CHIJIOKE UGWU v. THE STATE
(2013)LCN/6677(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of December, 2013
CA/E/364/2008
RATIO
LEGAL EFFECT OF DISCREPANCIES IN THE TESTIMONY OF A WITNESS OR WITNESSES OR OTHER FORMS OF EVIDENCE.
It is also important to briefly restate the law on the legal effect of discrepancies in the testimony of a witness or witnesses or other forms of evidence. Discrepancies in the material evidence do not affect the credibility and probative value of such evidence and cannot vitiate a decision based on such material evidence. See UWAGBOE V. THE STATE (2008) 12 NWLR (PT 1102) 621. As the Supreme Court held in this case per Onnoghen JSC, “a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor differences in detail.” Per EMMANUEL AKOMAYE AGIM, J.C.A.
WHETHER A GROUND OF APPEAL FROM WHICH NO ISSUE IS DISTILLED IS DEEMED ABANDONED
It is trite law that a ground of appeal from which no issue was distilled is deemed abandoned and will be struck out. See NGILARI V. MOTHERCAT LIMITED (1999) 12 SC (PT 11) 1. Per EMMANUEL AKOMAYE AGIM, J.C.A.
WHETHER AN ISSUES FOR DETERMINATION ARE TO BE DERIVED FROM GROUNDS OF APPEAL
It is also trite law that an issue for determination that is not derived from any ground of an appeal is incompetent and is liable to be struck out along with any arguments based on it. See OJE & ANOR V. BABALOLA & ORS (1991) 5 SCNJ 110. Per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA G. MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
CHIJIOKE UGWU (alias Police) – Appellant(s)
AND
THE STATE – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): Clement Ezeazu (alias Finmbar) and Chijioke Ugwu (alias Police) were accused of conspiracy to murder and murder of Christopher Ogbonna, the then Chief Security Officer of University of Nigeria Nsukka. on the 21st July 2003, Criminal proceedings were commenced against them at the High Court of Enugu State in the Nsukka Judicial division by the Attorney General of Enugu State filing an information, charging them with two counts of offences as follows-
STATEMENT OF OFFENCE – COUNT ONE
CONSPIRACY contrary to section 494 of the Criminal code Cap. 36, Vol. 1, Laws of Anambra State of Nigeria 1986, as applicable to Enugu State of Nigeria.
PARTICULARS OF OFFENCE
CLEMENT EZEAZU alias FIMMBBAR and CHIJIOKE UGWU alias POLICE on or about the 26th day of May, 2002, at No. 449, Elias Avenue, University of Nigeria Nsukka, Campus, in the Nsukka Judicial Division conspired to commit a felony – Murder.
STATEMENT OF OFFENCE – COUNT TWO
MURDER contrary to Section 274(1) of the Criminal code Cap.36, Volume 1, Laws of Anambra State of Nigeria, 1986, as applicable to Enugu State of Nigeria.
PARTICULARS OF OFFENCE
CLEMENT EZEAZU alias FIMMBBAR and CHIJIOKE UGWU alias POLICE on or about the 26th day of May, 2002 at No. 449 Elias Avenue, University of Nigeria, Nsukka, Campus, in the Nsukka Judicial Division unlawfully killed CHRISTOPHER OGBONNA.
Following their arraignment, Clement Ezeazu, as first accused, was granted bail pending trial by a vacation Judge of the High Court of Enugu State. He jumped bail and has remained at large. All attempts to rearrest and bring him to court to attend his trial proved abortive. The information had to be amended to delete his name therefrom, leaving Chijioke Ugwu as the only accused that was tried.
The prosecution led evidence through eight witnesses who were cross examined by the defence. The accused testified for himself and called no other witness. The relevant facts established by the evidence are as follows. About 9 pm, the night of 26th May 2002 many men with guns invaded the official residence of the Chief Security Officer of the University of Nigeria Nsukka, Mr. Christopher Ogbonna at No 449 Elias Avenue, University of Nigeria, Nsukka campus. The men held his wife and children hostage, seized some of their monies and properties, raped two of his daughters, shot Mr. Christopher Ogbonna and killed him and escaped from the house. Non of the persons who witnessed the incident could identify these men except PW2, Theresa Ogbonna (wife of the deceased) who fleetingly identified Clement Ezeazu (who is at large) by sight and voice and PW1 who recognized the convict/appellant by sight. When the appellant was arrested by Police officers, he promptly set up a plea of alibi by stating that “On the day the Chief Security Officer was shot, I was off duty in order to treat my pneumonia at one nurse, one Mrs. Felicia Igboji who works in Bishop Shanalran Hospital Nsukka. On that 26th May, 2002 I went to take treatment at about 5.30 p.m and went back to my house after the injection at about 6.30p.m.” In his additional statement, he stated as follows: “I went back in the evening by 5 p.m. and did not go out again. I was returned to my house by 5 p.m. and Felicia gave me the injection. I was with my mother till the following day of 27th May, 2002.”
PW8, Sgt Thomas Ugwu one of the investigating police officers said he visited the houses of Felicia Igboji and that of the mother of the accused to investigate the alibi but did not see any of them. He left a message for them. They did not respond to the message.
At the close of evidence, learned counsel to both sides filed, exchanged and adopted written addresses.
On the 31st of March 2008, the trial court rendered judgment convicting the accused of the two counts of conspiracy to murder and murder, sentencing him to death by hanging.
Dissatisfied with this judgment, the accused commenced this appeal No. CA/E/364/2008 on the same 31st March 2008 by filing a notice of appeal containing three grounds of appeal.
The parties to this appeal have filed, exchanged and adopted their respective briefs of argument as follows- The appellant’s brief of argument and the respondent’s brief of argument.
The appellant’s brief of argument raised the following issues for determination –
1. Whether the court below was not in error when he held that there was no need for an identification parade.
2. Whether the court below was not in error when it relied heavily on the evidence of PW1, in convicting the accused person despite the grave inconsistencies contained therein.
3. Whether the court below did not misdirect itself leading to miscarriage of justice when it held that the Appellant in his alibi did not tell the court what transpired between him and the mother or what he was doing at the material time.
The respondent’s brief of argument adopted the appellant’s issues for determination.
I will determine this appeal on the basis of the issues for determination raised in the appellants brief of argument.
Let me start with the first issue of whether the trial court was right to have held that there was no need for an identification parade.
The part of the judgment of the trial court complained against by this issue states thus – “The first line of defence to be considered by this court is whether lack of identification parade is fatal to the case of the prosecution.
………..In the instant case the PW1 told the court the surrounding circumstances under which he identified the accuse person. He entered their living room which was in darkness, and switched on the light. He saw the accused person standing between their refrigerator and the wall, pointing a gun at him. The accused person began to command him. Both of them were inside the living room which indicates that the PW1’s observation was at a close range. The PW1 also told the court that he had previous contact with the accused person prior to the day of the incident. It seems to me therefore that if this piece of evidence is believed by the court, the issue is no longer that of identification of the accused person by the PW1 but should be that of recognition. I therefore hold that there was no need to perform an identification parade in the instant case. See the case of ALIYU V. STATE (2007) ALL FWLR PART 388, 1123. What is in issue is the credibility of the evidence of the PW1, which the defence is challenging on grounds of contradictions.”
Learned Counsel for the appellant has argued that this case presents an ideal situation that calls for an identification parade because, PW1 merely described the person he saw at the scene of crime and only got to know the appellant’s name after the appellant made a written statement at the police station, PW1 had never been in close contact with the appellant before that fateful day, the appellant was not arrested at the scene of crime, the appellant denied committing the crime and denied being anywhere near or at the scene of crime, the incident took place at night, the lights were put off visibility was therefore impaired that the identification evidence was poor and the PW1 did not say that he pointed out the appellant to the police. Learned Counsel further submitted that “whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused and the defence alleges mistake of identification, the judge should warn the jury on the special regard for caution before convicting the accused on reliance on the correctness of the identification.”
Learned counsel also submitted that “while conceding that it is not in every criminal case that an identification parade is necessary, it is herein submitted that every case depends on the peculiar facts and circumstances.”
Learned counsel finally urged that this court should hold that the trial court erred in law for holding that there was no need to perform an identification parade.
Learned Counsel for the respondent has argued replicando that the evidence shows that PW1 had known the appellant and seen him on several occasions and different places long before the 26-5-2002, that the evidence showed that when PW1 came face to face with appellant in the sitting room illuminated by the light switched on by PW1, the contact between the two lasted for a reasonably long time at very close range, PW1’s observation of the appellant was not impeded in any way, PW1 recognised the appellant as a person previously known to him and that he told the police that he recognised the appellant. Learned Counsel further replied that recognition is more reliable than identification parade, that the appellant having been recognised by the PW1, there was no need for identification parade and that an identification parade is only necessary where the witness did not know the accused before they met at the scene of crime, where the witness met or encountered the accused for a very short time, where the time and circumstances may not have allowed the witness the opportunity of observing properly the features of the person he saw. Learned Counsel concluded his reply by urging this court to hold that an identification parade was not necessary.
The appellant did not dispute the fact that PW1 had known him and met him severally long before the incident. The PW1 in his examination-in-chief did not elicit evidence to show that he had met the appellant severally long before the incident. His evidence in examination-in-chief only explained how they met face to face that night. He stated that “when I looked inside our sitting room there was no light there. I put on the light and saw somebody standing up between the fridge and the wall. I was surprised. I thought that the person was my younger brother until I noticed that he had a gun. He pointed the gun towards my direction. I thought I was in a dream. It was the accused person that was having the gun and pointing at me.
I recognized him. The accused person asked me to put off the light. I put off the light. He started commanding me to lie down. But I kept standing. At a point I noticed some other people coming out from the kitchen and the bathroom. They were many. I then complied and lay on the floor. I did not know those people that came out. It was only the accused that I know.”
It was the defence that introduced that evidence of prior contact through his cross-examination of PW1. I will reproduce the cross-examination and answers as contained in the record of this appeal for ease of reference. It is as follows-
Cross-Examination of the PW1 by defence Counsel:
Q. For how long did you know the accused person before the incident?
A. I knew him during security exercise at U.N.N. in 2001
Q. What do you mean by security exercise?
A. That was when the university recruited men at Akanu Ibiam Stadium.
Many people went there to watch that they were Ibiam Stadium.
Many people went there to watch what they were doing.
Q. You went there to watch like others?
A. Yes
Q. How many people participated in the exercise?
A. They were many but I did not count them.
Q. Apart from that was there any other security exercise that you witnessed?
A. It was only that.
Q. What other things that you witnessed that day apart from running?
A. It was only running.
Q. Where did you do Primary School?
A. C.P.S Okpuje
Q. What of Secondary School?
A. C.S.S Okpuje
Q. When did you finish secondary school?
A. 1999.
Q. When did you enter U.N.N as a student?
A. 2000.
Q. Where else had you seen the accused apart from the security exercise?
A. I do see him within the school along the road and in the market.
Q. Before the security exercise, which year did you see the accused?
A. I did see him in this town.
Q. Before the security exercise, you saw the accused in the school doing what?
A. I saw him passing.
Put at that time you did not know the name.
A. Yes.
Q. When did you know his name?
A. Immediately he wrote his statement at the police station.
Q. Who pointed at the accused when he was arrested?
A. I described the person I saw and he used to come to a flat in the same building with our own.
Q. Do you know the person he used to visit?
A. I know the family but I do not know the name.
Q. Did you sneak into the house when you returned?
A. I entered like somebody going into his house.
Q. Is your sitting room as wide as this court room?
A. No but it is very wide.
Q. When you put on the light how many people did you see?
A. One person, the accused person.
Q. At what point in time did you see other person other than the accused?
A. I was being commanded to lie down. I was shocked. Other people started coming out from other rooms.
Put after the incidence you made a statement to the police?
A. Yes
Q. Did you make the statement out of your own volition?
A. Yes
Q. Who ordered you to put off the light after putting it on?
A. The accused.
Q. Did you put it off?
A. I complied
Q. You saw some other people coming out of the kitchen after you had put off the light
A. Yes
Q. After the recruitment exercise during which you said that you saw the accused person’s posting, were you aware that he saw finally recruited?
A. Yes
Q. When did you make your first statement to the police after the incident?
A. After some weeks
Q. When was the matter reported to the police?
A. The then D.P.O one Mr. Boniface Onyeabo was in our place that night. I recovered the cartridge after taking my father to hospital and handed it over to the D.P.O. the incident happened on Sundry 26-5-2002. On 27-5-2002 around 11.00 a.m. to 12 noon we heard that Mr. Ezeazu was arrested.”
Put No. person made official report to the police.
A. It was the security department of U.N.N that reported and my father had written to the police that if anything happened to him, Mr. Ezeazu would be held responsible.
Q. From 26-5-2002 till the time you made your statement did you ever tell any person that you saw the accused person and recognized him?
A. Yes I did I told my mother and some of my relatives
Q. Are you aware whether your mother or any of your relatives that you told reported what you told them to the police or security department of U.N.N?
A. I told the police that I recognized the accused person.
Q. Did you tell the police that the person you recognized is working with the security department of U.N.N?
A. Yes I did.
Q. Do you know when the accused was arrested by the police?
A. I just heard it
Q. Do you know where he was arrested?
A. I do not know.
Q. Did you make any effort to get the accused arrested after the incident?
A. Police came and I told them what I saw.
Q. Was that all the effort you made to apprehend the killer of your father?
A. After one week the CIB Enugu invited us. We went there and I was asked so many questions. Many people were also invited to the office.
Q. Was it that day that you were invited that you made statement to the police?
A. I made statement here in Nsukka and made another one at Enugu.
Q. When was that statement at Enugu made?
A. I cannot remember
Q. Did you tell them at Enugu that you saw the accused person and identified him?
A. It was in my first statement that I made here in Nsukka that I told them so.
Q. You described the accused or you told them his name?
A. I told them his name
Q. Did you tell them that he was working at the security department of U.N.N?
A. Yes
Q. When did you set to know the name of the accused person?
A. I got to know his name from the security department but I cannot remember when
Q. Was there any time you father complain against him
A. Are you aware that the accused person is a very close friend of Clement Ezeazu?
A. Yes
Put. You are involving the accused person in this crime because you know he is a very close friend of Clement Ezeazu.
A. I am not involving any person.
Q. How did you notice people coming out from other rooms when the place was dark?
A. I saw them coming out but I did not recognize them.
Q. Which statements do you wants the court to believe. Your statement to the police or your story in court?
A. I believe that they are the same thing.
Q. When the accused was in police custody, was there any time the police brought him out of custody for identification by you?
A. There was no time
Put. You never saw identified the accused person that night.
A. I did.
Q. Was there any time the accused was posted to your father’s compound as a security personnel?
A. Never
Q. Have you ever been to the security department after the incident?
A. Yes.
Q. From the time the accused person was arrested have you been to that department (security)?
A. Yes I did
Q. You never saw the accused or asked of him those times you went there?
A. I did not
Q. Will you be surprised to hear that from the date of the incident that the accused person and been attending to his normal duties until the day he was picked up on 4/6/2002?
A. I do not know.
This evidence of PW1 remained unchallenged and uncontradicted. The appellant did not in any way dispute the facts alleged therein that PW1 had known the appellant and met him several times at several places before the incident and even knew that he was a close friend of Clement Ezeazu, the co-accused that is now at large. It was therefore established by the evidence that the appellant was a person known very well by PW1 before the incident.
The question that arises at this juncture is whether there was reasonable opportunity for the PW1 to have correctly recognized the person he saw pointing a gun at him in their sitting room that night as the appellant or whether it is likely that the PW1 made a mistake in his recognition of that person as the appellant. The relevant circumstance here is that PW1 put on the light in the sitting room, PW1 saw the person standing between the fridge and the wall in the sitting room, PW1 who was surprised, thought that the person was his younger brother until he noticed that the person had a gun, the person then pointed the gun in his direction, he recognised the person as the appellant who now asked him to put off the light and PW1 did. It is beyond argument that the person was pointing the gun at PW1 under the brightness of electricity light. It is also obvious that being in the sitting room of a house both met at a close range. The trial Court had held that the fact that both the accused and PW1 “were inside the living room indicates that PW1’s observation was at a close range.”
There is no ground in this appeal against this inference of the trial court. The legal consequence of this failure to appeal against this inference of fact is that the appellant has accepted it as correct, valid and binding. See
It is therefore glaring that there was reasonable opportunity for the PW1 to have correctly recognised the person pointing the gun at him as the appellant. There is nothing in the record of this appeal suggesting that the ability of PW1 to observe the person and recognize him as a person he had known was impaired in anyway and so it is very unlikely that PW1 was mistaken in his recognition of the person pointing the gun at him as the appellant.
It is obvious from the evidence that following PW1’s encounter with the appellant that night, his mind became firmly fixed upon the appellant as the person he saw. In his extra judicial statement made at Nsukka police station, 10 days after the incident, on 4th June 2002, he said “….. as I was entering I switched the light on and immediately recognised one of the security men working under my father by name Ugwu Chijioke (alias police) and he immediately commanded me to hands down and hands up which I complied and he later asked me to lie down and I did complied. …”. In this kind of situation identification parade is unnecessary as the mind of the witness is already set that the appellant is the person he saw. In SEGUN BALOGUN V. THE ATTORNEY GENERAL OF OGUN STATE (2002) 2 SC (PT. 11) 89, the Supreme Court held per Uwaifo JSC that “Such a parade is absolutely unnecessary when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.” In OLAYINKA AFOLALU V. THE STATE (2010) 16 NWLR (PT 1220) 584 the Supreme court per Adekeye JSC held that identification parade is “only essential in the following circumstances:
1. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
2. where the victim or witness was confronted by the offender for a very short-time and
3. where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.”
In NDUKWE v. THE STATE (2009) 7 NWLR (Pt 1139) 43 the Supreme Court per Ogbuagu JSC held that “an identification parade is not necessary, in circumstances where the victim or witness, recognised the offender or accused person, while matter was still fresh in his/her mind, as the person who committed the crime alleged.” The same Court had held in EYISI V. STATE (2000) 15 NWLR (PT 691) 555 that “where, for instance, the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade.” In OCHIBA V. THE STATE (2011) LPELR 8245 the Supreme Court not only reiterated that an identification parade is unnecessary where the witness has knowledge of the accused person, it also held that recognition in most instances is more reliable than identification parade and if believed can be relied on to convict.
In the light of the foregoing I do not agree with the submission of Learned Counsel for the appellant under issue No. 1. I uphold the decision of the trial court that there was no need for an identification parade in the instant case. I must point out here that issue No. 1 is not derived from any of the grounds of this appeal. There is no ground complaining about the decision of the trial court that there is no need for an identification parade.
Learned Counsel for the appellant in the opening sentence under the first issue of the appellant’s brief stated that “The first issue for determination flows from ground 1 of the grounds of Appeal. I do not think so. Ground 1 states that “The trial court erred in law, when it held thus “the accused person claim in his evidence in court that he does not know why the PW1, decided to identify him after attending a meeting for the burial of the Chief Security Officer the following day is of no moment. He did not raise the issue in his Extra judicial statement to enable the police to investigate same.
PARTICULARS OF ERROR
(a) The trial court is bound to consider the defence raised by the accused person even if not raised in his extra judicial statement.
(b) There is no law that says that an accused person cannot raise a defence if such is not raised in his Extra-judicial statement.
There is nothing in this ground complaining about the decision of the trial court that an identification parade was unnecessary.
I have also noticed that no issue in this appeal has been distilled from the said ground 1 of this appeal. It is trite law that a ground of appeal from which no issue was distilled is deemed abandoned and will be struck out. See NGILARI V. MOTHERCAT LIMITED (1999) 12 SC (PT 11) 1.
It is also trite law that an issue for determination that is not derived from any ground of an appeal is incompetent and is liable to be struck out along with any arguments based on it. See OJE & ANOR V. BABALOLA & ORS (1991) 5 SCNJ 110.
I will now consider the second issue of whether there were inconsistencies in the evidence of PW1 and if there were, whether the trial court was right to have relied on such evidence to convict the appellant Under this issue Learned Counsel for the appellant argued that “PW1’s evidence which the trial court relied on heavily and convicted the appellant, was marred by grave inconsistencies. PW1’s evidence and his testimony at the trial were not in agreement. In one breath PW1, told the honourable court that he described the appellant to the police for his arrest, yet in another breath he said he told the police the appellants’ name and that he got to know the appellant’s name through the security department. Later on, he changed his testimony again that he got to know the appellant’s name immediately the appellant wrote his statement at the police station, as he only described the person he saw that night to the police. My lords, these inconsistencies only created doubt in the mind of the court as to the question whether PW1 actually knew the appellant before the incident occurred as he claimed and whether the police did not gravely err, when they failed to conduct an identification parade to ensure that the PW1 actually knew who he was talking about.”
In his final address at the trial court, Learned counsel for the appellant had similarly argued that the evidence of the prosecution witnesses especially that of PW1 is contradictory. The trial court considered that argument and held that “there are no material contradictions. Rather what I have come across are minor discrepancies that do not relate to the material evidence in a charge of murder.” This consideration of the said argument by the trial court is contained in pages 170 – 171 of the record of this appeal.
There is no ground of appeal against this part of the judgment of the trial court complaining that the trial court was wrong to have held that there were no material contradictions in the evidence of prosecution witnesses, especially that of PW1. The legal consequence of the absence of an appeal against this holding of the trial court, is that both parties have accepted the decision as correct. The decision therefore remains valid, subsisting and binding on the parties to the case, and non of them can be heard to argue against such holding or finding. See DABUP V. KOLO (1993) 12 SCNJ 1, therefore issue No. 2 with the argument based are incompetent.
Ground 2 of this appeal which complains that “the trial court erred in law, when it relied heavily on the evidence of PW1, in convicting the accused person despite the grave inconsistencies contained therein is not an appeal against the decision of the trial court that there are no material contradictions. The ground complains that the trial court should not have convicted the appellant on the basis of the evidence of PW1 because it contains grave inconsistencies. The complain is obviously based on the contention that the evidence of PW1 contains grave inconsistencies. The trial court had agreed that there were inconsistencies but held that they were not material inconsistencies and that they were minor discrepancies. On the basis of this holding it treated the evidence of PW1 as credible and reliable. Without appealing against this decision, can the appellant contend that the inconsistencies are grave and that the trial Court was wrong to have relied on the evidence of PW1 to convict? I do not think so. Such contention can not be valid without an appeal against the decision that such inconsistencies are not material.
It is therefore settled that there are no material inconsistencies in the evidence of PW1. Since there are no such inconsistencies the complain in ground 2 that the trial judge erred, in law when he relied heavily on the evidence of PW1 to convict the appellant becomes baseless and unarguable. It is important to call to mind that it is not every inconsistency or contradiction in the evidence of a witness or witnesses that is material or grave or substantial and that it is only material contradictions that will render the evidence unreliable and vitiate any decision based on such materially inconsistent evidence. The contradiction or inconsistency is material because the fact in respect to which the evidence conflict is material to the determination of the guilt of the accused or material to an issue that is relevant to the said determination. The inconsistency will not be material if the inconsistent evidence is in respect of a fact not relevant to the proof of the ingredients of the offences with which the accused is charged. As the Supreme Court held per Fabiyi JSC in EKE V. THE STATE (2011) 3 NWLR 589 “for contradictions in the evidence of witnesses to vitiate a decision they must be material or substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified or as to the reliability of such witnesses. In some minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party”.
It is also important to briefly restate the law on the legal effect of discrepancies in the testimony of a witness or witnesses or other forms of evidence. Discrepancies in the material evidence do not affect the credibility and probative value of such evidence and cannot vitiate a decision based on such material evidence. See UWAGBOE V. THE STATE (2008) 12 NWLR (PT 1102) 621. As the Supreme Court held in this case per Onnoghen JSC, “a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor differences in detail.”
The argument under issue no 2 that inconsistencies are material or grave is incompetent and cannot lie in the face of the unchallenged decision of the trial court that no such material contradictions exist. See again DABUP V. KOLO (supra).
In any case, the material evidence of PW1 which I have already reproduced herein in detail is that he had known the appellant as a staff of the Security department of the University and met him severally at different places long before the incident even though he did not know appellant’s name, that on the 26-5-2002, the appellant was the person he saw under electric light in their sitting room, pointing a gun at him and ordered him to switch off the light and lie down. This material evidence has no contradictions. PW1 maintained that he did not know the name of the appellant until after the incident. Whether he knew the name after the appellant made the statement at the police station, or upon inquiry at the Security department is of no moment. An inconsistency on when he knew the name after the incident is not material. What is material is that he had described the appellant to his mother and other of his relatives and had told the police that he saw the appellant and recognized him. In the extrajudicial statement he made 10 days after the incident, he stated the name of the appellant as the person he recognized. It is therefore obvious from the evidence that he described the appellant to his mother and other relatives immediately after the incident, when the matter was fresh in his mind, and mentioned his name in his first written statement to the Police at Nsukka, 10 days after the event, as the person he saw and recognized that fateful night.
For the reason that the decision of the trial court that there are no contradictions have not been appealed against, I hold that issue No 2 and the arguments therein as well as ground 2 of this appeal upon which it is based are not valid in law.
Let me now determine the third issue of whether the trial court was not in error and misdirected itself when it held in its judgment that the accused person in his alibi did not tell the court what he was doing at the material time. Under this issue, Learned Counsel for the appellant argued that the appellant in timeously pleading alibi gave sufficient particulars of his where about at the time of the incident but that there was no evidence showing that the police investigated the alibi raised by the appellant at the time of his arrest. According to Learned Counsel, PW8 stated that he tried to investigate the alibi by looking for Mrs Felicia Igboji but did not see her and that PW8 made no efforts to see the mother of the appellant, with whom the appellant claimed he was in their house from 6.30 pm on 26-5-2002 till the next day. Learned Counsel further argued that the appellant only had an evidential burden to prove the defence of alibi but the prosecution had the duty to disprove it and that the trial court misdirected” itself as to the burden on the appellant and “this error affected his evaluation of the credibility of the appellant and therefore occasioned a miscarriage of justice.” Learned Counsel for the appellant also submitted that since the appellant had discharged the burden to timeously disclose to the police where he was at the time the crime was committed and the police took no steps to verify or disprove it, reasonable doubt would be raised in the mind of the court and that the court may hold that the prosecution has failed to prove its case beyond reasonable doubt. Learned counsel then finally submitted that it is very clear from the trial court’s judgment that it did not appreciate, that the prosecution had a duty to investigate the defence of alibi raised by an accused and appeared to have shifted the burden on the appellant to prove his innocence.
Learned Counsel for the respondent argued replicando that the appellant’s alibi was investigated by the police as the evidence of PW8 shows. According to Counsel PW8, the investigating police officer and his team endeavoured to see Mrs Felicia Igboji and the mother of the appellant to verify the appellant’s story and that the officers met neither of them at home and left a message for them. Learned counsel also pointed out that PW8 stated in his testimony that people were running away from them. Learned Counsel then proceeded to submit that “in the circumstance, the appellant should have endeavoured to call, if all else failed, the mother on this points” and that the duty is on the accused who set up the alibi to call the person with whom he said he was at the material time as a witness since this fact is peculiarly within the knowledge of the accused. Learned Counsel also submitted that the evidence of recognition of the appellant was stronger than the evidence of his alibi and that where the prosecution has proved its case beyond reasonable doubt by producing clear and strong evidence even of one prosecution witness of identification of the appellant with the crime, a convict obtained thereby is unimpeachable. Learned Counsel also submitted that it is no proof of alibi merely for the accused to assert that he was not and could not be there because he was elsewhere, he must lead credible evidence of where he was. It is the further submission of the said Learned Counsel that the appellant did not adduce any evidence tending to show that he was with the mother in the night of the incident and that the trial court had a choice to believe one side and disbelieve the other and that such belief or disbelief can only be interfered with on an appeal “if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence.” It is also the submission of Learned Counsel that the trial court did not misdirect itself in respect of the onus of proof on the appellant. Another submission of Learned Counsel is that evidence of PW1 that he recognized the appellant being a stronger evidence, the question of alibi does not arise and the question becomes one of the credibility of the witness and that even if the police had not investigated the alibi, it does not automatically mean failure of the prosecution’s case as the appellant still had the duty to prove his defence of alibi. Learned Counsel finally submitted that the decision of the trial court that the appellant did not tell the court what he was doing at the material time did not affect the trial court’s overall determination of the issue of the appellant’s alibi and no miscarriage of justice was occasioned thereby.
How the trial court treated the issue of the appellant’s plea of alibi is the subject of the arguments of both sides under this issue, even though the inelegant phraseology of the said issue itself did not bring out this subject very clearly the way the arguments have done. It will therefore facilitate the understanding of the treatment of this issue if the part of the judgment dealing with the appellant’s defence of alibi is reproduced here. That part of the judgment reads as follows “The accused person’s second line of defence is that of alibi he set up in both his extra-judicial statement and his evidence in court. In the case of FATAI SAKA V. STATE (2005) ALL FWLR PART 335, 148, the Court of Appeal observed as follows:- “The defence of alibi is not readily conceded with levity to the accused person seeing that when properly, established, it has the far reaching finality of exculpating the accused person from complete criminal responsibility.” In that case it was further held as follows:- “To take advantage of this defence the accused person must give a detailed particularization of his where about on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally the people in whose company he was and when, and what if any transpired at the said time and place(s). Obviously such comprehensive information furnished by the accused person must unequivocally be capable of investigation by the police should they wish to do so”. See page 163 of the record of this appeal. In the instant case, the accused person raised his alibi in his statement to the police as follows:- “On the day the Chief Security Officer was shot, I was off duty in order to treat my pneumonia at one nurse, one Mrs. Felicia Igboji who works in Bishop Shanahan Hospital Nsukka. On that 26th May, 2002 I went to take treatment at about 5.30 p.m and went back to my house after the injection at about 6.30 p.m.” In his additional statement, he stated as follows: “I went back in the evening by 5p.m. and did not go out again. I was returned to my house by 5p.m. and Felicia gave me the injection. I was with my mother till the following day of 27th May, 2002.” What is relevant in this aspect of the accused person’s defence of alibi is where he was at the material time when the gun men invaded the house of the Chief Security Officer and killed him. The accused person’s alibi is that by 6.30p.m, he had returned to his house and was with his mother. It will be re-called that the prosecution’s case is that the gun men broke into the house between the hours of 9p.m and 11p.m. or thereabout. In effect, the accused person’s alibi is that he was in his house with his mother at that time. He has not told the court what transpired between him and the mother or what he was doing at the material time. He claimed to be off-duty and was receiving treatment at home. Learned counsel for the prosecution has challenged this piece of evidence on ill-health and wondered why the accused person did not go to the University Medical Centre to receive treatment. But that is not the relevant issue here. What is germane in this defence is whether the police investigated this alibi. The PW8 is Sgt. Thomas Ugwu of the State CID, Enugu. He told the court that he took part in the investigation of the case at the end of which the accused person along with Mr. Clement Ezeani (alias Fimmbar) were found to have a case to answer. The prosecution’s case is that when the accused person was asked to produce a medical certificate of ill-health to substantiate his claim of being ill on 26th May, 2002 he failed to do so. Furthermore the PW8, the Police Officer who took part in the investigation of the case was asked as follows under cross-examination:-
Question: “Did you make any effort to reach the mother of the accused?”
Answer: “We dropped a message for her. People were running away from us”. The above testimony presupposes that the police went after the mother of the accused person in order to investigate his claim of alibi. His mother never responded. On this point, learned counsel for the prosecution cited the case of MADAGWA V. STATE (1988) 5 NWLR PART 92, 60 at 62 where the Supreme court held that evidence of alibi should not be disregarded by a trial court unless there is a strong evidence against it and while the onus is on the prosecution to prove the charge against an accused person, the latter has the duty of bringing the evidence of which he relies for his defence of alibi. It seems to me that where the prosecution has led strong and credible evidence showing the presence of the accused at the scene of the crime, the identification or recognition of the accused and his participation in the crime will be unimpeachable See the case of MADAGWA V. STATE (supra).”
It is obvious from the terms of the above mentioned part of the judgment of the trial court that it did not misdirect itself on the level of the responsibility of the investigating officers, the prosecution and the appellant towards proving or disproving the plea of alibi set up by the appellant and the effect of successfully establishing the defence. It considered the sufficiency of the particulars of the alibi furnished by the appellant, that is why it said that the appellant had “not told the court what transpired between him and the mother or what he was doing at the material time.” This consideration is proper because as Learned Counsel for the appellant has conceded in his argument, the law places a burden on the accused who raised the plea of alibi to furnish the investigators with sufficient particulars of his plea. The particulars required have been correctly restated by this court in the case of FATAI SAKA V. THE STATE (supra) relied on by the trial court in the part of the judgment reproduced above. Clearly the trial court’s decision that the appellant did not state what transpired between him and his mother or what he was doing at the material time is in accordance with the law on what constitutes sufficient particulars of an alibi.
The trial court also considered if the police investigated the alibi as pleaded by the appellant. The court considered the evidence of PW8 that they went to see the persons mentioned by the appellant in the particulars of the alibi including the appellant’s mother and did not meet them and that people were running away from the police investigators. The trial court then held that this presupposes that the police went after the mother of the accused in order to investigate the alibi and that the mother for whom the officers left a message did not respond.
It is also glaring from the above reproduced portion of the judgment of the trial court that it understood the distinction between the onus on the prosecution to prove the charge against the appellant and the duty of the appellant to elicit evidence on which he relies for his defence of alibi. The trial court did not mix up or misplace these respective burdens and there is nothing in that judgment that suggests that it treated the appellant as having the burden to prove his innocence. The trial court clearly understood that the appellant had an evidential burden to prove his defence of alibi. The position of the trial court is glaringly in accordance with law. This position has been restated by a long line of decisions of courts including OBAKPOLOR V. THE STATE (1991) 1 NWLR (PT 165) 113, where the Supreme Court per Akpata JSC held that “it is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence.” The supreme court in WASARI UMANI V. THE STATE (1988) ALL NLR 145 had per Nnamani JSC stated the same position relying on GACHI & ORS. V. THE STATE (1965) NWLR 333, YANOR & ORS V. THE STATE (1965) NWLR 337; ODIDIKA V. THE STATE(1977) 2 SC 21, 23 – 24 AND NJOVENS & ORS V. THE STATE (1973) NWLR 331. In ONYEGBU V. THE STATE (1995) 4 NWLR (PT. 391) 510, MADAGWA V. STATE (1988) 12 SC (PT.1) NDUKWE V. THE STATE (2009) 2 -3 SC 7, ODU & ANOR V. THE STATE (2001) 5 SC (PT.1) 153, OKOSI & ANOR V. THE STATE (1989) ALL NLR 170, AKHIMIEN V. THE STATE (1987) 3 SC 134, IBE V. THE STATE (1992) NWLR (PT.244) 642, and JOHN PETER V. THE STATE (1997) 3 NWLR (PT.496) 625 restated the above position.
However the Supreme Court appear to have decided differently in a few cases. In ABUDU V. THE STATE (1985) NWLR (PT 1) 55, the supreme court held per Coker JSC that “the person who puts forward an alibi as his answer to a charge does not undertake upon himself any burden of proving that answer, and it is a mis-statement of the law or in fact a mis-direction to refer to any burden of proof resting on an accused in such a case.” In AIGHUOREGHIAN & ANOR V. THE STATE (2004) 1 SC (PT.1) 65. In IBRAHIM V. THE STATE (1991) 5 SCNJ 129, AND BALOGUN V. A.G OF OGUN STATE (2002) 2 SC (PT 11) 89 it restated the same position. These group of cases hold that the only duty the accused has is to raise the plea with sufficient particulars. Once the plea is properly raised, the accused has no duty to prove it. In IBRAHIM V. THE STATE (supra) the Supreme Court distinguished between the plea raised at the pre-trial stage and one raised during trial. It held that if the plea is raised at the pre-trial stage, the accused has no duty to prove it. It is for the prosecution to disprove it. It then held that if the plea of alibi was not raised at the pre-trial stage but raised by the accused during trial, “he has made an assertion he must prove.”
However the preponderance of the decisions of the Supreme Court state clearly that the duty of the accused to timeously raise the plea of alibi at the pre-trial stage is distinct from his evidential burden to prove the plea he had raised, and that raising the defence at the pre-trial stage is not sufficient, the accused still has the evidential burden to introduce evidence during trial to support the plea raised, especially where at the conclusion of the evidence of the prosecution, it has established a prima facie case against the accused.
By virtue of S.135(3) of the 2011 Evidence Act, if the prosecution inspite of his pre-trial plea of alibi proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused. This requires him to elicit evidence in support of any defence he has including the defence of alibi. Since the particulars of the alibi are facts peculiarly within the knowledge of the appellant, he has the burden of proving them by virtue of S.140 of the 2011 Evidence Act which provides that when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The trial court had held that “the piece of evidence that the accused person was seen and recognized by the PW1 at the scene of the murder of the Chief Security Officer in his house is strong, reliable and credible.” There is no ground of appeal against this holding. The legal consequence of the absence of an appeal against this decision is that both parties have accepted it as correct. It is therefore valid, subsisting and binding on them. See DABUP V. KOLO (supra).
This strong reliable and credible evidence that the PW1 recognised the appellant at the scene of the crime defeated the appellant’s alibi. The Supreme Court in Ndukwe V The State(supra) held that “if the prosecution adduces sufficient evidence to fix a person at the scene of crime at the material time, his alibi, is thereby logically and physically, demolished and that would be enough to render such plea, ineffective as a defence .” So that even though the police officer could not reach Mrs Felicia Igboji and the mother of the appellant, who appeared to be avoiding the police in that they did not respond to the messages the officer left for them, and so were unable to verify the alibi of the appellant, this cannot affect his conviction. This is because there is strong, reliable and credible evidence of the prosecution which has cancelled the alibi. The Supreme Court in ODU & ANOR V. THE STATE (supra) held that “Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction.”
In the light of the foregoing I resolve issue No 3 in favour of the respondent.
On the whole this appeal fails as it lacks any merit and is hereby dismissed. I affirm the conviction and sentence of the appellant by the High Court of Enugu State.
ADZIRA GANA MSHELIA, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Agim JCA. I completely agree with his reasoning and conclusion. I too dismiss the appeal and affirm the judgment of the High Court of Enugu State delivered on 31st March 2008, including the conviction and sentence passed on the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in advance the lead Judgment of my learned brother E.A. Agim JCA and I am in total agreement with his reasoning and conclusion that the Appeal lacks merit and should be dismissed.
I hereby dismiss the appeal also and affirm the Judgment of the lower Court convicting and sentencing the Appellant to death by hanging for the nefarious offences of conspiracy to murder and murder.
Appearances
Ikeazor Akaraiwe Esq. with Mrs C.I. Adaghara and Mrs O.O. AbiazimFor Appellant
AND
Onyema Okpara Esq.For Respondent
