DANIEL PETER V. THE STATE
(2013)LCN/6056(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2013
CA/B/128C/2010
RATIO
“The position of the law is that before the court can admit and make use of an extra judicial statement made by the prosecution witnesses, the witnesses must have been confronted with the statement under cross examination. The only use the statement of a prosecution witness who gave evidence in court can be made of is for discrediting him in cross-examination by the defence counsel. S.232 of the Evidence Act 2011 provides as follows: A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him: Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit.” PER OGUNWUMIJU, J.C.A.
“..for an appellant to benefit from any defect in a charge, he (she) has the duty/burden to prove to the satisfaction of the court at any stage of the case, that the error or omission on the face of the charge had misled the accused/appellant during the trial and had also led to a miscarriage of justice. If the Appellant cannot establish how he was misled by the error or how the error led to a miscarriage of justice during the trial, the error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See John Timothy v. FRN in Suit No.SC 129/2007 delivered on 15/6/2012 by the Supreme Court. Also see Yabugbe v. C.O.P. (1992) 4 NWLR Pt. 232 Pg. 153 at 172 and 176.” PER OGUNWUMIJU, J.C.A.
“it is clearly the duty of the defence counsel during trial to seek to tender the extra judicial statements of the prosecution witnesses when there are material contradictions which may be used to discredit them. The proofs of evidence containing statements made by all the witnesses in the case are ordinarily to be served on the accused or his counsel so he will be able to meet the case made out by the prosecution and to defend himself adequately. The procedure during trial is that where a witness had given evidence on oath in court which is materially different from the extra judicial statement hitherto given to the police by the said witness, the defence counsel will ask the prosecution to produce the original of such statements which would ordinarily be in the custody of the prosecution and copies of which would ordinarily be part of the proof of evidence served on defence counsel to aid in the defence of the accused. After obtaining the extra judicial statement from the prosecution, the defence counsel will put to the prosecution witness during cross-examination that he/she made a statement on such date and such time (laying foundation for the admission of the statements as exhibit) etc. Then the defence counsel will draw the attention of the prosecution witness to the specific portions of the said statements which contradicts the previous evidence on oath made by the witness. The defence counsel will then seek to tender the said statement particularly the portions containing the contradictions and it will be admitted in evidence as an exhibit by the trial court. It is the duty of the defence counsel to highlight these contradictions and give the witness an opportunity to explain them. If not properly explained, it is a matter to be drawn to the attention of the court during the trial and particularly during the address of counsel. It is not the duty of the prosecution to tender such extra judicial statements made by its witnesses. In Balogun v. Attorney General, Ogun State (2002) 6 NWLR Pt. 763 Pg. 512; (2002) 2 SC Pt. 11 Pg. 89, Uwaifo JSC held that the onus is on the party claiming contradiction between evidence on oath and extra judicial statement of a witness to bring it to the attention of the witness for explanation.” PER OGUNWUMIJU, J.C.A
CRIMINAL LAW AND PROCEDURE: ALIBI: WHETHER A PERSON WHO CLAIMS ALIBI MUST LEAD EVIDENCE
“…It is the duty of the police who are investigating to ask questions from the suspect. A suspect arrested for a crime he has not committed cannot start volunteering information about where and whom he was with at a particular time. The police are obliged to ask him where he was and whom he was with at the particular time the offence was committed especially where in this case he denied participation in the offence. If he did not participate in committing the offence how would he know the precise time he needs to explain and justify to the police? A typical suspect asked generally about his whereabout will give a general answer. Until he is asked to state specifics, he cannot be punished for not volunteering them. Part of the duty of the police in investigating an alibi is to ask specific questions from the suspect who has raised a defence of alibi. That is what is called “investigating”. When further “investigating” the alibi they will know whom to talk to in order to confirm or rebut the accused person’s alibi. The authority of George V. The State (2009) 1 NWLR Pt. 1122 Pg. 325 at 344 is relevant here. In that case it was held as follows:- “All that is required in a plea of alibi is the whereabouts of the accused at the material time other than the locus delicti with particulars to enable the police verify the claim. Appellant had no burden to lead evidence on his plea of alibi. His duty is only to state, and gives particulars of, where he was at the time of the crime. See Okosi v. State (1989) 1 CLRN 29 at 33; (1989) 1 NWLR pt. 100 Pg.642; Yanor v. The State (1965) 1 All NLR 193. Failure to investigate alibi and for which particulars are supplied by the accused renders the alibi unrebutted and, depending on the facts and circumstances of a particular case, may vitiate the proof beyond reasonable doubt of the case against the accused. See Gachi V. The State (1965) NMLR 333.”PER OGUNWUMIJU, J.C.A
JUSTICE
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
Between
DANIEL PETERAppellant(s)
AND
THE STATERespondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice C.O. Ogisi, judge of the Delta State High Court sitting at the Owa Oyibu Judicial Division delivered on 5th August, 2009 wherein the Appellant was convicted for the offences of conspiracy to commit armed robbery and armed robbery. The facts that led to this appeal are as follows. The Appellant was charged to court on a two-count charge of conspiracy to commit armed robbery and armed robbery. Both offences are punishable under S.1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The particulars of the offences are stated thus:
PARTICULARS OF OFFENCE: COUNT I
DANIEL PETER on or about the 26th day of May, 2007 at Owa Oyibo within Owa-Oyibo Judicial Division conspired with others now at large to commit armed robbery.
PARTICULARS OF OFFENCE: COUNT II
DANIEL PETER on or about the 26th day of May, 2007 at Owa-Oyibo within Owa-Oyibo Judicial Division robbed one Chibuogwu Francis, of his motor cycle with registration No. DT 6235 Y while armed with offensive weapon to wit: battle axe.
To prove its case, the respondent called four witnesses. Chibuogwu Francis, the victim on the face of the charge testified as PW1. His wife testified as PW2. The couple testified that PW2 was robbed by armed robbers including the appellant along Ute-Owerre road at about 5.30 am on 26th May, 2007 and a Lifan motorcycle was snatched from her. The couple said that they recognized the appellant as one of the armed robbers.
PW3 and PW4 were police officers who investigated the crime. The prosecution tendered a total of three exhibits through these police officers. Exhibits 1 and 2 were the extra-judicial statements made by the appellant. Exhibit P3 was the motor cycle allegedly snatched by the appellant and recovered from some other robbery accused.
The Appellant called two witnesses. DW1 was the Appellant’s wife while DW2 was a 12 year old boy living with them. Both D. W. 1 and D. W. 2 confirmed the alibi of the Appellant who gave evidence in his own defence as D. W. 3 that on the day in question which was a Saturday the Appellant went to the farm early in the morning on 26th May 2007. When the Appellant returned from the farm around 12 noon, DW1 told him that his uncle, one Okafor had sent for him. The Appellant then left for Idumuesan to answer the summons of his uncle. In Exhibits 1 and 2 the extra judicial statements of the Appellant, he denied the charges and mentioned that he was at home in the early hours of 26th May 2007 when the offence was committed before he left for the farm with D.W. 2.
Upon the close of appellant’s defence, counsel for both parties addressed the lower Court. In its judgment, the lower Court found the appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery, and sentenced him to 25 (twenty five) years imprisonment with hard labour on each count. The sentences are to run concurrently.
Dissatisfied with the judgment, the appellant filed a notice of appeal containing four grounds of appeal on 10th August, 2009. The appellant subsequently filed an amended notice of appeal on 27th of August, 2012. Briefs were filed in this court by both parties and the appeal was argued by counsel. The Appellant’s brief was filed on 4th October 2012 and deemed filed on 28th November 2012. The Respondent’s brief was filed on 7th January 2013. The Appellant’s counsel in the brief settled by Ekeme Ohwovoriole Esq. identified four issues for determination as follows:-
1. Whether the evidence adduced by the prosecution was at variance with the charge preferred against the appellant; if so, whether the appellant’s conviction is not liable to be quashed. (Grounds 3 and 10).
2. Whether the lower court was right in relying on the evidence given by the PW1, PW2, and other prosecution witnesses when their evidence was clearly inconsistent with their previous statements and no reason was given for the inconsistencies. (Ground 6).
3. Whether the court properly considered and/or resolved the defence of alibi raised by the appellant in both of his statements Exhibits P1 and P2, and his oral testimony, especially when the Police did not investigate his defence. (Grounds 2, 8 and 9).
4. Whether the lower court was right in holding that the prosecution had established its case beyond reasonable doubt, when the evidence of PW1, PW2, and other prosecution witnesses are unreliable unconvincing and fall far short of the standard required to establish proof of guilt in a criminal trial (Grounds 5, 7, 11 and 12).
In the Respondent’s brief settled by Mr. O.F. Enenmo, Deputy Director of Public Prosecutions, Delta State, counsel identified three issues for determination as follows:-
1. Whether the learned trial Judge was right in law when he held that the prosecution proved its case against the accused person in the two count charge beyond reasonable doubt.
2. Whether there was evidence on record on which the learned trial Judge held that the appellant was identified as one of the robbers that robbed PW1 and PW2 in this case.
3. Whether the learned trial judge was right in law when he held that the defence of alibi will not avail the appellant.
ISSUE ONE:
Having read the records, and the issues submitted for determination by both counsel, I am of the view that there are only two issues for determination in this appeal and they are crystalised by me as follows:-
1. Whether the conviction of the Appellant is not liable to be quashed since the facts adduced in evidence by the prosecution are at variance with the charge.
2. Whether the learned trial judge was right when he held that the prosecution had proved its case against the appellant beyond reasonable doubt.
The Appellant’s counsel argued that the Appellant was arraigned for conspiring to commit armed robbery and committing armed robbery against Chibuogwu Francis by robbing him of his bicycle registration No. DT 6235 Y. He is of the view that since the charge did not disclose any other victim of the offence and all the prosecution witnesses referred to the victim as PW2 instead of PW1 and also that the learned trial Judge convicted the Appellant on the said evidence, then, the evidence led at the trial and the findings of the trial court was at variance with the charge. He submitted that since parties are bound to conduct their cases within the parameters of the issues thrown up by the pleadings, or statement of offence (with particulars), therefore when the prosecution gives evidence at variance with the charge, the skeleton (particulars) remain bare and the charge cannot be said to have been proved beyond reasonable doubt. He cited Olohunde v. Adeyoju (2000) 10 NWLR Pt. 676 Pg. 562 at 585; Aigbe v. The State (1976) 9-10 SC Pg. 77 at 223.
The Respondent’s counsel in reply to this issue submitted that the evidence led in court is not at variance with the charge before the court. There is evidence which was believed by the trial court that – (a) The motor cycle subject matter of this charge was bought by the PW1 for PW2 (b) At the time of the robbery PW2 was riding the motor cycle. In an attempt to prevent the motor cycle from being stolen, the PW1 was beaten by the robbers before the motor cycle was stolen from him. He submitted that the charge before the court is that the appellant robbed PW1 of his motor cycle and referred to the charge sheet at page 1 of the records of appeal. Respondent’s counsel submitted that the fact that the PW2 was riding the motor cycle before the robbery incident does not make the charge at variance with the evidence led and that in a charge of armed robbery all the charge sheet need contain is the fact that the accused robbed the victim(s) of his/their valuables while armed with firearm or an offensive weapon. The victims in this case are the PW1 and PW2. The undisputed evidence on record is that the appellant and two others robbed them of a motor cycle while armed with offensive weapons to wit: cutlass and axe.
I have considered the two cases cited above by learned Appellant’s counsel. In Aigbe V. The State supra, the Supreme Court held that a count charging general conspiracy to commit an offence need not state the object of the conspiracy with the same certainty as is required in a charge for the offence conspired to be committed. The Supreme Court also considered and laid down the guidelines in respect of the powers of the Supreme Court to order a retrial in a criminal appeal before it. In Olohunde v. Adeyoju supra, a civil case, this court merely stated obiter, a trite rule of law and procedure to wit that it is the plaintiff’s claims in the writ that determines whether the case is within the jurisdiction of the court. The cases are therefore not relevant in respect of the principle for which they were cited as authority.
S. 166 of the Criminal Procedure Laws of Delta State which is in pari materia with S.166 of the Criminal Code Act Laws of the Federation, states as follows:
S.166 – No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or these particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.
I am of the humble view that for an appellant to benefit from any defect in a charge, he (she) has the duty/burden to prove to the satisfaction of the court at any stage of the case, that the error or omission on the face of the charge had misled the accused/appellant during the trial and had also led to a miscarriage of justice. If the Appellant cannot establish how he was misled by the error or how the error led to a miscarriage of justice during the trial, the error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See John Timothy v. FRN in Suit No.SC 129/2007 delivered on 15/6/2012 by the Supreme Court. Also see Yabugbe v. C.O.P. (1992) 4 NWLR Pt. 232 Pg. 153 at 172 and 176.We must remember that the purpose of giving the particulars as to the time, place and person against whom the crime was committed is to give notice of the crime with which the accused is charged to enable him meet the case of the prosecution. Let us look at the circumstances of this case. The appellant was charged with conspiring to rob and robbing the PW1 of the named motorcycle. On the morning in question, if we believe the evidence of PW1 and PW2, both of them were on two different motor cycles bought by PW1, the husband of PW2 when they were both attacked by armed robbers who made away with one of the motorcycles. These are the offences which the appellant had been charged with. Given the evidence led at the trial, I must concede that there was an error in the particulars. However, Learned Appellant’s counsel did not pretend to argue that the appellant was misled as to the specifics of the charge levied against him nor did appellant’s counsel contend in what particular way the trial court had miscarried justice by virtue of the error in the charge in naming only PW1 as the only person who was robbed and as the owner of the motorcycle.
It is my humble view that learned appellant’s counsel has failed to show how the error in the charge not only misled the appellant, but has led to a miscarriage of justice by the trial court. In the circumstances, this issue is resolved against the appellant.
ISSUE TWO:
Whether the learned trial judge was right when he held that the prosecution had proved its case against the appellant beyond reasonable doubt.
This issue as couched earlier on by me has encompasses all the complaints raised by the appellant in this appeal as regards the actual merit of the appeal.
Learned appellant’s counsel argued that the evidence of the prosecution witnesses on oath at the trial court was blatantly inconsistent with their previous extra judicial statements made to the police and no reasons were given for the inconsistencies. He cited Onubogu & Anor. V. The State (1974) All NLR 561; Edoho v. The State (2010) FWLR Pt. 530 Pg. 1262 at 1297; Egboghonome v. State (1993) 7 NWLR Pt. 306 Pg. 383; (1993) 9 SCNJ 1 and Stephen Emoga v. State (1997) 7 SCNJ 518 at 529 (1997) 1 NWLR Pt. 483 Pg. 615.
Learned appellant’s counsel argued that there are material inconsistencies between the extra judicial statements and evidence on oath of PW1 against the appellant. This included the inconsistency about the person from whom the motor cycle was snatched, inconsistency about the number of armed robbers on a motorcycle, inconsistency about whether PW1 knew the family of the Appellant, inconsistency about how PW1 recognised that it was the appellant who robbed them, inconsistency about whether he lost consciousness during the robbery, etc. Learned appellant’s counsel also argued that there were also inconsistencies between the extra judicial statements of PW2 and her oral testimony on oath. This includes inconsistency about how she recognized the appellant, including events that followed the robbery incident etc.
Appellant’s counsel argued that it is the duty of the State counsel to exhibit all the facts before the court and that the failure of the prosecution to tender extra judicial statements in the proof of evidence is caught by S.167(d) of the Evidence Act 2011. He argued that the prosecution has the duty to exhibit all facts before the trial court. He cited Emenegor v. The State (2010) AII FWLR Pt. 511 Pg. 884 at 931. He submitted that the failure of the police to tender these statements made before the trial had caused miscarriage of justice.
In reply to the appellant’s counsel’s arguments above, the learned Respondent’s counsel submitted that the position of the law is that only evidence properly authenticated, either by oral testimony of a party or the written statement tendered and admitted during proceedings can be evidence in a trial. Extra-judicial statements which remain in that category however credible they may appear cannot be used as evidence in a trial. He cited Karibi-Whyte, JSC in State v. Ogbubunjo (2006) vol. 5 LRCNCC 403 at 426.
He further submitted that the extra judicial statements of PW1 and PW2 referred to by the applicant in this case were not tendered nor admitted in evidence at the trial, and that the learned trial judge was right in law when he refused to rely or make references to the prosecutions’ witnesses extra judicial statement before concluding that the prosecution proved its case beyond reasonable doubt. He also cited Balogun v. Attorney General, Ogun State (2002) 94 LRCN 260.
We must understand that the argument of learned Appellant’s counsel is essentially that it is the duty of the prosecution to tender extra judicial statements made by its witnesses as exhibits during the trial. It is my humble view that that is not the position of the law. The position of the law is that before the court can admit and make use of an extra judicial statement made by the prosecution witnesses, the witnesses must have been confronted with the statement under cross examination. The only use the statement of a prosecution witness who gave evidence in court can be made of is for discrediting him in cross-examination by the defence counsel.
S.232 of the Evidence Act 2011 provides as follows:
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him:
Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit.
Thus it is clearly the duty of the defence counsel during trial to seek to tender the extra judicial statements of the prosecution witnesses when there are material contradictions which may be used to discredit them. The proofs of evidence containing statements made by all the witnesses in the case are ordinarily to be served on the accused or his counsel so he will be able to meet the case made out by the prosecution and to defend himself adequately. The procedure during trial is that where a witness had given evidence on oath in court which is materially different from the extra judicial statement hitherto given to the police by the said witness, the defence counsel will ask the prosecution to produce the original of such statements which would ordinarily be in the custody of the prosecution and copies of which would ordinarily be part of the proof of evidence served on defence counsel to aid in the defence of the accused.
After obtaining the extra judicial statement from the prosecution, the defence counsel will put to the prosecution witness during cross-examination that he/she made a statement on such date and such time (laying foundation for the admission of the statements as exhibit) etc. Then the defence counsel will draw the attention of the prosecution witness to the specific portions of the said statements which contradicts the previous evidence on oath made by the witness. The defence counsel will then seek to tender the said statement particularly the portions containing the contradictions and it will be admitted in evidence as an exhibit by the trial court. It is the duty of the defence counsel to highlight these contradictions and give the witness an opportunity to explain them. If not properly explained, it is a matter to be drawn to the attention of the court during the trial and particularly during the address of counsel. It is not the duty of the prosecution to tender such extra judicial statements made by its witnesses. In Balogun v. Attorney General, Ogun State (2002) 6 NWLR Pt. 763 Pg. 512; (2002) 2 SC Pt. 11 Pg. 89, Uwaifo JSC held that the onus is on the party claiming contradiction between evidence on oath and extra judicial statement of a witness to bring it to the attention of the witness for explanation. In this case the counsel for the appellant at the trial court did not discharge the onus to challenge the witnesses with their extra judicial statements. This contention is completely misconceived by learned appellant’s counsel and that argument is resolved against the Appellant.
The second contention of learned appellant’s counsel is that the police failed to investigate the alibi of the appellant and the court did not properly consider the alibi raised by the appellant in his defence. Learned appellant’s counsel submitted that it is settled law that once the defence of alibi has been raised, the burden is on the prosecution to investigate and rebut such defence in order to prove its case beyond reasonable doubt. The only burden on the accused raising the alibi is to adduce some evidence tending to show that he was elsewhere other than at the scene of crime. Once that is done, it is the duty of the prosecution through the agency of police investigation to check on the alibi. He cited Hausa v. State (1994) 6 NWLR Pt. 350 Pg. 281 at 302. He also cited George v. The State (2009) 1 NWLR Pt. 1122 Pg. 325 at 344. Learned appellant’s counsel argued that the alibi raised by the appellant can be seen plainly in exhibits P1 and P2 and the oral testimony of the three defence witnesses. In summary, the defence is that the appellant and DW2 went to the farm at Obidigbo in the morning on 26th May, 2007, leaving DW1 at home to fry garri. When the appellant returned from the farm in the afternoon, DW1 informed the appellant that his uncle named Okafor from Idumuesah visited the house and requested that the appellant should come and see him at Idumuesah. The appellant heeded the summons and went to Okafor’s house at Idumuesan. When the appellant got there, Okafor asked him to sit down and that he was coming back as he wanted to call the persons looking for the appellant. Okafor returned with the vigilante and they started beating up the appellant before PW1 and PW2 arrived and the appellant was taken to the police station at Owa Oyibu.
Learned appellant’s counsel drew our attention to the fact that both statements made by the appellant, exhibits P1 and P2 as regards his alibi on the day in question were not investigated by the investigating police officers, PW3 and PW4 and who recorded Exhibits P1 and P2. Counsel argued that the police had the opportunity to investigate the alibi but refused to do so and that this court should hold that the findings of the trial court in this regard were perverse. He cited George v. State, supra, 325 at 345; Ikemson v. State (1989) 1 CLRN 1; Onubodu v. State (1974) 9 SC 1 and Yanor v. The State (1965) NMLR 387 at 341- 342.
Learned Respondent’s counsel argued that exhibits P1 and P2 the extra judicial statements of the appellant were not precise as to his whereabouts at the precise time the robbery incident took place and the persons with him when the robbery took place. Counsel also argued that it was only in exhibit P2 that the appellant mentioned that he went to the farm with DW2 while he did not do so in Exhibit P1. Respondent’s counsel argued that the case of the prosecution at the lower court and before this court is that the defence of alibi will not avail the appellant as there is undisputed evidence of PW1 and PW2 fixing the appellant to the scene of crime. Counsel further submitted that although the defence of alibi did not avail the appellant, there are stronger evidence against the evidence led by the appellant in support of his alibi. Counsel cited the following cases Odoebere v. State (2001) FWLR Pt. 159 Pg. 1259 at 1259; Esangbedo v. State (1998) 1 ACLR Pg. 109 at 129; Onuchukwu v. State (1993) 58 LRCN 3393 at 3409 D-E.
At the trial, the Honourable Court came to this conclusion:
“I have read the statements of the accused person who said at the time of the incident he was in his farm. He did not however give particulars of the farm. He did not as much as state the town where his farm was. It is trite law that an accused who raises the defence of alibi must give particulars of where he was, to give the prosecution the opportunity to verify the claim. See Ikemson v. The State (1998) supra, 80 at 98. This the accused has not done. Apart from the fact that the accused did not provide particulars of his whereabout, the evidence of the PW1 and PW2 sufficiently established the identify of the accused as one of those who took part in the robbery. It is trite that where an accused is unequivocally pinned to the locus inquo (sic) as one committing the offence, the defence of alibi no more avail the accused.”
There is no doubt that for the defence of alibi to avail the appellant, he is expected to lead evidence to show that:
(a) He raised the defence at the earliest opportunity in most cases in the first extra-judicial statement to the police. He must be able to say in his statement where he was at the precise time the robbery incident took place.
(b) He should be able to mention by name the people that were with him at time the robbery incident took place.
(c) Where the prosecution adduces evidence to fix him at the scene of crime, he must lead evidence by calling as witness the persons that were with him at the precise time the robbery incident took place.
I must emphasise here an issue as to how a suspect is to be treated when he raises an alibi. It is the duty of the police who are investigating to ask questions from the suspect. A suspect arrested for a crime he has not committed cannot start volunteering information about where and whom he was with at a particular time. The police are obliged to ask him where he was and whom he was with at the particular time the offence was committed especially where in this case he denied participation in the offence. If he did not participate in committing the offence how would he know the precise time he needs to explain and justify to the police? A typical suspect asked generally about his whereabout will give a general answer. Until he is asked to state specifics, he cannot be punished for not volunteering them. Part of the duty of the police in investigating an alibi is to ask specific questions from the suspect who has raised a defence of alibi. That is what is called “investigating”. When further “investigating” the alibi they will know whom to talk to in order to confirm or rebut the accused person’s alibi. The authority of George V. The State (2009) 1 NWLR Pt. 1122 Pg. 325 at 344 is relevant here. In that case it was held as follows:-
“All that is required in a plea of alibi is the whereabouts of the accused at the material time other than the locus delicti with particulars to enable the police verify the claim. Appellant had no burden to lead evidence on his plea of alibi. His duty is only to state, and gives particulars of, where he was at the time of the crime. See Okosi v. State (1989) 1 CLRN 29 at 33; (1989) 1 NWLR pt. 100 Pg.642; Yanor v. The State (1965) 1 All NLR 193. Failure to investigate alibi and for which particulars are supplied by the accused renders the alibi unrebutted and, depending on the facts and circumstances of a particular case, may vitiate the proof beyond reasonable doubt of the case against the accused. See Gachi V. The State (1965) NMLR 333.”Let us look at the circumstances of this case. In Exhibit P1 the appellant stated as follows:
“I am presently a farmer and I reside in Obidigbo village in Aniocha South Local Government Area with my wife. The allegation made against me that I took part in robbing one Chibuogwu Francis is false. In fact on the date of the incident is 26/3/2007 I was in Obidigbo village. I was not at Idumuesah as alleged. I only went to Idumuesah when my uncle came and told my wife to tell me that I should come. Immediately I came, some vigilante members tied my hands and brought me here on the allegation that I robbed one Chibuogwu of his motor cycle.”
In exhibit P2 the appellant stated as follows:
“….I reside at Obidigbo village where I do farm work in Aniocha Local Government Area of the same State…On 26/5/07 at about 6.00 a.m. I left my house with one boy by name Aboy heading for farm. We passed through the bush to the farm. When we returned from the farm at about 2.00 pm of the same day, my wife by name Oluoma told me that my brother by name Okafor came to look for me and as he did not see me, he said that I should come and see him at Idumuesah. I left for Idumuesah to see him. When I got there he told me that Chibuogwu Francis came to tell him that I robbed him of money and motor cycle. From there the vigilante people at Idumuesah came and started beating me. They tied my hands at the back and carried me to Owa-Oyibu Police State.”
PW3 one of the investigating police officers stated under cross examination at Pg. 11 record as follows:
“I said in my statement that I carried out a search in the house of the accused at Obidigbo. The accused told us that at the time of the incident, he was at Obidigbo. He said so in his statement. I did not investigate this fact because I was asked to transfer the case to the State CID.”
PW4 also stated thus –
“I did not investigate to know where the accused was living before the family sent for him…. The alibi of the accused was not investigated.”
The learned trial judge did not give any reason for disbelieving the evidence of DW1 – his wife and DW2 – his boy who the appellant called as witnesses to support his alibi except that the alibi was a farce having been debunked by the evidence of PW1 and PW2.
I think to resolve the alibi of the appellant against him, the evidence of the defence witnesses must have been discredited under cross examination. That was not the case at the trial court. The whole circumstances of this case should have prompted the court to further inquiry. I will come to that anon. The appellant in my view raised his alibi timeously by saying where he was at the time of the day and with whom he was at that time. He was in police custody when he made exhibits P1 and P2. The police had every opportunity when they searched the appellant’s house to question DW1 and DW2 in order to confirm whether the appellant slept at home that night and left for his farm at 6 a.m. and when he came back. Since he was not at any time released by the police he had no time to coach DW1 and DW2 and the police could have obtained correct information from them during investigation. The onus on the appellant is to introduce the evidence of the facts of alibi in his statements to the police at the earliest opportunity. He did so in this case.
In this case, the prosecution put the evidence of PW1 and PW2 to contradict that of the appellant and to debunk the alibi. Let us consider the evidence led by the prosecution to debunk the alibi.
The contention of the appellant is that the evidence of recognition given by the PW1 and 2 was incredible and self-serving. In this case, there is no physical evidence linking the appellant with the offence. The case for the prosecution depended entirely on the correctness of the recognition of the appellant by the PW1 and PW2. Predicated on its acceptance of the evidence by PW1 and PW2 that they identified the appellant as one of the armed robbers, the lower court rejected the appellant’s alibi.
Learned appellants counsel argued that PW1 and PW2 both admitted that it was dark around 5.30 am when the incident occurred and urged this court to hold that the witnesses efforts to change their testimony during cross-examination was a red herring. The appellant’s counsel urged us to disbelieve PW1 and PW2 who said during cross examination that it was not too dark, it was day break, and that they recognized the appellant by the light of their motor cycles which was on. Learned appellant’s counsel argued that the learned trial judge should not have accepted the evidence of PW1 and PW2 as regards the recognition of the appellant due to the prevailing darkness at the time of the incident, coupled with the hurry-scurry by both witnesses to save their lives. He also submitted that in view of the fact that it was dark at 5.30 am early in the morning and the expected state of hurry-scurry on the part of PW1 and PW2, who claimed that they were violently halted and set upon by the armed robbers, it was an error for the lower court to accept their leaky evidence as unequivocal and incontrovertible. Learned appellant’s counsel cited the following cases:
(1) Ndidi v. The State (2007) 13 NWLR pt. 1052 pg. 633 at 653;
(2) Hausa v. The State (1994) 6 NWLR pt. 350 pg. 281 at pg. 302;
(3) Onuoha v. The State (1998) 5 NWLR pt. 549 pg. 118 at 135;
(4) Wakala v. State (1991) 8 NWLR Pt. 211 Pg. 552.
On the other hand, learned Respondent’s counsel argued that there is undisputed evidence on record on which the learned trial judge based the finding that the appellant was one of the three robbers that robbed the PW1 and PW2 of their motorcycle on 26th day of April 2007. The PW1 and PW2 gave oral evidence in court that they knew the appellant before the robbery took place and that they saw the accused person with the aid of the motorcycle light holding an axe.
Counsel further argued that in this case the evidence before the court is that of recognition, the PW1 and PW2 having known the appellant before the robbery incident. The evidence of the PW1 and PW2 on the issue of identification /recognition was unshaken under cross examination. He cited the following cases:
(1) Aigbanbee v. The State (1998) 1 ACLR 168 at 215;
(2) Offorlette v. The State (2000) 80 LRCN 2570 at 2590;
(3) Okosi v. The State (1993) 1 ACLR Pg. 281 at 305.
On this point of fact, the learned trial judge held as follows at Pg. 28-29 of the records:
“On whether the accused person took part in the armed robbery it is clear from the evidence of the PW1 and PW2 that the accused was among those who attacked the PW1 and PW2 and dispossessed the PW2 of the motor cycle she was riding on. These witnesses are very firm and unshaken in their testimony in court. PW1 and PW2 are sure of the person they saw. The accused person was therefore properly identified as one of the persons who took part in the robbery.”
I agree with learned appellant’s counsel that where the identity of an accused person is in issue, a trial court must be careful to examine the evidence of recognition carefully to detect whether there are any weaknesses capable of diminishing the strength and veracity of the prosecution’s witness’s evidence.
In Ndidi v. State (supra) Pg. 651-652, of the NWLR, His Lordship, Aderemi JSC stated at page 651 para. G-H as follows:
“To ascribe any value to the evidence of an eye-witness re-identification of a criminal, the courts in guarding against the case of mistaken identity must meticulously consider the following issues:
(1) circumstances in which the eye-witness saw the suspect or defendant,
(2) the length of time the witness saw the subject or defendant,
(3) the lighting conditions,
(4) the opportunity of close observation,
(5) the previous contacts between the two parties.”Let us look at the evidence on oath of PW1. He said inter alia at Pg. 4 of the record.
On 26/5/07, in the morning at about 5.50 am, I left home with my wife on two motorcycles on our way to Ute-Owerre to harvest palm fruits. As we were going, a motor cycle passed with the rider and two others on it. This was along Ute-Alohen Road. The road is not completely motorable. There is a diversion on the road. The said motor cycle which rode passed us with three persons on it got into the diversion before us. As we got into the diversion which is the only way to get out to the main road, we were stopped by the accused person. As he stopped me and shouted that if I refuse to stop he will shoot. With the aids of the light on the motor cycle on which I was riding I was able to see that the accused person was holding an axe. I then fell down with the motor cycle I was riding. I struggled to switch off the motor cycle I was riding on. My wife who was riding on another motor cycle rode passed me by a palm plantation. In an attempt to save motor cycle my wife was riding on, I was attacked. On riding passed me, my wife was attacked and in an attempt to save the byke I was attacked. The accused person and two others pushed my wife from the motor cycle. It was at this stage that I got to the point where my wife fell and I was attacked with axe and cutlass. After several cuts I was led to another part of the bush and took away the motor cycle my wife was riding on.”
PW2 stated on oath as follows on pg. 7 of the record.
“We got to a bad point of the road. It was the accused and two other persons who were on the motorcycle that rode passed us. My husband was riding in front of me. When we got to a point the accused person and two others jumped out of the bush. The accused was holding an axe. He then said “bail up or I shoot”. I almost hit a palm tree on the road. I then avoided the palm tree and rode forward. The accused and the others started pursuing me. They met me and pushed me and I fell into the bush. At that time my husband had locked his motor cycle. They ask me to give them money. I told them I don’t have money and that we were going to the farm. The three persons including the accused started beating my husband. I stood there and was looking at them. They used the axe to cut my husband all over his body. My husband was trying to get to where I was when they met him and started beating him. One of them then took the Lifan motor cycle which I was riding, and took one of them with him and the third person took their motor cycle and they rode away.”
It is clear, at least to me, that both witnesses were in such an alarmed state of mind and the circumstances of the attack on them were such that any recognition of any person in these circumstances must be taken with extreme caution. Such is the type of circumstance aptly described by Tobi, JCA (as he then was) in Onuoha v. The State supra. His Lordship described such situation as follows:
“There are instances when a court of law may not accept the evidence of a witness who said that he saw the accused person committing the offence. One such instance is where there is darkness or poor light to the extent that a human being with the best eye sight will not be able to identify the accused. Another instance is where in the situation or circumstance of hurry-scurry on the part of the witness to save life it becomes humanly impossible to properly identify the accused in the act of committing the offence.”
I agree with learned appellant’s counsel that the hurry-scurry into which PW1 and PW2 were thrown in trying to save their lives and the time and length of the attack has created a great doubt in my mind that they were actually able to recognize the appellant among the robbers in the circumstances of this case.
Learned appellant’s counsel drew our attention to very strong evidence in favour of the appellant. It was amplified on Pg.26 at paragraph 6.4 of the appellant’s brief. Appellant’s counsel argued that exhibit P3, the motorcycle which the appellant allegedly snatched from PW2 was recovered by the police from some other robbery suspects to whom the appellant had no link. He pointed out that this evidence came from no other person than PW4, a DSP who headed the investigation team from the State CID to whom PW3 handed over investigation of the case. PW4 stated in his testimony that there was another case of armed robbery that occurred at Owa Alero in June 2007 and three motor cycles were recovered from the armed robbers before the case was transferred to State CID, Asaba. PW4 further said that PW1 and PW2 came to Asaba State CID and identified one of the motor cycles as their own. PW4 testified that the suspects from whom the stolen motor cycles were recovered were arraigned at the Magistrates’ Court at Owa Oyibu. PW4 testified that after proper investigation by the police, they discovered that there was no link between the appellant and the accused persons in the Otolokpo robbery.
Learned appellant’s counsel urged this court to consider the evidence of the recovery of exhibit P3 from some other robbers unconnected to the appellants and to marry this with the assertion of the appellant on oath that PW1 and this uncle Okafor who entrapped him into being arrested for the robbery were in-laws. He argued that uncontradicted evidence by the appellant during the trial was that he had previous quarrels with his uncle Okafor over his late father’s property. He left his home town because of the quarrel. Okafor is married to the sister of PW2 who is the wife of PW1. Learned appellant’s counsel urged the court to believe the evidence of the appellant regarding his alibi as against the identification of the appellant since the evidence of the recognition was unreliable.
Learned Respondent’s counsel in his brief did not proffer any arguments in relation to the evidence of PW3 and PW4 with regard to the recovery of Exhibit P3 the motorcycle that was stolen during the robbery.
I find it particularly poignant that the learned trial judge did not think that the evidence of PW4 which showed that after proper investigation by the police, there was no connection between the appellant and the set of accused persons from whom exhibit P3 was recovered should have raised some doubt. Such a piece of vital evidence surely should have cast some doubt on the mind of any impartial arbiter to examine the whole circumstances more carefully. Let us assume that the appellant participated in the robbery early in the morning and he was arrested the same afternoon with no trace of the motorcycle on him or his home. The record shows that the appellant denied the charge immediately and offered an alibi without having the opportunity to coach his witnesses. If we believe PW1 that the incident happened quickly before day break at 5.30 am on the way to their farm. We have no reason to disbelieve the evidence of PW4 who said that the motorcycle was recovered from another set of robbers who had no link with the appellant and who were standing trial in another court for a similar offence. These are facts that cannot be ignored. I have to resolve that there was reasonable doubt as regards the guilt of the appellant.
It is my humble view that there was enough evidence to raise doubts in the mind of any fair minded judge as to the guilt of the appellant. Any reasonable doubt must be resolved in favour of the appellant. Justice was not at all served by the conviction of the appellant. The evidence of PW1 and PW2 must be weighed alongside other evidence in favour of the appellant. With the greatest respect, the learned trial judge did not do this. I must agree with the learned appellant’s counsel that the finding of the trial court that the prosecution proved its case beyond reasonable doubt is not borne out by the evidence on record and I must reverse same. The judgment and orders of the trial judge in charge No. HCY/7C/08 delivered on 5th August, 2009 convicting the appellant and sentencing him to 25 years imprisonment with hard labour is hereby set aside. Instead, an order of discharge and acquittal is hereby made. Appeal Allowed.
SIDI DAUDA BAGE J.C.A: I read in draft the lead Judgment of my learned brother, Hon. Justice H.M. Ogunwumiju JCA. I am in complete agreement with all the reasonings and the conclusion reached by the Judgment. I also allow this appeal. The Judgment and orders of the trial Judge in Charge No. HCY/7C/08 delivered on 5th August, 2007 convicting the Appellant and sentencing him to 25 years imprisonment with hard labour is also set aside by me.
TOM SHAIBU YAKUBU, J.C.A: I was privileged to have read before now, the draft of the judgment of this court, just delivered my Lord, HELEN M. OGUNWUMIJU, JCA, who dealt exhaustively and extensively with all the issues thrown up in the appeal. I must confess that the judgment is so educative both for the prosecution and defence that I believe it will guide legal practitioners who are engaged in the prosecution and defence of accused persons in criminal trials. And even trial Judges too!
I was tempted to add some few words, of my own, but I found that my Lord did not leave any space for me to do so. Hence, I am in total agreement with the very lucid reasoning, analysis and conclusion reached that, this appeal is not lacking in merits.
I too allow it and set aside the judgment of Ogisi, J., of the Delta State High Court, delivered at Owa Oyibu on 5th August, 2009 and in its place I, order that the appellant is discharged and acquitted.
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Appearances
Ekeme Ohwovoriole Esq.For Appellant
AND
Enenmo O.F., Deputy Director, Delta StateFor Respondent
