AWOYEMI TUNJI v. THE STATE
(2013)LCN/6600(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/AK/70C/2011
RATIO
CONDITIONS TO BE SATISFIED FOR THE DEFENCE OF ALIBI TO SUCCEED
A defence of alibi must be unequivocal and must be raised early during investigation of the allegation against the accused person and not during the trial. This will enable the prosecution investigate the truth of alibi, and call evidence, if necessary in rebuttal. Furthermore, a mere allegation by an accused, that he was not at the scene of the crime as in the instant case is not enough.
For the defence of alibi to succeed, the accused must give some explanation of where he was and the persons who knew of his presence at that other place at the time of the commission of the offence in question. In the instant case, the appellant only provided particulars of those who saw him in his shop during the trial, but there was no evidence in support as to exactly where he was, with whom and what he was doing at the material time. Clearly, merely saying he was elsewhere was not enough. See: Sowemimo v. State (2001) 36 NRN 52, Adio v. State (1986) 3 NWLR (Pt.31) 714, Adedeji v. State (1971) 1 All NLR 75, Kabiru v. A-G Ogun State (2009) 5 NWLR (Pt. 1134) 209 at 230 – 231. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER AN IDENTIFICATION PARADE MAY BE CONDUCTED WHERE THE PROSECUTION WITNESS HAS KNOWLEDGE OF THE ACCUSED PERSON
It is trite law that where the prosecution witness has knowledge of the accused person, an identification parade is not necessary.
See Archibong v. State (2004) 1 NWLR(Pt. 855) 488. Adesina & 1 or. v. The State (2012) 14 NWLR (Pt.1321) 429 at 451. This is because identification parade is not a sine qua non to conviction Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439, Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Ibrahim v. State (1991) 4 NWLR (pt.186) 399, Ibe v. State (1992) 5 NWLR (Pt.244) 642; Jimoh v. State (2012) 3 NWLR (Pt.1286) 144 at 173. And, also because the evidence of recognition given by PW2 and PW4 is more reliable than identification of a stranger. Abdullahi v. State (2008) 17 NWLR (Pt.1115) 203 at 216. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WORDS AND PHRASES: “TAINTED WITNESS”
A victim of an offence without more cannot be regarded as a “tainted witness” The term “tainted witness” does not appear in the Evidence Act or any other Nigerian Act. It is not even clear if, this is an intermediate stage between an accomplice and a non-accomplice, but the term has been used by the Supreme Court in the famous 1963 “treasonable felony” trials, that is the case of R. v. Michael Adedapo Omisade & Ors. 1964 N.M.L.R 67. (1964) 1 All N.L.R.233. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
AWOYEMI TUNJI Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of I. O. Adeleke J. of the High court of Osun State, delivered at Ila-Orangun on 30/6/2008.
The Appellant was arraigned by an information dated 5/11/2007 on a two count charge of attempt to commit rape and attempt to commit murder contrary to Section 359 and Section 320 respectively of the Criminal Code laws of Osun State.
The case for the prosecution was that the appellant, an electrician and a known friend of the PW1, the husband of the complainant went to the complainant’s house in the morning of 1st March 2007 at about 10a.m. ostensibly to effect some electrical repairs. The complainant (PW2) spotted the Appellant from the louvre window and let him in into the house. He ordered the complainant into her bedroom and demanded for sex. On refusal, he drew out a matchet which he hid under his native wear ‘Jamalia’ and matcheted the complainant severely and severally on various parts of her body. The PW1 was alerted while in his shop and met her wife in a pool of blood. She was rushed to a local hospital in an unconscious state and later transferred to the Seventh day Adventist Hospital Ile-Ife because of her critical clinical condition and also for neuro surgical treatment. The complainant narrated her story to PW1 and PW3 the moment she regained consciousness and later made a statement to the Police stating that it was the Appellant that caused severe injuries to her body.
The Appellant denied the story of the attack, and set up an alibi that at about 8.00a.m. on the day of the incident, he was at his shop near the shop of the PW1. That, PW1 called him for some electrical work in his house and he explained that, that would be possible for him to do when N.E.P.A. brings light. That he checked PW1 at about 12 noon on that day, but he met his (PW1’s) shop locked. Later, he had the story of what happened to the complainant and joined other sympathizers to commiserate with the PW1’s family while the complainant was in the hospital.
The prosecution called eight (8) witnesses and tendered eight exhibits including the blood stained cloth of the victim complainant and a dark glasses which the complainant claimed was worn on that day by the Appellant but which the Appellant denied.
The Appellant gave evidence in his own defence but did not call any witness. At the end of the trial, the Learned Trial Judge acquitted discharged the Appellant on the count of attempt to commit rape, convicted him of the offence of attempt to commit murder and imposed a life sentence. Aggrieved with the judgment, the Appellant filed an appeal containing four (4) grounds of appeal before this court on 7/2/2011.
Appellants brief of argument dated 18/8/2011 was filed on the same day. Respondents brief of argument dated 14/10/11 was also filed on the same day.
Learned counsel for the Appellants nominated two (2) issues for determination. They are:
(1) Whether the offence of attempt to commit murder was proved against the appellant beyond reasonable doubts. (Grounds 1, 2 and 3)
(2) Whether the prosecution’s evidence of identification of the appellant felt short of acceptable standard (Ground 4).
Learned counsel for the Respondent adopted the issues formulated for the Appellant.
On Issue No.1, counsel submitted that the prosecution has failed to prove the offence of attempt to commit murder beyond reasonable doubt. Counsel referred to the provision of section 320 (1) of the criminal code. Laws of Osun State and observed that the ingredients required to prove the offence are (i) attempt to kill and (ii) in an unlawful manner.
He argued that on the 1st ingredient of attempt, the act that will amount to an attempt is one that must be immediately connected with the possible commission of the substantive offence (murder). There must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence. In other words, when a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
On this, counsel referred to the provision of Section 4 of the criminal code, Cap 34 Vol. II Laws of Osun State 2002 and also to Fakayode, E. O. The Criminal Code Companion (1977) page 20.
He contended that any overt act immediately connected with the commission of an offence, and forming part of a series of acts which, if not interrupted or frustrated would end in the commission of the actual offence is, if done with a guilty intent, an attempt to commit the offence. Counsel referred to Halsbury’s Laws of England, 3rd Edition page 307, paragraph 567 and furthered that the head note in the case of Jones V. Brooks and Brooks (1968) 52 Cr. App. R. 614 reads.
“Where the act alleged to constitute an attempt to commit a crime is equivocal, evidence of intention of the defendant is relevant in order to establish towards what object the act was directed. Once the intention of the defendant has been proved, it still remains for the prosecution to prove that the act itself was sufficiently proximate to amount to an attempt to commit the intended crime. It should be noted that both the actus reus (acts) and mens rea {intention} are the most important ingredients of the offence of attempt. Each must first be considered separately and then both considered conjointly to determine whether an attempt has been committed.”
Learned counsel submitted that the circumstances of the instant case do not satisfy the conditions enunciated above, Counsel submitted further that the second ingredient under Section 320 (1) of the criminal code is that the attempt to kill was done in an unlawful manner, that is, outside the order or a decree of a Court of Law.
He submitted that the evidence of PW2 (the victim) whom the learned trial Judge called “the star prosecution witness” and “the identifier” of the appellant can not be believed and therefore the learned trial Judge should have taken it with a pitch of salt because, for one, she is a tainted witness being the victim of the alleged crime. And, for another, PW5 (Dr. Ekomaye) who was the Medical Doctor to first attend to PW2 after the incident said PW2 was brought to his clinic unconscious. On the question of the PW2 (the victim) being a tainted witness, counsel referred to the case of The State V. Dominic Okolo & Ors. (1974) 4 U.I.L.R (Pt.IV) 573 at 586.
PW5, said counsel, testified that upon examination, when PW2 was brought to his Clinic that she had collapsed cardio vascular blood Pulse unrecoverable which took over 4 (four) hours to resuscitate and also that she was transferred to a Teaching Hospital at Ile-Ife, because “she (PW2) required neurosurgical operation” hence, the account of the incident to the Police after her resuscitation must be considered incredible and unbelievable and therefore should not have attached any weight. Counsel submitted further that evidence of PW4 who alleged that he saw the Appellant around the victim’s house around 10.00 am on 1 – 3 – 2007 but that he did not discuss anything with the appellant did not prove anything against the Appellant and should not have been accorded undue credibility. Also, that, exhibits A, B, E, F1 – F5 and H which the learned trial Judge said “shows clearly that he intend (sic) to kill but ended up in inflicting grievous bodily harm” did not establish anything against the Appellant as none of them was conclusively linked with the Appellant.
Counsel submitted that the learned trial judge misconceived the nature of the intent required in a count of attempted murder that the prosecution failed to prove the necessary intent to kill the victim by the Appellant. There was no evidence of prior animosity or nor prior love advances from the Appellant to the victim. He said, the learned trial Judge failed to realize that an intention to cause grievous harm, though sufficient to sustain a conviction for murder if death results, is not sufficient to sustain a conviction for attempted murder as in the instant case.
He referred to the cases of R. v. Albert (1960) WRNLR 31 Queen V. Nwaugougwu (1962) 1 All NLR 294 and urged that the issue be resolved in favour of the Appellant.
Learned counsel for the Respondent submitted that the totality of evidence adduced at the trial showed clearly that attempt was made to murder the victim Modinat Olatunji and that the attempt was made by no other person but the appellant. He also referred to the provision of Section 320 (a)(i) of the criminal code Cap. 34 Laws of Osun State 2003 and Section 4 of the same enactment. Counsel submitted that there are three elements required under Section 4 of the Criminal Code to show that a person attempted an act. They are:
(i) That the accused has begun to put his intention into execution by means adopted to its fulfillment.
(ii) That he had not fulfilled his intention to such an extent as to commit the office.
(iii) That his intention is made manifest by some over act.
He referred to the case of STATE V. OBOH (2005) 4 ACLR 602 at 622 and 623.
Respondents counsel submitted that the appellant was fixed at the scene through the evidence of PW2 (the victim) as well as PW4 who said he was in the area at the material time.
Also, that, evidence of PW 5 and PW 6 were to the effect that the victim was cut so deep and so severe, with multiple injury which “I believe was inflicted with a matchet” (PW5).
Counsel submitted that it can be conveniently deduced that the assailant had begun to put his intention into execution to an extent as to commit the offence and that his intention to kill was made manifest by the effect of the cut as described by PW 5 and PW 6.
Counsel argued that the above scenario satisfied the requirement in the case JONES V. BROOKS and BROOKS (1968) 52 C. APP. R. 614 to the effect inter alia that “——-evidence of intention of the defendant is relevant —— that the act itself was sufficiently proximate to amount to commit crime.” Furthermore, said counsel, as regards the veracity of the evidence of the victim, PW2 testified that she knew the Appellant as a friend of her husband for a long time. Second, that she saw him through the glass before she opened the door. Counsel submitted that, the court acted correctly to have accepted these clear testimonies of the victim (PW2). Counsel added that there is no law that says that a victim of offence without more is a tainted witness. He referred to the case of Omotola v. State (2009) 3 SCM 127 at pages 147-148, where the Court said “Blood relationship with victim of crime may constitute additional incentive to come forward to testify and can not be regarded as basis to describe their evidence as untrue.” The above, counsel said applies to relative of victim who was an eye witness, how much more the victim herself.
Respondent’s counsel submitted that the authority of State v. Doninic Okolo & Ors. (1974) all NLR 421 at 426 – 428, (1974) 4 UILR (Pt.IV) at 586 referred to by the learned counsel for the Appellant is distinguishable from the present case in the following ways:
(a) the victim’s evidence in that case was discredited in the course of cross examination.
(b) the other witness in the Okolo’s case (5th witness) Ibrahim Oladejo 5th PW was an accomplice whose testimony requires corroboration (though not a rule of law).
That, in the instant case, PW2 was not an accomplice but a victim unlike PW5 in Okolo’s case. Furthermore, PW4 whose evidence corroborated PW2 in the instant case was not discredited in anyway and he successfully fixed the Appellant at the scene.
On the gravity of harm which constitutes attempted murder, learned counsel said that legal authorities abound which show that intent to kill can be ascertained or inferred from the nature of instrument used and the area inflicted. He referred to the cases of State v. Usman (2007) 4 ACLR 34 at 68 and Ehiot v. State (1993) 4 NWLR (Pt. 290) 633 at 644.
He argued that the instrument used in this case is matchet and the areas inflicted are all over her body including (scalp, mouth, and shoulder) with as further revealed by Exhibit B, with fractured left temporal bone, she became unconscious.
Learned counsel for the Respondent submitted further that in line with the requirement of cases such as R. v. Albelt (1960) WRNLR 31, (1960) SCNLR 149 at 15O and Queen V. Nwanguagwu & Anor, (1962) All NLR 292 at 296, the intent to kill was proved in the instant case.
Counsel submitted that at page 72 of the record, the Learned Trial Judge adverted his mind to the issue of intention and held that the Appellant had intention to kill. Furthermore, that in R. v. Albelt (Supra), the Court held that even where the Court failed to advert his mind to intention but the fact which the judge found proved were consistent with the intent to kill and that it the Judge had directed him properly would have found the intent proved —–” that, no miscarriage of justice had occurred and the Court refused to allow the appeal.
In deciding Appellant’s Issue No.1, I do not have any doubts that the prosecution successfully proved the offence of attempted murder against the Appellant. The necessary intention or the mens rea of the offence of attempted murder could be seen from the severity of the damage incurred on the victim – PW2. As the saying goes “even the devil does not know the intent of man.”
In all cases that require intent, intention can always as a matter of evidence be inferred from the circumstances of the case. This is so in law, even in the offence of attempted murder that is confined to an intention to kill. See R. V. Whybrow (1951) Cr. App. Rep. 141.
In the instant case, the evidence of PW5 and PW6 show clearly that the Appellant intended nothing else but to kill PW2.
At page 26 of the record of appeal, Dr. Henry Ekomaye – PWs witnessed extensively as follows:
“—– On the 1st March 2007, at about 11am, a woman Mrs. Olatunji was brought to J – nissi, Araromi Ila Orangun. She was said to have been attacked by unknown person or persons, with multiple injury on her body which I belief was inflicted on her with a matchet. She was unconscious when she was brought in but she was still alive.
After a quick assessment of the woman, we commenced, on a very rigorous resuscitation. She was given 3 paints of blood, 4 litres of fluid and other necessary drugs. The injury were extensive and it took about 4 hours in repairing the injury. She was transferred to the ward for stablization.
On the 2nd of March, we started making effort to move her out to a teaching hospital in Ife. She had several cuts on her body———–
The level of her conscious (sic) was improving when she was transferred but was till unconscios—-”
PW5 tendered his Medical report which was admitted as Exhibit ‘A’. PW6, Dr. Jason Lohr corroborated the evidence of PW5 on the gravity and severity of the injuries inflicted on PW2, circumstances which made it clear to the learned trial Judge that the Appellant intended to kill his victim (PW2).
At pages 27 – 28 of the record, PW 6 witnessed as follows:
“I am Dr. Jason Lohr of the 7th Day Adventist Hospital Ile-Ife. I am a Medical Doctor at the hospital. I know Adebanji. He was in the hospital working as a physician in training for 2 years. I remember 3rd March, 2007, The hospital was on strike at Osogbo. The patient was brought to us in Ife from Ila, Dr. Adebanji attended to her she had multiple laceration on her face, shoulder etc. she was very restless we learned that she had been at Ila for 2 days that she had received transfusion of blood before being brought to our own hospital.
The wounds were deep and very severe and she was still in a critical condition we dressed the wounds. She received another transfusion of blood in our own hospital. She was placed on antibiotics. After 5 days in the hospital, she begins to show clinical improvement. She was able to answer question. After a total of 10 days in the hospital, she was discharged home —”
The medical report written by Dr. Adebanji was also tendered by PW6 as Exhibit ‘B’.
Just as the evidence of PW5 and PW6 demonstrated the extent of the wound and injury inflicted on PW2, thus confirming the Appellant’s intention to kill, the evidence of PW2 demonstrated the physical act of the
infliction of several matchet cuts on her body. This represents the actus reus of the offence of attempted murder and in the words of Section 4 of the Criminal Code brought out the manifestations of the Appellant’s intention by overt acts.
The evidence of PW2 is contained at pages 19 to 20 of the record. Listen to the victim, PW2.
“My name is Olatunji Modinat. I live at Takiti Araromi Area Ila Orangun. I am a trader. I know the accused person. We used to give him electrical job to do. I remember 1-3-2007. He came to our house around 10.00a.m. I head (sic) heard a knock on the door. I look through louver blades and recognized Tunji the electrician. He is also known as TISMA. I can recognize him. He is the one standing in the door. I opened the door for him. He said that he came to effect the repair of electrical fault.
Surprisingly, he said I should move to my bedroom. He threatened to kill me if I refused to follow him to my bedroom. I did not know that he had a cutlass hiding under the Jalamia which he wore. He gave me the first cut on my shoulder and the second on my arm, the third on my hand, that was the last I knew when he started to injure me on my head. He started to inflict injury on my body because I rejected his request to have sex with me. I cried for help but nobody was available to assist. I later woke up in the seventh day hospital Ife. I did not know how I got there. I explained what happened to my husband and Mrs. Adefarakan. The Police also took my statement—-”
The above unchallenged testimony of PW2 demonstrates clearly and beyond doubt that the act alleged to constitute attempted murder in the instant case is unequivocal and therefore contrary to the suggestion of the learned counsel for the Appellants satisfied the requirements expressed in the English case of Jones V. Brook and Brooks (Supra) Also, it is my considered opinion that the learned counsel for the Respondent has given an adequate reply to the misconceived attempt by learned counsel for the Appellant to label the victim as a “tainted witness” and has ably distinguished the facts and circumstances of the decision in The State v. Dominic Okolo so relied upon by the Appellant’s counsel from the facts and circumstances of the present case.
A victim of an offence without more cannot be regarded as a “tainted witness” The term “tainted witness” does not appear in the Evidence Act or any other Nigerian Act. It is not even clear if, this is an intermediate stage between an accomplice and a non-accomplice, but the term has been used by the Supreme Court in the famous 1963 “treasonable felony” trials, that is the case of R. v. Michael Adedapo Omisade & Ors. 1964 N.M.L.R 67. (1964) 1 All N.L.R.233.
In that case, A, B, C and others conspired together to commit treason; D was invited into meetings of the conspirators which were ostensibly for innocent purposes at first but in which, subsequently, plans towards the conspiracy were, discussed. D attended such meetings for some time before withdrawing from attending further meetings. He swore not to say anything about it to the Police and in fact did not make a report for almost a year
A full bench of the Supreme court (at that time) consisting of five Justices held that the witness was not an accomplice whose evidence required corroboration. Dissenting on this point, Mbanefo Ag. J.S.C. (Chief Justice of Eastern Nigeria) was of the view that he was an accomplice or at least a “tainted witness” as has been suggested by one of the counsel for the defence. He said that “even if (the witness) could not be regarded as an accomplice in the strict sense (although I am of the opinion that he is) he is one on whose evidence it would be unsafe to act without corroboration” (ibid at 99). See also, Ema Agwu v. The State (1988) 4 NWLR 90 at 102. In the instant case, PW2 is a victim eye witness to the act of the Appellant, she is by no stretch of imagination a “tainted witness” a fortiori, her evidence does not require any caution as suggested by the learned counsel for the Appellant.
The ingredients of the offence of attempted murder were fully established in this case with the evidence of PW2, PW5 and PW6.
Issue No. 1 is resolved against the Appellant.
On Issue No. 2, Learned counsel for the Appellant submitted that the evidence of the prosecution witnesses upon which the identification of the Appellant was hinged fell far short of the acceptable standard and thus occasioned a miscarriage of justice.
First, because, according to counsel, the totality of the prosecutions evidence [PW2 and PW4] relied upon by the Learned Trial Judge was too vague, uncertain and improbable and therefore cannot ground a conviction for the offence charged.
He referred to the case of Ibrahim v. The State (1995) 3 NWLR (Pt.391) 35.
Secondly, that the totality of the evidence against the Appellant was too suspicious and therefore fell below acceptable level.
He referred to Lord Widgary C.J. in R. V. Tunbull (1976) 3 WLR 445 at 447 and the case of Abudu v. The State (1985) 1 NWLR (Pt.1) 55 at 52.
Thirdly, that PW2 who is the victim is an interested party and therefore a tainted witness, fourthly, that it is apparent on record that the learned trial Judge never treated PW2 as a witness with a purpose of her own to serve and failed to warn himself of the danger of acting on PW2’s uncorroborated evidence. Counsel added that the evidence of PW4 was basically suspicious (sic) and even at that, a weak one and suspicion however strong cannot take the place of strict legal proof.
He referred to the case of Abieke v. The state (1998) 1 ACLR 635 at page 641. Learned counsel submitted that since the case against the appellant depended wholly or substantially on the correctness of the identification which the Appellant alleged to be mistaken, the learned trial Judge ought to have warned himself on the special regard for caution before convicting the Appellant. Counsel added that since the sole defence of the Appellant was an alibi, it behoved the learned trial Judge to have taken great care in relying on his purported identification based on the evidence of the duo, of a tainted witness (PW2) and an evidence based solely on suspicion (PW4), thus making the so – called identification to have fallen below the accepted standard. –
Furthermore, said counsel, since the Appellant unequivocally raised the issue of alibi that is, that he was somewhere else other than the locus delicti at the time of the commission of the offence for which he was charged and gave facts and circumstances of his where about which the prosecution was not able to rebut on record, the prosecution’s case has been vitiated and cannot be said to have been proved beyond reasonable doubt.
After referring to the case of Okosi v. The State (1998) 1 ACLR 281 at 298, he added that there is no burden placed on the accused (appellant) to prove his alibi once he has given particulars of his whereabouts clearly.
Learned counsel for the Respondent on the other submitted that identification is not in contention in this case. That PW2 said in evidence that she knows the appellant as their electrician, that, when he (appellant) knocked their door by 10. A.m. on 1-3-2007 she looked through the louvre blades and recognized him before she opened the door for him and the appellant attacked her with cutlass. There is no problem of identification, he said. Counsel for the Respondent, submitted that the case of Abudu v. State (Supra) relied on by the learned counsel for the Appellant is distinguishable. First, that the PW2, mentioned the appellant immediately she recovered and could speak to her husband, sister and the Investigation Police Officer. But, that in Abudu’s case (Supra) the victim PW1 did not mention the name of the appellant timeously, also, her evidence contradicted that of DW3 another witness in the case.
Counsel referred to the case of Ikemson v. State (1998) 1 ACLR 104 where the Court said inter alia.
“—-where the witness first acquaintance with the accused is during the commission of the offence, there an identification parade may be held.”
In the present case, said counsel both PW2 and PW4 knew the appellant before the incident, and therefore, there was no problem of identity. Counsel submitted further that the alibi raised by the appellant in his statement to the police is not sufficient as he did not provide particulars of people that were with him in the shop to establish the alibi. That, the appellant raised the issue at the trial but also failed to corroborate his alibi.
Learned counsel referred to the case of Ozaki v. State (1998) 1 ACLR 47 where the Court said “to raise defence of alibi accused must give particulars of his where about at the particular time.”
He submitted that the evidence of PW2 who knew the appellant very well fixed the appellant to the scene of crime and thereby demolished the alibi.
On this, counsel referred again to the case of Ozaki V. State (Supra) at page 49 that the rule that alibi must be investigated is therefore inapplicable in the face of evidence of two witnesses.
Respondents counsel added that the evidence of PW4, who was an independent witness also fixed the appellant to the area of the scene of crime at the material time, that is 10.00 a.m. on 1 – 3 – 2007, this piece of evidence, said counsel, corroborated that of PW2 and demolished the appellant’s alibi. Counsel referred to the cases of Adele V. State (2001) 2 ACLR 441 and Okoduwa v. State (1998) 1 ACLR 338 and said that the prosecution has disproved the defence of alibi raised by the appellant. In deciding appellant’s Issue No. 2, I had already given an answer to the misconceived idea of the learned counsel to the appellant that PW2 is a “tainted witness” in my treatment of Issue No. 1. I would say no more on that point. The appellant claimed to have raised a defence of alibi, but at the earliest possible opportunity in his statement to the police, he failed to give the particulars of his whereabout or to mention those who were with him at that time.
A defence of alibi must be unequivocal and must be raised early during investigation of the allegation against the accused person and not during the trial. This will enable the prosecution investigate the truth of alibi, and call evidence, if necessary in rebuttal. Furthermore, a mere allegation by an accused, that he was not at the scene of the crime as in the instant case is not enough.
For the defence of alibi to succeed, the accused must give some explanation of where he was and the persons who knew of his presence at that other place at the time of the commission of the offence in question. In the instant case, the appellant only provided particulars of those who saw him in his shop during the trial, but there was no evidence in support as to exactly where he was, with whom and what he was doing at the material time. Clearly, merely saying he was elsewhere was not enough. See: Sowemimo v. State (2001) 36 NRN 52, Adio v. State (1986) 3 NWLR (Pt.31) 714, Adedeji v. State (1971) 1 All NLR 75, Kabiru v. A-G Ogun State (2009) 5 NWLR (Pt. 1134) 209 at 230 – 231.
Secondly and as pointed out by the learned counsel for the Respondent, there is actually no issue of identification in this case. The evidence of PW 2, is that of an eye witness who recognized the appellant, that in itself was sufficient to demolish any claim of alibi by the appellant. This is apart from the evidence of PW4, an independent witness which also fixes the appellant to the area of the scene of crime almost with mathematical precision.
It is trite law that where the prosecution witness has knowledge of the accused person, an identification parade is not necessary.
See Archibong v. State (2004) 1 NWLR(Pt. 855) 488. Adesina & 1 or. v. The State (2012) 14 NWLR (Pt.1321) 429 at 451. This is because identification parade is not a sine qua non to conviction Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439, Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Ibrahim v. State (1991) 4 NWLR (pt.186) 399, Ibe v. State (1992) 5 NWLR (Pt.244) 642; Jimoh v. State (2012) 3 NWLR (Pt.1286) 144 at 173. And, also because the evidence of recognition given by PW2 and PW4 is more reliable than identification of a stranger. Abdullahi v. State (2008) 17 NWLR (Pt.1115) 203 at 216.
In the instant case, the learned trial Judge acted appropriately to ascribe probative value to the evidence of PW2 and PW4 especially the PW2 who recognized the appellant before and while inflicting matchet cut on her body.
Issue No. 2 is resolved against the appellant.
Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed. The judgment of the learned trial Judge is hereby affirmed.
SOTONYE DENTON WEST, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother Mojeed Adekunle Owoade J.C.A. I agree with all the reasoning and conclusion reached therein
The prosecution successfully proved the offence of attempted murder beyond reasonable doubt. The severity of the injury justified the mens rea of the offence of attempted murder, while the physical act of inflicting several machete cuts on the complainant’s body demonstrate the actus res of the offence of attempted murder.
Identification parade is not necessary where the prosecution witness has prior knowledge of the accused person. See IBE v. STATE (1992) 5 N.W.L.R. (PT.244) 642; IKEMSON v. STATE (1989) 3 N.W.L.R. (PT.110) 455; ARCHIBONG v. STATE (2004) 1 N.W.L.R. (PT.855) 488.
Further, the evidence of P.W.2 and P.W.4 who knew the appellant well before the incident cannot be faulted. The holding of the learned trial judge is unassailable in view of the direct and cogent evidence of the prosecution witnesses. I shall and do affirm the judgment and sentence of life imprisonment imposed on the appellant.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read in draft the lead judgment that has just been delivered by my learned brother OWOADE, JCA and I do agree with him in all his reasoning as well as the conclusion reached.
To my mind the issue of identification comes to play when an accuser is not sure of the identity of the person being accused. If it is a matter of one who is well known to the accuser there is no room for identification parade moreso as in the instant case where the victim has given instances of previous dealings with the accused. She said that they used to give the accused electrical job to do for them. Therefore the day of the commission of the offence was not her first time of coming in contact with the accused. Identity was not an issue in the circumstances of this case. PW2 in her evidence pinned the appellant to the scene of crime which was at the house of the said PW2.
By section 4 of the Criminal Code Law, Cap 34 Laws of Osun State, 2002, three factors are necessary to show that there was an attempted act. They are:
i. That the accused has begun to put his intention into execution by means adapted to its fulfillment;
ii. That he has not fulfilled his intention to such an extent as to commit the offence;
iii. That his intention is made manifest by some overt act.
Part of the evidence of the PW2 (victim of the crime) was that when the accused accosted her in her house that he had a cutlass which he hid in his Jalamia. This piece of evidence was unchallenged. Added to it is the evidence of the PW5 and PW6 to the effect that the injuries on the victim were inflicted by matchet cut all point to the fact that the accused had started to execute his dastard intentions save that the victim was saved by divine intervention. Undoubtedly the acts of the accused were sufficiently proximate to give rise to attempted murder. Accused from every indication went to the PW2’s house on the day in question and at the time he did with the ill intention to kill. The prosecution established same beyond reasonable doubt. Accordingly I find the accused guilty of the offence of attempted murder.
The appeal lacks merit and is hereby dismissed.
Appearances
Awoniyi AlabiFor Appellant
AND
Adewale Afolabi Attorney-General Osun State with him are Dr. Anwo (Senior Special Adviser Legal), Tijani Adekilekun (Asst. Chief State Counsel), Apoeso O. A. (Miss) Principal State Counsel and Idayat Alarape State Counsel, Ministry of Justice, Osun StateFor Respondent
