra. 651, it was held that to ascribe any value to the evidence of an eye-witness in respect of identification of a criminal, the Court is to consider the following issues:
1. The circumstances in which the eye-witness saw the suspect or defendant.
2. The length of time the witness saw the suspect or defendant.
3. The lighting conditions.
4. The opportunity of close observation
5. The previous contact between the parties.
It is clear from the evidence of the PW1 that she knew the appellant before the day of the crimes. The appellant also knew her before the day of the incident. His attempt to deny knowing the PW1 was given a lie to by his extra-judicial statement, Exhibit E, where he stated that he knew the PW1 as a native of the place of his residence, Emovor. She testified that he is a musician and that they call him “Papa Jesuhovie.” Appellant indeed stated in Exhibit E that he is a popular musician based in Emovor. Her evidence was to the effect that the incident occurred between 6pm and 7pm. It was never suggested in cross-examination that darkness had set over the land to impair her vision. The PW1 had time to negotiate and agree with the appellant on a fare of N200.00 for the journey. She promptly mentioned the appellant to her husband as her assailant and he was promptly arrested by the youth leader. Again, the PW1 immediately identified him as her assailant the moment he was taken to the hospital that she was receiving treatment. The appellant confirmed this in Exhibit E where he stated that, “…when Felicia saw me she identified me to them as the person who carried her on motor-cycle…”
In cross-examination, the PW1 insisted that there are not many Jesuhovies in Emovor and that “…this is the only one I know.” The appellant in his cross-examination admitted that he has a daughter called Jesuhovie.
The identification evidence of the PW1 remained unshaken in cross-examination and at the end of the case of the prosecution. This nevertheless is not the end of the matter as the evidence of the appellant must still be considered, for the Court must still determine if the quality of the identification evidence remained good at the close of the case of appellant. In this regard, it must be re-stated that the appellant set up a defence of alibi in his statement to the Police. He testified on this defence and called two witnesses in this regard. Alibi simply means elsewhere. When accused person sets up the defence of alibi, he is simply saying that he was not at or near the scene of the crime at the relevant time but somewhere else, and so he could not have committed the crime as it is physically impossible for a human being to be at two different locations at the same time. The burden on an accused person in setting up a defence of alibi is merely one of introducing evidence. See Yanor v. State (1965) NMLR 341 and Bozin v. State (1985) 7 SC 450.
Once an alibi is properly raised by an accused person in his statement to the police, it is the duty of the prosecution to investigate and rebut it. It is however the duty of an accused person to give the details of his alibi to enable the prosecution investigate the same. He is to let the Police know at the earliest opportunity where and with whom he was at the material time. See Akpan v. State (1986) 3 NWLR (Pt. 27) 225, Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112.
The defence of the appellant was that on the date of the incident, he went to Otor-Iyide at about 18.00 hours, that is, 6 pm to look for one Elizabeth to find out whether she had cassava grinding machine which he intended to buy from her; that he left there at about 21.00 hours, that is, 9pm after meeting the man who was repairing the equipment.
It is clear that the PW4 did not investigate the defence of alibi set up by the appellant. He stated that he was at Otu-Jeremi and that the appellant did not talk about Otor-Iyede as the place where he said he was at the relevant time. He also testified that he did not know the DW1 in connection with the case. It was the first investigating police officer (Sgt. Agwuocha Moses) that investigated the alibi and his investigation report was tendered in evidence as Exhibit E. In the report, he stated that, “I visited Otor- Iyide…where one Elizabeth Okpako and Ezekiel a mechanic made statements confirming that he actually came there on the 7th of May about 1900 hours but left almost immediately after discussion.” The DW1 testified that she saw the appellant on the day of the incident after 7 pm, after closing from her church meeting. She added that the appellant would not have seen her before 7.10pm and that between the hours of 6:00pm and 7:10pm, she did not set her eyes on the appellant and could not say anything about his whereabouts. The DW2 testified that the appellant was at his place some few minutes to 8:00pm.
It must be restated that what the law requires is evidence to be introduced as to the whereabouts of the accused person at the material time. The phrase “material “simply means, “Important and needing to be considered”…Oxford Advanced Learner’s Dictionary 7th edition page 908. As rightly observed by the learned trial judge, the issue of time is always an important factor in considering the defence of alibi. The evidence of the PW1 shows that the incident occurred between 6 pm and 7 pm. None of the witnesses saw appellant during this material period of time and he did not state in his statement to the police who saw him at that material time either at Otor-Iyede or on his way to that place. On the contrary, the PW1’s evidence fixed him to the crime and the scene of the crime at the material time. In the case of Njovens v. State (1973) 1 ALL NLR (Pt. 1) 441, 478 Coker, JSC, opined that:
“If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”
See also Sunday v. State (2010) 18 NWLR (Pt. 1224) 223 and Atiku v. State (2010) 9 NWLR (Pt. 1199) 241.
I should mention that in a case where an accused person sets up a defence of alibi and yet is identified by an eye-witness, there is a straight issue of credibility. Where the evidence of the prosecution is believed, the alibi is logically demolished. The trial Court believed the evidence of the prosecution as against the evidence of the appellant.
Evaluation of evidence and ascription of probative value to it are primarily the functions of the trial Court. So long as there is evidence on record from which the trial Court came to or could have come to the conclusion that it did, an appellate Court would not interfere with the conclusion of the trial Court. See Ikem v. State (1985) 4 SC (Pt. 2) 30 and State v. Oray (2020) 7 NWLR (Pt. 1722) 130. There is sufficient evidence on record to justify the conclusion of the trial Court and I therefore see no reason to interfere with it.
The contention of appellant’s counsel as to ascertaining the distance between the addresses of the appellant and the PW1, the population of Emevor, the number of children called Jesuhovie and the parents called “Papa Jesuhovie” is nothing but a flight in fanciful speculation which has nothing to do with the requirement of proof beyond reasonable doubt. The prosecution was not required by the law to engage in a census and mapping of Emevor before it could prove its case. If the defence thought that this was important to its case, it had the opportunity of engaging in the exercise. I have already stated the position of the law that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. It does not also mean proof beyond all shadow of doubt or proof to the hilt. Once the prosecution has established the guilt of an accused person by compelling evidence, as in this instance, the burden of proof beyond reasonable doubt is said to have been discharged and the Court can safely convict the accused person except he can be located within any of the defences or exceptions provided by the law. This is not the case in the present matter.
On the whole, I resolve the two issues against the appellant and hold that the appeal has no merit. It fails and I accordingly dismiss the same. I affirm the judgment of the trial Court.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of my learned brother, JOSEPH EYO EKANEM, JCA and I agree with the well reasoned analysis and conclusion therein, except to emphasize that a defence of alibi is when an accused pleas that he was elsewhere at the material time the offence was committed therefore he could not have been at the scene of the crime; see SAMUEL ATTAH v THE STATE (2010) LPELR – 597 (SC).
In this instant case, the evidence of the alibi did not give credence to the plea of the Appellant as he was not with either of them within the particular time the crime was being carried out (6pm – 7pm). The evidence of PW1 consequently remains uncontradicted. See; ONYEKABA v STATE (2019) LPELR – 46836 (CA) where this honourable Court per MBABA, JCA held thus;
“Where there is evidence that strongly fixes an accused person to the scene of the crime, a plea of alibi is defeated, and may not even require wasting time to investigate it…”
See also; THE STATE v EKANEM (2016) LPELR – 41304 SC; AKEEM v STATE (2017) LPELR – 42465 (SC); CHUKWUNYERE v THE STATE (2017) LPELR – 43725 (SC). Therefore, his defence of alibi falls like a pack of cards.
For this and elaborate reasons in the leading judgment, I too dismiss the appeal and also affirm the judgment of the lower Court.
MUSLIM SULE HASSAN, J.C.A.: I read the draft of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA and I am in agreement with the reasoning and conclusions reached in disallowing the Appeal as lacking in merit. I have nothing to add to a brilliantly analysed and well resolved Appeal as I abide by the consequential orders made therein.
Appearances:
P. A. EZO, ESQ., with him, P. T. ENABULELE, ESQ. For Appellant(s)
C. O. AGBAGWU, ESQ. (Deputy Director, Ministry of Justice, Delta State), with him, S. DUMUDJE (SSC), MRS O. EYESIO (SSC) and I. E. OKOLI, ESQ. (Pupil SC) For Respondent(s)
