ADEBISI ADESAKIN V. THE STATE (2012)

ADEBISI ADESAKIN V. THE STATE

(2012)LCN/5224(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of March, 2012

CA/IL/C.52/2011

RATIO

CONFESSIONAL STATEMENTS: ON THE CONCEPT OF INCONSISTENCY RULE

The import of the inconsistency rule, which traces its paternity to the English case of R.V. Golder (1960) 1 WLR 1169, is that where the extra-judicial statement of a witness is irreconcilable with his viva voce evidence in court both are rendered valueless. In the usual legal language the testimony at the trial is to be treated as unreliable while the statement is not to be regarded as evidence on which the court can act. In the cases of Asanya V. State (1991) 3 NWLR (Pt. 180) 422; Oladejo V. State (1987) 3 NWLR (Pt. 61) 479, the rule was extended to confessional statements made by accused persons who testified as witnesses. Interestingly, in the case of Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383, the majority of the full Supreme Court, led by Bello, CJN, with Karibi-whyte, JSC, dissenting in part, overruled the decisions in the cases of Oladejo v. State (supra) and Asanya v. State (supra) on the extension of the tentacles of the rule to extra judicial confessional statements of accused witnesses. The court took into account the fact that the rule formed an escape route to guilty accused persons even as it perpetrated injustice in criminal trials. Thus, in the case of Akpan v. State (2001) 15 NWLR (Pt. 737) 745 at 762, Karibi – Whyte, JSC, agreed that: The question whether the principle in these cases enunciated above applied to the evidence of accused person including their confessional statements was decided in the case of Egboghonome V. The State (1993) 7 NWLR (Pt. 306) 383, where it was held that the inconsistency did not apply to retracted extra-judicial confession of an accused person. The implication is that it applied to extrajudicial statements which are not confessions. In addition, the consequence of the Egbonomone (sic) case is that where an accused makes extra-judicial statement admitting the commission of the offence with which he is charged, the statements will still be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the trial, by giving evidence contradictory to that evidence. PER. OBANDE OGBUINYA, J.C.A

CRIMINALN LAW: ON THE MEANING AND ELEMENTS OF CONSPIRACY

Conspiracy is a confederacy or agreement between at least two persons with the object of committing unlawful or criminal act or doing lawful act by illegimate means. Being an agreement, express or implied, it takes at least two person to conspire, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to the usual clandestine nature of the offence, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from proved acts of the conspirators in evidence. Such circumstantial evidence, which is often times, as good as and sometimes better than direct evidence, must be cogent, impregnable, consistent, unequivocal and irresistibly point to the guilt of the accused conspirators. In other words, the offence could be committed by the action, in action, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the conspirators with a joint or communal understanding and effort at committing a crime. These meanings and ingredients of the offence of criminal conspiracy have received the blessing of the appellate courts in loads of judicial authorities; see Ojo a FRN (supra); Amaru V. R. (supra) Mohammed V. State (supra); Clark V. State (Supra); Oduneye V. The State (supra); Okeke V. State (supra); Obiakor V. State (2002) 10 NWLR (pt. 776) 612; Kaza V. State (2008) 7 NWLR (Pt.1085) 125; Abdullahi V. State (2008) 17 NWLR (Pt.1115) 203; Omotola V. State (2009) 7 NWLR (Pt. 1139) 148; Sule V. State (2009) 17 NWLR (Pt. 1169) 33; Posu V. State (2011) 2 NWLR (Pt. 1234) 393; Abacha V. State (supra); Njoveins V. State (supra); Oyakhire V. State (supra). PER. OBANDE OGBUINYA, J.C.A

CRIMINAL LAW: INGREDIENTS OF KIDNAPPING

The next offence to be considered is kidnapping. In this wise, it is germane to comprehend the offence of kidnapping. To this end, the provision of section 271 of the Penal Code comes in handy. It provides:
271. Whoever takes or entices any person, under fourteen years of age if a male or under sixteen years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such person without the consent of such guardian or conveys any such person beyond the limits of the state without the consent of someone legally authorised to consent to such removal, is said to kidnap such person. It can be gleaned, from this provision that the ingredients of the offence of kidnapping, relevant to this appeal, are:
(a) The victim must be taken or enticed out of the keeping of his or her lawful guardian.
(b) The victim must be under fourteen years of age he is a male or below sixteen years if she is a female or a person of unsound mind. PER. OBANDE OGBUINYA, J.C.A

CONFESSION: THE POSITION OF THE LAW ON ORAL AND WRITTEN CONFESSION

The oral confession the appellant made to PW2 is cognizable in law, see Jua v. State (supra); Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165. Both the oral and written confessions are the most potent evidence in criminal trials. In the case of Akpa v. State (2008) 14 NWLR (Pt. 1106) 72 at 95, Tobi, JSC, succinctly stated: …Confession in criminal procedure, like admission in civil procedure, is the strongest, evidence of guilt on the part of an accused. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence that? He knows or knew what he did and he says or said it in court. Is there need for any further proof? I think not.” In my view, the oral and written confessions made by the appellant are cogent, compelling and consistent so much so that they qualify as confessions as envisaged by section 28 of the Evidence Act, 2011. It can be discerned from the confession that the appellant gave a vivid, but sorrowful, account of how he gruesomely snuffed life out of the deceased for his undying quest for affluence. Exultantly, the law gives the courts the latitude to convict an accused, such as the appellant, solely on his confession to a crime, see Arogundare v. State (supra); Olabode v. State (supra) 11 NWLR (Pt. 1152) 254; Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Jua v. State (supra); Omogu v. FRN (2008) 9 NWLR (Pt. 1085) 38; Njovens v. State (supra); Shalla v. State (2007) 18 NWLR (pt. 1066) 240. PER. OBANDE OGBUINYA, J.C.A

CRIMINAL LIABILITY: ON THE DEFENCE OF ALIBI

In the domain of the law, that is defence of alibi the word, alibi traces its lexical roots to Latin Language where it means ‘elsewhere’. The defence, which now permeates our criminal justice system, denotes the physical impossibility of a person or an accused to be somewhere else and at the same time at the scene of a crime. It is a complete defence, which if proved in favour of an accused person, absolves him of any criminal liability. The law insists that it must be raised by an accused person and disproved by the prosecution. PER. OBANDE OGBUINYA, J.C.A

REQUIREMENTS TO BE MET FOR THE DEFENCE OF ALIBI

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

IGWE GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ADEBISI ADESAKIN – Appellant(s)

AND

THE STATE – Respondent(s)

OBANDE OGBUINYA, J.C.A (Delivering the Leading Judgment): This appeal arose from the judgment of the Kwara State High Court, presided over by Hon. Justice Halima Saleeman, and delivered on 07/07/2009. In that judgment, the lower court convicted the appellant, along with another accused person, for the four offences he was charged with.
As can be garnered from the record of proceedings in the lower court, the appellant, Adebisi Adesakin, was arraigned, together with two other accused persons, Kamaru Yusuf and Salihu Oyewale, on a four-count information of criminal conspiracy to kidnap, criminal conspiracy to commit culpable homicide, kidnapping and culpable homicide punishable with death against one Omobolanle Moses punishable und.er sections 97, 274 and 221 of the Penal Code.
From the evidence on record, the facts of that case, leading to this appeal, are not complicated. The deceased, Omobolanle Moses, was an 8-year old little girl living with Rachael Oyelamin, the mother of Alimi Olanrewaju (PW4), in Irra town in Oyun Local Government Area of Kwara State. Sometime in August, 2007, precisely on 27/08/2007, she, Omobolanle Moses, got missing. A search party was constituted which went in search of her. The bizarre development was reported to the police at Ilemona police Station who asked the searchers to continue for twenty-four hours. When they failed to see her, they went back to the police who swung into action.
The police at Ilemona Police Station went into investigation which revealed that the appellant and the other appellant, Kamaru Yusuf, both living in Zacheus Road, Ore, Ondo State kidnapped and killed the deceased by strangulation. In the course of investigation, they were apprehended at Ore in Ondo State. Based on their information to the police that they took the deceased’s head to one Salihu Oyewale, the third accused person in the information, for money making ritual, they (the police) arrested the latter too.
After their arrest, the case was transferred to the State Criminal Investigation Department (SCID), homicide section, police headquarters, Ilorin on 02/09/2007. Thereafter, the police at the State CID carried out their investigations. Subsequently, the Attorney-General of Kwara State sought and obtained the leave of the lower court pursuant to sections 7 and 185 (b) of the Criminal Procedure Code, to prefer a charge of conspiracy, kidnapping and culpable homicide punishable with death against the appellant and the other two accused persons on 10/04/2008. Sequel to that leave, they took their plea to those offence on 16/01/2008. They pleaded not guilty to them.
Following that not guilty plea, the case went into a full-scale trial. In proof of the information, the prosecution, which, had since dissolved into the respondent, fielded 8 witnesses, PW1-PW8, and tendered about 11 exhibits, exhibits P1 – P11. The accused persons each testified as a witness and called another witness, DW4, to disprove the charge. In the course of the proceedings, specifically during the examination-in-chief of PW3 and PW8, there were objections to the admissibility of the extra-judicial confessional statements of the appellant and Kamaru Yusuf on account of involuntariness. These objections led to the lower court conducting trial-within- trial proceedings. It, eventually, in considered rulings overruled the objections and admitted those statements as exhibits P8 and P11 respectively.
At the close of evidence from the appellant, the counsel addressed the lower court. On 07/07/2007, the lower court gave its judgment. It convicted the appellant and Kamaru Yusuf for all the offences in the four-count information, but discharged Salihu Oyewale of the offence of Criminal conspiracy for want of evidence. The lower court, on pages 125-126 of the record, sentenced the appellant, to 7 years imprisonment for conspiracy to kidnap, 7years imprisonment for the offence of kidnapping, 14 years imprisonment for the offence of conspiracy to commit culpable homicide and death sentence for the offence of culpable homicide punishable with death.
The appellant was aggrieved by that decision. Hence, he filed a 5-ground notice of appeal contained on pages 131-135 of the record, on 27/07/2011, after obtaining an order of this court to file same outside the statutory period allowed by law. He prayed the court for ”An order allowing the Appeal set aside the conviction and sentence imposed on the appellant and discharge and acquit him of the offence of conspiracy, to kidnap and kidnapping. Conspiracy to commit homicide and homicide preferred against him” Consequently, parties filed and exchanged briefs of argument as enjoined by law.
The appeal was heard on 25/01/2012 when parties adopted their exchanged briefs of argument. Learned counsel for the appellant, Dr. Akin Onigbinde, adopted the appellant’s brief of argument, filed on 06/10/2011, as representing his arguments in support of the appeal which he urged the court to allow by discharging and acquitting the appellant. In the same vein, learned counsel for the respondent, M.A. Oniye, ACSC; Ministry of Justice, Ilorin, adopted the composite respondent’s brief, filed on 05/12/2011, as forming his submissions against the appeal which he prayed the court to dismiss.
In the appellant’s brief of argument, he formulated two issues for determination viz:
(1) WHETHER having regard to the totality of Evidence placed before the court, the conviction of the Appellant for the offences charged, by the Learned justified.
(2) WHETHER failure of the Learned Trial Judge to properly evaluate the defence of Alibi raised by the Appellant has not occasioned a grave miscarriage of Justice.
In the respondent’s brief of argument, two, out of the four, issues for determining distilled by the respondent are relevant to this appeal. They are:
ii. WHETHER the trial court was right to have convicted the 2nd appellant for the offences of conspiracy to commit culpable homicide punishable with death. (Distilled from grounds one, three and four of the 2nd appellant’s Notice of Appeal.
iii. WHETHER the trial court was right not to have accepted the defence of Alibi (Premised on ground five of the 2nd appellant’s Notice of Appeal).
I have matched the appellant’s issues for determination of the appeal with those of the respondent. It seems to me that the respondent’s issue ii is in the mould of the appellant’s issue 1. Also, the respondent’s issue ii is, in substance and in words, the same as the appellant’s issue 2. In view of the striking similarity, I will deal with the appeal on the premise of the appellant’s two issues for determination.
Arguments on the issues:
On issue one, learned counsel for the appellant submitted that having regards to the evidence adduced before the lower court, the conviction of the appellant was unreasonable and unjustified. He restated the law that by virtue of the provision of section 138 (1) of the Evidence Act, the burden of proof in a criminal case was always on the prosecution, the respondent, and the proof must be beyond reasonable doubt. He cited the case of Jua V. State (2010) ALL FWLR (Pt. 521) 7427 at 7443 in support of that position of the law.
Learned counsel informed the court that the lower court heavily relied on the alleged confessional statement of the appellant in convicting him and referred to its finding on pages 108 – 109 of the record wherein some parts of the statement were quoted. He insisted that nothing in the purported alleged confessional statement quoted implicated the appellant nor linked him with the commission of the offence instead the statement confirmed his innocence of the offences. He added that the statement was retracted during the trial and that the alleged evidence of the PW3, purportedly relied on by the lower court, did not in any way link the appellant with the commission of the offences.
Learned counsel called the court’s attention to the evidence of Kamaru Yusuf, the other appellant and first accused, on page 75 of the record, and the lower court’s evaluation of same on page 104 of the record, and posited that the uncontroverted evidence exonerated the appellant.
He lamented that inspite of that evidence, the lower court went ahead to convict the appellant. He maintained that both in the oral and written statement, Kamaru Yusuf, DW3, owned up to the commission of the offence without the participation of the appellant. He took the view that Kamaru Yusuf, DW3, give a clear and graphic picture of how the deceased was killed without any input from the appellant and the lower court ought to have treated his evidence as that of a witness of truth and exonerated the appellants.
He further submitted, on conspiracy to kidnap, that to constitute the offence of conspiracy there must be a criminal purpose common to all conspirators, citing the cases of Clark V. State (1986) 4 NWLR (pt. 35) 387 at 395; Oduneye V. The State (2001) 1 SC (pt. 1) (sic) at 6-7, He added that: the prosecution must prove that the criminal minds really met to hatch the crime, the conspirators must have agreed to do the act or make the omission complained of, the conspiracy must be that described in the charge and that the mere fact that accused person was present at the scene of a crime or aware of it, but did nothing to prevent it did not make him criminally liable, citing the cases of Okeke V. State (1992) 2 NWLR (Pt. 590) 246 at 266; Onuoha v. State (187) (sic) 4 NWLR (pt. 65) 331 at 346; Azumah V. R. 91950 13 WACA 97.
Learned counsel, against the background of those settled principles of law, invited the court to consider the evidence before the lower court vis-‘E0-vis the reason’s it stated for convicting the appellant for the offences of conspiracy to commit murder and murder. He noted that apart from the alleged confessional statement of the appellant, none of the respondent’s witnesses gave direct evidence linking him with the commission of the offence. He reiterated the point that to ground conviction for conspiracy, there must be consent of two or more persons so that in the absence of community of purpose between the appellant and the other accused person, the lower court was wrong to have convicted him of the offence of conspiracy. He persisted that in criminal trials, the acts of an accused person must be proved within the confines of the particulars of the offence charged. He relied on the cases of Nwosu V. Board of Customs & Excise (1988) 5 NWLR (Pt, 93) 225; Ubawatu V. Cop (2000) FWLR (pt. 1) 138; Ojo V. FRN (supra).
It was learned counsel’s further submission that from the totality for the evidence before the lower court, conviction of the appellant was not in tandem with substantial justice the – essence of which was to search out and discover the truth in any matter and thereby give true meaning to the life of the society in line with the laws promulgated to regulate its affairs in all ramifications. He took the view that the conviction of the appellant for the offence of conspiracy to kidnap was unreasonable and unjustified. He urged the court to discharge him because the respondent had the unshifting burden to prove all the ingredients of the offence charged beyond reasonable doubt to establish the guilt and conviction of the appellants.
On the alleged offence of conspiracy to commit culpable homicide punishable with death, learned counsel drew the court’s attention to the finding of the lower court, on page 115 of the record, and posited that it was wrong to have relied heavily, on the evidence of PW5 and PW6 in convicting the appellant since neither of them said he met him at the scene of crime committing the offence. He further posited that their evidence at last raised suspicion which had no basis in law and could not be basis for criminal responsibility and conviction. He added that finding of fact must be founded on credible evidence and that it was unsafe to base a conviction on a speculative finding as was done by the lower court. He stated that in criminal trials, particularly in capital offences as in that case, he court must arrive at its decision through a process of reasoning which was analytical and commanded confidence. He relied on the case Nwosu V. The State (1986) 4 NWLR (Pt. 35) 348.
He repeated that in the appellant’s evidence, there was nothing to prove that the two accused persons conspired nor the appellant conspired in any way to kidnap or kill the deceased except in his alleged confessional statement made to the police which the recorder was not presented for cross-examination by him. He concluded that the respondent was unable to prove the offence of conspiracy against the appellant. He urged the court to resolve the issue in his favour.
For the respondent, on issue one, its learned counsel recapitulated the four-count charge levelled against the appellant and adopted his submission on the burden and standard of proof in criminal proceedings and referred to the provision of section 138 of the Evidence Act and Bakare v. State (supra). He insisted that the respondent proved the offences as statutory required. He explained that the respondent proved the offences as statutorily required. He explained that the appellant and Kamaru Yusuf were asked by Salihu Oyewale, the third accused person, to look for a human head for use for money ritual and that they set for their victim, the deceased, hence, they agreed to go to Irra town, on 27/8/2007, where they lured the deceased with biscuit, kidnapped her to a nearby bush strangled her to death and severed her body with a cutlass. He alluded to the appellant’s statement, exhibit P8, wherein he admitted being in Irra town on that fateful day and that he later joined Kamaru Yusuf in the farm to execute their plan of killing Omobolanle Moses.
Learned counsel restated the law that when two persons form a common intention to prosecute an unlawful purpose and an offence was committed of such nature that it was the probable consequence of the prosecuting of such purpose, each of them would be deemed to have committed the offence. He added that, conspiracy was usually not capable of direct proof, but by inference from the circumstances and evidence of the conspirators. He relied on the cases of Oyakhire V. The State (2006) ALL FWLR (Pt. 305) 703 at 708; Abacha V. The State (2002) 11 NSCQR; Njovens V. State (1973) NNLR 76 at 95; Haruna V. State (1972) All NLR 738. He maintained that the evidence of the conspirators were the appellant’s statement, exhibit P8, and Kamaru Yusuf’s, exhibit P 11, and that irresistible inference of conspiracy could be drawn from the fact that the appellant was fixed at Irra town at the material time and participated in the execution of the common agreement he had with the other appellant. He noted that exhibit P8 showed how the appellant joined Kamaru Yusuf in the farm to hatch their plan.
He stated that exhibit P 11, Kamaru Yusuf’s statement, though not used by the lower court, explained the appellant’s participation in the commission of the crime despite his viva voce evidence that exonerated him, the appellant. He then submitted that the lower court could not have relied on the inconsistent evidence of Kamaru Yusuf to exonerate the appellant since it should be circumspect in convicting an accused on the evidence of a co-accused. In support of that submission, he cited the cases of Nwankwoalo V. State (2006) ALL FWLR (pt. 339) 801; Oyakhire v. State (2007) ALL FWLR (pt. 344) 1 at, 44; Ozaki v. State (1990) 1 NWLR (pt. 124) 92. He prayed the court to hold that the offences of conspiracy were proved against the appellant.
It was the further submission of learned counsel that the main offence, kidnapping, from the above undisputed evidence, was proved, particularly as it was settled principle of law that a crime could be established by either direct or circumstantial evidence which point irresistibly to an accused person, citing the case of Adebayo V. State (2007) ALL FWLR (Pt. 305) 4937; Madu V. State (2007) All FWLR (Pt. 371) 637. He referred the court to the evidence of PWs 2, 3, 4, 6 and 8; noting that apart from the appellant’s confessional statement, there were other circumstantial evidence that were cogent, credible and unequivocal upon which his conviction could be affirmed for the offence of kidnapping contrary to section 274 of the Penal Code.
He contended that the respondent proved the second main offence, culpable homicide punishable with death, in that it was shown: that Omobolanle Moses died, that her death was caused by the appellant and Kamaru Yusuf through their acts of kidnapping and strangulation, and that they not only intended killing her for money ritual, but knew or had reason to know that death would be the probable result of their acts. He took the stand that a community consideration of exhibits P1, the severed head of the decease, P2, P3, P4, P5 and P6 and the evidence of PW2, 3, 4, 5 and 6 established beyond any per adventure the above ingredients of the offence of culpable homicide punishable with death, citing the case of Akpan V. State (2008) 7 MJSC 77 in support. He added that the free confessional statement of the appellant, upon which any court of law could solely and safely base a conviction, notwithstanding that he retracted it at the trial, showed that those ingredients were proved. He placed reliance on the case of Gabriel v. State (1994) 2 SCNJ 57; State v. Duru (2004) 9 FWLR 134. He persisted that the unchallenged evidence of PW5 and PW6 corroborated the appellant’s confessional statement (exhibit P8) wherein he admitted being at Irra town and participated in the crime. He concluded, based on the above arguments, that there were abundant direct, circumstantial and confessional evidence beyond reasonable doubt against the appellants for his conviction for the offences he was charged with in the lower court. He urged the court to resolve the issue against the appellant.
Regarding issue two, learned counsel for the appellant argued that inspite of the clear revelation from the appellant that he was not at the scene of the crime at the time of the commission of the offence; the lower court went ahead and convicted him. He alluded to the appellant’s evidence, both in-chief and under the heat of cross-examination, on pages 74 and 75 of the record, showing that he was not at the scene of the crime and that those pieces evidence were never controverted or debunked by the respondent. He observed that his evidence on his whereabouts on that day of the commission of the alleged crime were never investigated, considered and evaluated by the lower court. He added that defence of an accused person; however foolish or stupid it might be must be considered, citing the case of Nse Udo Nitta V. The State (1993) 3 SCNJ 28 at 35. He reasoned that, assuming without conceding, that the defence of alibi raised by the appellant was inconsistent with other evidence, it was immaterial for the consideration of such defence as the lower court was bound to consider it. He relied on the case of Rasaki v. Oladipupo v. The State (1993) 6 SCNJ 233 at 239 – 241. He urged the court to hold that the failure to consider the alibi occasioned a miscarriage of justice to the appellant. He added that the lower court had a duty to consider the totality of the evidence before it and not to indulge in speculation as to what might have happened as it did. He placed reliance on the case of Adelenwa V. The State (1992) 7 NSCC 591 at 594.
Learned counsel insisted that the appellant during his statement to the polices and trial stated that he was at Ore on the day of the commission of the offence. He referred to pages 13, 72 and 74 of the record for confirmation and noted that the lower court acknowledged those pieces of evidence in its findings. He restated the meaning of alibi as a defence based on physical impossibility of a defendant’s is guilt by placing him in a location other than the scene of crime at the relevant time and that the respondent had a duty to investigate it, citing the case of Wakala V. The State (1991) 8 NWLR (Pt. 277). He stated that for a plea of alibi to warrant being investigated, an accused must give detailed particulars of his whereabouts on the day of the offence, specify the place (s) where he was, the people in whose company he was and what transpired at the said time and place (s); furnish some comprehensive information which must be capable of investigation by the police and timeously bring the defence to the attention of the police preferably in his statement to afford them the ample time to investigate it. He cited the case of Isong Akpan v. The State (2001) 2 NWLR (pt. 189) (sic) 80 at 696.
He, then, argued that the appellant having given the defence in his statement, exhibit P8, on page 13 of the record, the respondent had a duty to investigate it and the failure to do so would lead to his acquittal. He placed reliance on the cases of Oyebola V. The State (2008) ALL FWLR (Pt. 402) 1175 at 1184; Yanor V. The State (1965) NMLR 337; Odu V. The State (2001) 2 FWLR (Pt. 37) 1078 / (2001) 10 NWLR (Pt. 722) 668. He reasoned, on the authority of Wakala v. The State (supra), that the duty on the respondent to investigate the defence of alibi had no exception. He urged the court to acquit the appellant.
In the alternative, learned counsel argued that the ingredients of the offence of culpable homicide punishable with death were: that a human being died, that the death was caused by the accused person, that his act was done with the intention of causing death and that he knew that death would be the probable consequence of his act, citing the case of Akpan v. The State (2007) All FWLR (pt. 351) 1560. He referred to the evidence of the appellant, on page 13 of the record, showing that he met the deceased already strangled to death and that he cannot be convicted for the culpable homicide of an already dead person. He recited the cases of Uwaekweghinya V. The State (2005) ALL FWLR (Pt. 259) (Pt. 297) (sic); George V. The State (1993) NWLR (sic) 47. He persisted that the respondent must prove that the death of the deceased was traceable directly to the appellant, citing the case of Musa v. The State (supra). He maintained that there were gaps in the respondent’s case which had created doubt in the guilt of the appellant which doubt ought to be resolved in his favour, relying on the case of Omopupa V. The State (2008) ALL FWLR (445) 1648 at 1684. In view of the above, he urged the court to resolve the issue in favour of the appellant. Finally, learned counsel, on the basis of his submissions, prayed the court to allow the appeal, set aside the decision of the lower court, discharge and acquit the appellant
Arguing per contra, learned counsel for the respondent stated that the appellant raised the defene of alibi for the first time at the trial which he did not raise in his extrajudicial statement, exhibit P8. He tagged the evidence as most incredible and a mere after thought in the face of the credible evidence of PWs 5 and 6 to the effect that he was in Irra with Kamaru Yusuf at the time of the commission of the offence. He reasoned that his evidence flew in the face of his own confessional statement, Kamaru Yusuf and Salihu Oyewole. He adopted the ingredients that would warrant investigation into the defence of alibi as enumerated by the learned counsel for the appellant and relied on the case of Balogun v. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 572 at 536; Isong Akpan V. The State meet up with (supra). He submitted that the appellant’s alibi did not those outlined ingredients having been raised in the court.
Learned counsel took the view that where there was evidence fixing the accused at the scene of the crime, like in the appellant’s case as provided by PW5, PW6, the third accused person his confessional statement and that of Kamaru Yusuf, the defence of alibi was completely destroyed. He placed reliance on the cases of Onuchukwu V. The State (1998) 4 SCNJ 36; Sowemimo V. The State (2004) 11 NWLR (Pt. 385) 515. He contended that the court could brush aside a defence of alibi where there was a stronger and more cogent evidence nullifying the alibi, relying on the case of Ukwunnenyi V. The State (198) 4 NWLR (Pt. 114) 131 at 155-156. He added that the defence of alibi allowed for exceptions as the police had no duty to investigate an alibi not raised before them timeously. He submitted that the lower court, oil pages 122-123 of the record, considered and debunked the appellant’s defence of alibi. He urged the court to resolve the issue against the appellant. In the light of all his submissions, learned counsel prayed the court dismiss the appeal.
RESOLUTION OF THE ISSUES
In considering the two issues, I will deal with them sequentially, one after the other. On this score, I will takeoff with resolving issue one. Before delving into the issue, let me clear one tangential point that will crop up in the course of looking at this issue.
Now, the salient pieces of evidence in exhibit P8, on this point, are diametrically opposed to those in the appellant’s evidence in the lower court. In my view, I see that conflict as decoy to come within the inconsistency rule in criminal proceedings. The import of the inconsistency rule, which traces its paternity to the English case of R.V. Golder (1960) 1 WLR 1169, is that where the extra-judicial statement of a witness is irreconcilable with his viva voce evidence in court both are rendered valueless. In the usual legal language the testimony at the trial is to be treated as unreliable while the statement is not to be regarded as evidence on which the court can act. In the cases of Asanya V. State (1991) 3 NWLR (Pt. 180) 422; Oladejo V. State (1987) 3 NWLR (Pt. 61) 479, the rule was extended to confessional statements made by accused persons who testified as witnesses.
Interestingly, in the case of Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383, the majority of the full Supreme Court, led by Bello, CJN, with Karibi-whyte, JSC, dissenting in part, overruled the decisions in the cases of Oladejo v. State (supra) and Asanya v. State (supra) on the extension of the tentacles of the rule to extra judicial confessional statements of accused witnesses. The court took into account the fact that the rule formed an escape route to guilty accused persons even as it perpetrated injustice in criminal trials. Thus, in the case of Akpan v. State (2001) 15 NWLR (Pt. 737) 745 at 762, Karibi – Whyte, JSC, agreed that:
The question whether the principle in these cases enunciated above applied to the evidence of accused person including their confessional statements was decided in the case of Egboghonome V. The State (1993) 7 NWLR (Pt. 306) 383, where it was held that the inconsistency did not apply to retracted extra-judicial confession of an accused person. The implication is that it applied to extrajudicial statements which are not confessions. In addition, the consequence of the Egbonomone (sic) case is that where an accused makes extra-judicial statement admitting the commission of the offence with which he is charged, the statements will still be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the trial, by giving evidence contradictory to that evidence.
On account of this current position of the Law, it is safe to use Exhibit P8.
The mainstay of issue one is that the lower court was wrong to have convicted the appellant of the offences charged based on the evidence before it. It is crucial to recall that the appellant was arraigned, together with two other accused persons, in the lower court for the offences of conspiracy to kidnap and commit culpable homicide punishable with death, kidnapping and culpable homicide punishable with death, see page 2 of the record.
For the sake of orderliness, I will start with the appellant’s culpability or otherwise for the double offence of conspiracy. Here, the provision of section 96 (1) of the Penal Code will be on hand in order to appreciate the purport of the crime. The section states.
96(1) When two or more persons agree to do or cause to be done-
(a) a illegal act; or
(b) a, act which is not illegal by illegal means, such an agreement is called a criminal conspiracy
Conspiracy is a confederacy or agreement between at least two persons with the object of committing unlawful or criminal act or doing lawful act by illegimate means. Being an agreement, express or implied, it takes at least two person to conspire, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to the usual clandestine nature of the offence, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from proved acts of the conspirators in evidence. Such circumstantial evidence, which is often times, as good as and sometimes better than direct evidence, must be cogent, impregnable, consistent, unequivocal and irresistibly point to the guilt of the accused conspirators. In other words, the offence could be committed by the action, in action, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the conspirators with a joint or communal understanding and effort at committing a crime. These meanings and ingredients of the offence of criminal conspiracy have received the blessing of the appellate courts in loads of judicial authorities; see Ojo a FRN (supra); Amaru V. R. (supra) Mohammed V. State (supra); Clark V. State (Supra); Oduneye V. The State (supra); Okeke V. State (supra); Obiakor V. State (2002) 10 NWLR (pt. 776) 612; Kaza V. State (2008) 7 NWLR (Pt.1085) 125; Abdullahi V. State (2008) 17 NWLR (Pt.1115) 203; Omotola V. State (2009) 7 NWLR (Pt. 1139) 148; Sule V. State (2009) 17 NWLR (Pt. 1169) 33; Posu V. State (2011) 2 NWLR (Pt. 1234) 393; Abacha V. State (supra); Njoveins V. State (supra); Oyakhire V. State (supra).
Given these elements of criminal conspiracy, the knotty question is: did the respondent establish the offences against the appellant? The answer is waiting to be harvested from the record of proceedings. In this regard, my first port of call is the extra-judicial confessional statement of the appellant which was admitted in evidence, through PW3, as exhibit P8. I have given a microscopic examination to the said exhibit P8, which is found on pages 12- 14 of the record, and I will extract the relevant part from it. At the dawn and twilight of exhibit P8, on pages 12 13, the appellant voiced:
… Sometimes ago, Kamaru approached, the man for medicine money after their discussion, Kamoru briefed me about his discussion with the man and he further explained that the man demanded for head of human being. Kamoru told me there is a girl within the family which he can use, we both travelled from ore to Ira for the purpose. On the 26th of August, 2007, we travelled to Ira, in the evening of that day, Kamoru took me to the compound where the girl reside. On the 27/08/2007 it was a market day, Kamoru tricked the girl from her journey mother’s house, Kamoru bought biscuit for the girl, he asked me to wait at home while he took the girl to the farm. I later went to the farm to join him and I discovered that the little girl had been strangulated to death… I am appealing to the police and government to please have mercy on me; it was the handiwork of the devil. The victim is one Mobola aged 6 years of age.
In addition to the above, PW4, Alimi Olarewaju, the substantive complainant, gave unchallenged evidence that the appellant and. his friend, Kamaru Yusuf, were in Irra when they were looking for the deceased, see pages 51-52 of the record. Again, PW5, Sharafa Abioye, the commercial motorcyclist, on pages 53 of the record, gave uncontradicted evidence of how he carried the appellant and Kamaru Yusuf on his “bicycle” from Irra to Ikosin and from Ikosin to Irra.
When these pieces of solemn testimonies are pooled together, a lot of conclusions stand out. In the first place, by the appellant’s own showing in exhibit P8, they, himself and his friend, Kamaru Yusuf, had in Ore, Ondo State hatched a plot on how to execute their nefarious act of kidnapping and killing their helpless prey, Omobolanle Moses. They went together to the herbalist, the third accused, Salihu Oyewale, DW 1; a man who they believed was capable of making herbs to become money-spinner, for them. They travelled from Ore to Irra together. These unchallenged testimonies were from the horse’s mouth, as it were, having been relayed by the appellant himself. In law, the best evidence of conspiracy is one from the conspirators.
Besides, they were both pillion passengers to PW5 on his bicycle or motorcycle which, to all intents and purposes, was not by coincidence. I dare say, these testimonies unveil or showcase both direct and inferential evidence of criminal conspiracy pointedly pointing to the appellant. It is not the intent of the law that the agreement that will culminate into criminal conspiracy should be reduced into writing and endorsed by the conspirators like in commercial transactions. Nor must the conspirators be seen together going to and coming out from the scene of crime like those who murdered Julius Caesar. In the accepted legal parlance, they were consensus ad idem on their dastardly and inhuman acts. This is particularly so when these testimonies were uncontradicted documentary and viva voce evidence. The law gives a court the nod to act and rely on unchallenged evidence to arrive at a decision, see Tanko V. State (2009) 4 NWLR (Pt. 1131) 430; Ebeinwe V. State (2011) 7 NWLR (pt. 1246) 402.
Sequel to these unrefuted testimonies, I return a positive answer to the earlier query. That is to say, the respondent, contrary to the contention of the appellant, established the appellant’s commission of the offences of criminal conspiracy to kidnap and to commit culpable homicide punishable by death beyond reasonable doubt as decreed by the sacrosanct provision of section 135(1) of the Evidence Act, 2011, see Bakare v. State (supra). After all, the expression, proof beyond reasonable doubt, a mantra in criminal justice system, does not import proof beyond all shadow of doubt. It connotes that there are credible and cogent evidence indicating high probability that an accused charged, and none other, committed the offence, see Afolalu V. State (2010) 16 NWLR (Pt. 1220) 584; Eke V. State (2011) 3 NWLR (Pt. 1235) 589; Joseph V. State (2011) ALL FWLR (Pt. 599) 1006. Indubitably, the attainment of this standard of proof, beyond reasonable doubt, by the prosecution/respondent is a lesser task in this specie of criminal conspiracy where undisclosed and clandestine agreement, the mens rea, not the actus reus of committing the main offence, constitutes sufficient proof.
On the two counts of conspiracy, the lower court, after a proper assessment of the evidence, on page 111 of the record, found: “… I belief the evidence of the prosecution in this regard as there is enough evidence on record showing they are both criminally involve (sic) in this regard. I hereby hold that only the 1st and 2nd accused are guilty of the offence of conspiracy to murder one Omobolanle Moses contrary to section 97 of the Penal Code and I so hold”
In the above excerpts culled from the judgment of the lower court, the 1st and 2nd accused person are Km.
Amaru Yusuf and the appellant respectively in this appeal. On account of all that I have x-rayed above, I, duly, endorse the two findings made by the lower court. I dare not tinker with it as it is unassailable.
The next offence to be considered is kidnapping. In this wise, it is germane to comprehend the offence of kidnapping. To this end, the provision of section 271 of the Penal Code comes in handy. It provides:
271. Whoever takes or entices any person, under fourteen years of age if a male or under sixteen years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such person without the consent of such guardian or conveys any such person beyond the limits of the state without the consent of someone legally authorised to consent to such removal, is said to kidnap such person.
It can be gleaned, from this provision that the ingredients of the offence of kidnapping, relevant to this appeal, are:
(a) The victim must be taken or enticed out of the keeping of his or her lawful guardian.
(b) The victim must be under fourteen years of age he is a male or below sixteen years if she is a female or a person of unsound mind.
It is incumbent on the respondent to prove these ingredients of the offence of kidnapping to secure conviction of the appellant under section 274, the penalty section, of the Penal Code.
Did the respondent discharge that burden laden on it by law? Again, I have browsed through the evidence before the lower court as manifested in the record of proceedings. The appellant’s evidence in exhibit P8, just reproduced earlier, is salient, apposite and relevant on this point.
Besides, PW3, on page 22 of the record, gave unchallenged evidence that: ”… They lured one Omobolanle 8 year’s old girl with biscuit into the bush ….” Also, PW4, Alimi Olarewaju, on page 51 of the record, gave uncontradicted testimony of how his mother, Rachael Oyelamin, the guardian of the deceased, told him that Omobolanle Moses was missing and they started searching for her. He, also, reported the incident to the police.
To begin with, exhibit P8, having been received in evidence mutated into part of the case for the prosecution, see Egboghonome V. State (supra), Akpan v. State (2001) 15 NWLR (Pt. 737) 745. The portion of Exhibit P8, extracted above, says it all. By the appellant’s own ipse dixit, therein, it is crystal clear that the deceased was within the age bracket, six years old, circumscribed under section 271 of the Penal Code. The portion amply demonstrates that the appellant joined to entice, take or trick her away on the pretence that they were going to pluck oranges in the bush. The evidence of PW3 is to the effect that the appellant lured her into accepting to follow him with biscuit. Then, the unchallenged testimony of PW4 confirms that she was taken away without the consent or assent of Racheal Oyelamin who was standing in loco parentis to her. When these strong and cogent pieces of evidence are aggregated, their net effect is not a moot point. It is that the prosecution proved, beyond reasonable doubt, all the necessary ingredients of the rampant and ravaging offence of kidnapping against the appellant. This is especially so when the appellant offered no contrary evidence in his defence to show reasonable doubt in line with the prescription of section 135(3) of the Evidence Act, 2011.
In his connection, the lower court, on page 113 of record of appeal, held:
It is thus established and proved by the prosecution that the victim is a girl of 8 gears old, under the lawful guardianship of her grandmother. Taken without the granny’s consent, enticed and kidnapped by the duo of the 1st and 2nd accused for probable of money making ritual.
That finding, to my mind, is a total reflection of the evidence before the lower court. I cannot agree more with it as it is impeccable.
The last lap of this pivotal issue appertains to whether the respondent proved, beyond reasonable doubt, the offence of culpable homicide punishable with death against the appellant, By virtue of the provision of section 220 of the Penal Code, culpable homicide is defined thus:
220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act cause death; or
(c) by doing rash or negligent act, commits the offence of culpable homicide.
By virtue section 221 of the penal Code, culpable homicide becomes punishable with death if the act which caused death is done with that intention or the doer knew that death would be the probable and likely consequence of the act.
Against the backdrop of these provisions, the ingredients of culpable homicide punishable with death are: (a) that the death of a human being has taken place; (b) that the death was caused by the accused; (c) that the act was done with intention of causing death; and (d) that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act. The law has saddled the prosecution, the respondent herein, with the herculean responsibility of proving each of these ingredients beyond reasonable doubt against an accused, the appellant here, see Akpan v. State (supra); Ogbu v. State (2007) 5 NWLR (Pt. 1028) 635; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Akpa v. State (2008) 14 NWLR (Pt. 1106) 721 Musa v. State (2009) 15 NWLR (Pt. 1165) 467 and Jua v. State (2010) 4 NWLR (Pt. 1184) 217.
In continuation of the appellant’s evidence in exhibit P8, on page 13 of the record, he added:
…When he wanted to cut the head, I assisted by holding her legs, she used the sharp cutlass to cut the head twice and the head was severed out of her body. Before the act was done, we approached the man and he said we should bring the head that was why we went ahead. After the assignment, we took the head to him…”
In same exhibit, he gave a graphic, but awesome, picture of how he, with Kamaru Yusuf, took the deceased’s head, exhibit P1, in a polythene bag to the third accused and how he rejected it and they dropped it in a bush between Ikosin and Iyeku road. By the unchallenged evidence of PW2, Eksemi Minebi, a police officer attached to Ilemona Police Station, he confessed to killing the deceased to him when he was arrested.
The oral confession the appellant made to PW2 is cognizable in law, see Jua v. State (supra); Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165. Both the oral and written confessions are the most potent evidence in criminal trials. In the case of Akpa v. State (2008) 14 NWLR (Pt. 1106) 72 at 95, Tobi, JSC, succinctly stated:
…Confession in criminal procedure, like admission in civil procedure, is the strongest, evidence of guilt on the part of an accused. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence that? He knows or knew what he did and he says or said it in court. Is there need for any further proof? I think not.”
In my view, the oral and written confessions made by the appellant are cogent, compelling and consistent so much so that they qualify as confessions as envisaged by section 28 of the Evidence Act, 2011. It can be discerned from the confession that the appellant gave a vivid, but sorrowful, account of how he gruesomely snuffed life out of the deceased for his undying quest for affluence. Exultantly, the law gives the courts the latitude to convict an accused, such as the appellant, solely on his confession to a crime, see Arogundare v. State (supra); Olabode v. State (supra) 11 NWLR (Pt. 1152) 254; Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Jua v. State (supra); Omogu v. FRN (2008) 9 NWLR (Pt. 1085) 38; Njovens v. State (supra); Shalla v. State (2007) 18 NWLR (pt. 1066) 240.
That is not all. There are other pieces of evidence that corroborate the appellant’s confessions. The unchallegened evidence of PW3 shows how the appellant, on 06/09/2007, accompanied their team to the bush where they left the severed head of the deceased, exhibit P1. Moreover, there is, also, the evidence of PW5, the commercial motorcycle rider who took them, while carrying exhibit P1 in a polythene bag, from Irra to Ikosin and back on the very day, 27/08/2007, when the deceased got missing. That circumstantial evidence is cogent, compelling, credible and irresistibly point to the appellants as the perpetrator of the foul crime of killing the deceased in cold blood. These testimonies make it probable that the appellant’s confessions are true, that he had the opportunity of committing the offence and that the confessions are consistent with other proved facts. In sum, the appellant’s confessions have satisfied the legal tests they are supposed to be subjected to, see Nwachukwu v. State (2007) All NWLR (Pt. 390) 1380 at 1410.
The appellant made heavy weather of the point that he was not a Party to the offence because the deceased was already strangled to death before he joined Kamaru Yusuf in the farm. The appellant’s fuss over the strangulation of the deceased has no place in law. The law, which is aptly captured by learned respondent’s counsel, is that where two or more persons form a common intention to carry out an unlawful purpose communally and in the course of prosecution of the unlawful purpose, an offence was committed of such a nature that its commission was the probable consequence of the prosecution of such purpose, each of the persons would be deemed to have committed the offence. It is immaterial to prove what reach of them did in the actualization of their preconceived common intention or purpose, see Oyakhire v. State (2006) 27 NSCQR 109; State V. Oladimeji 2003) 14 NWLR (Pt. 839) 57.
In the case in hand, the appellant, with his bosom friend, Kamaru Yusuf, the appellant in the other appeal, set out from Ore, Ondo State, where they resided as roommates, with a preconceived plan of how to get a human head for use by Salihu Oyewale in making money for them. In the execution of that unlawful purpose, the deceased, Omobolanle Moses, was killed by strangulation and severance of head from her body. In the glaring eyes of the law, it is of no moment whether it was Kamaru Yusuf or the appellant that choked her to death. The bottomline is that her death was the probable consequence of their conspiracy to get a human head. It matters not whether the appellant was waiting for Kamaru Yusuf at home or a bystander at the scene of the crime. The person, Kamaru Yusuf, who delivered the blow or matchet cut, was no more than the hand by which the appellant struck. I drum up support from this position of the law and hold that the appellant was particeps criminis in the killing of the deceased by strangulation.
By a conglomeration of these credible evidence, confessions and circumstantial, it is needless to doubt, that the respondent proved, beyond reasonable doubt, the ingredients of the heinous offence of culpable homicide punishable with death against the appellant. The appellant’s oral and written confessions alone amply signify that the respondent, with exhibit P8 being party and parcel of its case, established all the ingredients of the offence beyond reasonable doubt against him as mandated by section 135(1) of the Evidence Act 2011. The appellant’s presumption of innocence, guaranteed under section 36(5) of the Constitution, as amended, is drowned by his own confessions. After all, the purport of proof beyond reasonable doubt is to show that nobody else, except an accursed person, committed the offence charged, see Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584, Nwaturoucha v. State (2011) 6 NWLR (Pt. 1242) 170; Bolanle v. State (2009) 18 NWLR (Pt. 1172) 1. By the same token, the appellant’s undiluted confessions to the commission of the heinous crime makes it otiose for him to show any reasonable double as ordained by the provision of section 135 (3) of the Evidence Act, 2011. In the end, I resolve the issue (one) against the appellant.
That brings me to a consideration of issue two. The nitty-gritty of the appellant’s complaint on the issue is that his defence of alibi was not properly evaluated by the lower court which failure caused miscarriage of justice to him.
It behoves a court of law to consider any defence available to an accused person deciphered or disclosed in evidence before the court. A court will be shying away from this legal responsibility if it declines to consider a defence because it is stupid, foolish unreasonable, improbable or unfounded. This duty is laden on a court whether or not it is raised by an accused person or his legal practitioner, see Nse Udo Nuta V. The State (supra); Rasaki Oladipupo V. The State (supra); Yaro V. State (2007) 18 NWLR (Pt. 1066) 215; Shalla V. State (2007) 18 NWLR (Pt. 1066) 240.
During the examination-in-chief of the appellant, on page 74 line 16 of the cold record of appeal, he stated: “I did not follow the 1st accused who carried the nylon to the 3rd accused place. I was at Ore in Ondo State on that day”. In the domain of the law, that is defence of alibi the word, alibi traces its lexical roots to Latin Language where it means ‘elsewhere’. The defence, which now permeates our criminal justice system, denotes the physical impossibility of a person or an accused to be somewhere else and at the same time at the scene of a crime. It is a complete defence, which if proved in favour of an accused person, absolves him of any criminal liability. The law insists that it must be raised by an accused person and disproved by the prosecution.

It is trite law that an accused person wishing to take refuge under this all-saving defence must raise it timeaously, at the earliest opportunity of contact with the investigating security agencies. He must also furnish them, usually the police, with sufficient particulars or data about his whereabouts on the day and those with him on the day in question. Thereafter the duty shifts to the prosecution to investigate the alibi and affirm or disprove same. It is destroyed by contrary evidence fixing the appellant at the place of the crime. If it is disproved, the defence fails and vice versa. Thus, in the case of Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 606, Fabiyi, JSC, opined:
The appellant, in his oral evidence, attempted to put up the defence of alibi. This means that he was not at the scene of crime. Alibi means ”elsewhere”. It is the it is the duty of the accused to furnish the particulars of alibi to the police at the earliest opportunity. He must furnish his whereabout and those present with him. It same Failure to investigate will lead to acquittal. See Yanor v. The State (1965) WRNLR 34; Bello V. IGP. (1956) SCNLR 113; Gachi V. The State (1965 NMLR 333; Odu & Anr. V. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (pt. 722) 669.
The appellant who did not put up his defence of alibi at the time of investigation cannot be taken seriously. Making the plea in his evidence at the trial is a ploy which equates to an after-thought. It was to no avail in the circumstance.
See, also, Wakala V. The State (supra); Isong Akpan V. The State (supra) Ogebola V. The State (supra); Balogun v. A. – G., Ogun State (supra.); Akpan V. State (supra); Onuchukwu V. The State (supra.); Sowemimo V. The State (2004) 11 NWLR (Pt. 885) 515; Ebri V. State (2004) 11 NWLR (Pt. 885) 589; Shehu V. State (2010) NWLR 8 NWLR (Pt. 1195) 112; Attah V. State (2010) 16 NWLR (Pt. 1220) 584; Sunday V. State (2010) 18 NWLR (Pt. 1224) 223; Nwaturuocha V. State (2011) 6 NWLR (Pt. 1242) 170.
In the instant case, like in Eke’s case supra, the appellant raised the defence midstream during his evidence-in-chief when he said he was in Ore on that particular day. The appellant had, in exhibit P8, relayed to the police that he was in Irra, the village of the deceased, on 26/08/2007 – 29/08/2007. It stems from the above that by the appellant’s own ipse dixit in exhibit P8, he was at the locus criminis on the day the offence was committed. The PW5 and PW6 assisted him to confirm that he was in Irra town at all time material to the commission of the offence. For him to come under the saving sanctuary of this alibi, he ought to have given the police, while taking exhibit P8, the information that he was at ore on 08/08/2007. Even the volte face on somersault, which he made in the course of his evidence-in-chief to the effect that he was in Ore, Ondo State, is not only belated, but smacks or reeks of after- thought. It is, also, void of particulars with which the police could have acted. Needless to say that the appellant himself put paid to the defence of alibi erected by him. I, therefore, affirm the finding of the lower court that he was at the locus delicti on the day the foul crime of culpable homicide punishable with death was committed. In sum I resolve the issue (two) against the appellant.
It is unfortunate, tragic and heartbreaking that the innocent girl, Omobolanle Moses, was sent to her untimely grave by the appellant’s insatiable greed for, money and opulence – the root of all evils. The idea of using humans parts for money making, which usually turns out phantom, is already an endemic menace to the Nigerian society. It is a quintessence of instruments of darkness, in the words of William shakespeares that tell us truth in little things to betray us into deeper consequence. The appellant, on the premise of the avalanche of evidence against him, deserves to march to the gallows if only to deter other youth from nursing such phoney ideas.
On the whole, the deceased had a fundamental right to life, see Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Shalla v. State (2007) 18 NWLR (Pt. 1066) 240; Amoshima v. State (2011) All FWLR (Pt. 597) 601. Regrettably, her, precious and priceless life was taken away from her, by the appellant, in circumstances not permitted by law. In the result, there is no tinge of merit in the appeal. It is a non-starter. Accordingly, the appellant’s appeal is dismissed. I affirm the convictions and sentences passed on him by the lower court.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the illuminating Judgment of my learned brother Ogbuinya, JCA and an in total agreement with his reasoning and conclusion that this appeal lacks any modicum of merit and should be dismissed with the ignominy it deserves
It is disheartening that in this 21st Century, persons of the Appellant’s ilk can still be engaged in such nefarious and primitive acts of mindless and dastardly termination of an innocent girl’s life just for the crave for filthy lucre, in this case, money. This is a classic case for those religiously and feverishly advocating for the abolition of death penalty in this country; which for some of us, is not only untimely and uncalled for in our present level of civilization, social condition and development.
Can any person in his right senses and possessed of the milk of humaneness, under the guise of Human Rights Advocacy, condone this wanton killing of this innocent girl who was lured with biscuit to the bush in the guise of going to pluck oranges only for her to be strangled to death, decapitated and her precious head taken away to a money-making ritualist? I think not.
Surely, the Spirit of this unfortunate harmless and armless angel whose life has been prematurely terminated and the joy of parenthood denied her parents, particularly her dear grandmother with whom she lived as at the time of the incident; will not rest until her blood and gruesome murder which are now crying to high heavens have been avenged by the instrumentality of law. I believe that even God the creator of man in his own image and likeness in his extreme benevolence has decreed that we should not take life because we are incapable of giving same and our Grundnorm the Constitution of the Federal Republic of Nigeria (as Amended) has equally entrenched in Section 33 thereof; the sanctity and right to life nay the circumstances under which a citizen of this Country can be deprived of his or her life. In the circumstances of this case, the Appellant who has connived with his other confederates to snuff out the life of Omobanle Moses; must not only incur the wrath of God but must pay the Supreme price of death under the Laws of the Land for his impunity and heartless act.
It is for these reasons and the more elaborate reasons so perfectly and eruditely advanced by my learned brother in his lead judgment, that I also dismiss the Appeal and affirm the Judgment of the lower Court sentencing the Appellant to the various terms of imprisonment and ultimately death by hanging!!

ITA G. MBABA, J.C.A: I agree with the reasoning and conclusions of my learned brother OGBUNIYA JCA in the lead judgment that this appeal lacks merit and should be dismissed.
It is very sad and strange that the desire and ambition to make fortunes in business and become rich and wealthy can drive one into the wicked act of killing a fellow human being, and that, an innocent young girl, in cold blood, for sacrificial ritual to realize the desire/ambition. Appellant was indeed, heartless and mean to have thought of living to profit from such heinous crime, which cannot escape divine wrath, even if uncovered by man, due to mortal’s weakness
For the reasons fully articulated in the lead judgment, I too, dismiss this Appeal and uphold the judgment of the trial Court in Suit No. KWS/17C/2006.
I abide by the consequential orders in the lead judgment.
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Appearances

Dr. Akin Onigbinde (with him, V. Ogiemwonyi (Miss))For Appellant

AND

M. A. Oniye, Esq.; ACSC, Ministry of Justice, Ilorin (with him, A. A. Akeukewe Esq, SSC)For Respondent