ANDREW EKWENUYA v. THE STATE
(2018)LCN/12430(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/B/40C/2017
RATIO
DEFENCE: THE DEFENCE OF ALIBI
“‘Alibi’ is a Latin word which means ‘elsewhere’. When an accused person raises the defence of alibi, it means that he was somewhere than where the prosecution alleges that he was at the time the offence was committed. See Friday Aiguoreghian & Anor. v. The State (2004) 3 NWLR (Pt. 860) 367 and Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“…the Supreme Court, per Peter-Odili, JSC stated as follows: ‘Another mode of proof of the offences being by circumstantial evidence and the prosecution proffered the evidence of the recovered toy gun exhibit B found in the bag kept in the appellant’s room within 24 hours of the robbery and the toy gun belonged to PW1’s son was a point which led irresistibly and unequivocally to the guilt of the appellant and there were no co-existing circumstances which weakened the inference that the appellant was part of the robbery gang.’
See Matthew Thomas v. The State (2017) 9 NWLR (Pt.1570) 230 at 254. See also Niyi Akinmoju v. The State (2000) 6 NWLR (Pt. 662) 608.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
EVIDENCE: WAYS OF PROVING A CRIME
“The law is settled that mere suspicion cannot establish or prove the criminal liability or guilt of an accused. Every criminal allegation must be proved beyond reasonable doubt and the burden to do so lies squarely on the prosecution. It is also settled law that there are three accepted ways of proving a crime in Court and they are:
(a) Direct evidence;
(b) Confession made by the accused person; and
(c) Circumstantial evidence.
See Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311; Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363 and Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421.”PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
Before Their Lordships
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
ANDREW EKWENUYAAppellant(s)
AND
THE STATERespondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The appellant and one Samuel Idoko were charged and tried in Charge No. O/19C/2014 for offences of armed robbery, receiving stolen property, kidnapping, demanding with menaces and stealing in the High Court of Delta State sitting at Ogwashi-Uku. The trial Court, after the trial of the case, delivered a reserved judgment on 07/12/2016 whereby the appellant was found guilty and sentenced as follows:
1. In each of counts 1 and vi, the sentence of the Court upon you is that you be hanged by the neck until you be dead. May God have mercy on your soul.
2. In each of counts iv and v, you are sentenced to 3 years and 7 years in the respective counts.
3. In each of counts iii and vii, you are sentenced to 15 years imprisonment on each of the counts.
Being dissatisfied with the decision of the trial Court, the appellant filed two notices of appeal – one on 16/01/2017 and the other on 28/02/2017. The notice of appeal filed on 16/01/2017 was abandoned on 20/03/2018 and it was, accordingly, struck out.
The appellant’s brief was filed on 23/03/2017 and in it a sole issue for determination was formulated as follows:
Whether from the totality of the evidence on record and the alibi raised by the appellant, the lower Court rightly held that the prosecution proved the alleged offences against the appellant beyond reasonable doubt based on circumstantial evidence.’
In its brief filed on 11/05/2017, the respondent framed a single issue as follows:
‘Whether in view of the evidence on record the learned trial judge was right in law when he held that the prosecution proved the offences of Armed Robbery, Kidnapping, demanding with menace and stealing against the appellant beyond reasonable doubt.’
The sole issue, respectively, identified by the appellant and the respondent is the same but, for the determination of the appeal, I adopt the issue as framed by the learned senior counsel for the appellant, as his issue aptly captures the gravamen of the appellant?s grounds of appeal.
Mr. Ekemejero Owhovoriole (SAN), learned senior counsel, who settled the appellant?s brief stated the ingredients of each of the four offences with which the appellant was charged and said that each of the ingredients must be proved beyond reasonable doubt. After referring to the cases of Emeka v. State (2001) 14 NWLR (Pt. 734) 666; Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300; Mbang v. State (2010) 7 NWLR (Pt. 1194) 431; Ahmed v. Nigerian Navy (2011) 1 NWLR (Pt. 1227) 89; Dele v. State (2011) 1 NWLR (Pt. 1229) 508 and Ilodigiwe v. State (2012) 18 NWLR (Pt. 1331) 1, learned senior counsel stated that the guilt of an accused person can be proved beyond reasonable doubt by confessional statement, evidence of eye witness and circumstantial evidence.
He argued that the trial Court was wrong to have held that a vehicle which was snatched in Ogwashi-Uku in Delta State was in the possession of the appellant within 24 hours after it was snatched and this raised a presumption that he was one of the thieves or that he received it knowing same to have been stolen.
The senior counsel submitted that ?the lower Court was wrong when it came to the conclusion that the prosecution proved all the offences against the appellant based on circumstantial evidence; especially as:
(i) the Court dismissed the evidence of identification given by PW1 and PW2;
(ii) PW3 exculpated the appellant;
(iii) the Court also found that the appellant did not confess to the commission of the crimes alleged;
(iv) exhibit ‘A’ did not disclose circumstantial evidence of guilt for the offences alleged against the appellant.
(v) Section 167(a) of the Evidence Act, 2011 raises a rebuttable presumption; and
(vi) The defence of alibi availed the appellant.
Relying on the case of Yongo v. C.O.P. (1990) 5 NWLR (Pt.148) 103 at 117, it was contended that an accused should be acquitted if he gives reasonable explanation for his possession of the property. Counsel relied on the case of People of Lagos State v. Umaru (2014) LPELR ? 22466 (SC) at pp. 51-53, paras. A-C per Muhammad, JSC, it was submitted that:
‘In several cases, the Supreme Court has held that the fact that stolen goods are seen in the possession of an accused person does not automatically relieve the prosecution of the burden of proof. The burden is still on the prosecution and if the accused person’s explanation creates some doubts in the mind of the Court, then the prosecution has not discharged the burden of proof and the accused person is entitled to an acquittal.’
Counsel also faulted the failure by the trial Court to consider and make a pronouncement on the defence of alibi raised by the appellant and which counsel included in his address on pages 108-109 of the record of appeal. Placing reliance on the case of Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 at 586-587 it was argued that ‘our Courts are enjoined to consider the defence of an accused person, no matter how stupid it looks. In the circumstances, not only had the lower Court denied the appellant fair hearing, the Court also failed to perform a vital duty imposed on the Court’.
Learned senior counsel argued that ?the appeal was incapable of committing (the offences) because it is impossible for him to have physically been in Lagos State and Delta State at the same time?.
In finally urging the Court to allow the appeal, it was submitted that the prosecution ought to have called as witness the person who gave information that led to the appellant’s arrest.
On behalf of the respondent, Mr. O.F. Enenmo (Director of Appeals, Delta State Ministry of Justice) agreed that: the evidential burden of proof is either by:
(1) Direct oral evidence of witnesses
(2) Circumstantial evidence
(3) By admissions and confessions of the accused person(s).
In support of his above submission, learned counsel relied on the cases of Stephen v. The State (2013) Vol. 223 LRCN (Pt.2) 215; Oguonzee v. State (1998) 58 LRCN 3512 at 3551; Okoh v. State (2016) 10 NWLR (Pt. 1521) 455 and Itu v. The State (2016) 5 NWLR (Pt. 1506) 443.
After summarizing the facts of the case, learned counsel argued that the offences with which the appellant was charged were proved beyond reasonable doubt by circumstantial evidence.
On Section 167(a) of the Evidence Act, learned counsel for the respondent contended that:
‘There was no reasonable explanation on record coming from the appellant explaining of how he and his friend ‘Focus’ took possession of PW1’s car.’
Relying on the case of Banjo v. State (2013) Vol. 224 (Pt. 2) 74, learned counsel submitted as follows: ‘On the issue of proper identification; I submit that having been found in possession of the stolen car soon after it was stolen, identification of the appellant as one of the culprit in this case is no longer an issue.’
On the defence of alibi, Mr. Enenmo referred to the cases of Ndukwe v. State (2009) 7 NWLR (Pt. 1139) 43; Njovens v. State (1998) 1 ACLR 109 and Balogun v. A.G Ogun State (2001) 94 LRCN 211 and submitted that ‘once there is credible evidence on record believed by the trial Judge fixing an accused to the scene of crime whatever defences raised by the accused collapse’.
The learned counsel for the respondent contended that the case of Olayinka v. State (supra) cited by the appellant is not applicable to this case because ‘there is evidence that the appellant was in possession of the stolen Jeep together with his friend ‘Focus’ less that twenty-four hours after it was stolen? and the Court was not satisfied with his explanation as to how the Jeep got into his possession.
Learned counsel cited the cases of State v. Ajie (2000) 11 NWLR (Pt. 678) 434 and Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 and argued that it is not in all cases that failure of a Court to make a finding will amount to a denial of fair hearing.
He urged the Court to dismiss the appeal.
The law is settled that mere suspicion cannot establish or prove the criminal liability or guilt of an accused. Every criminal allegation must be proved beyond reasonable doubt and the burden to do so lies squarely on the prosecution. It is also settled law that there are three accepted ways of proving a crime in Court and they are:
(a) Direct evidence;
(b) Confession made by the accused person; and
(c) Circumstantial evidence.
See Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311; Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363 and Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421.
In this case, as can be garnered from the judgment of the trial Court, the facts presented by the prosecution can be summarized to be as follows:
(a) On 26/12/2013, one Chief Francis Onwuegbuzie (PW1) went to his village Ogwasi-Uku from Lagos accompanied by his boy – Ifeanyi Okonkwo (PW2).
(b) On 27/12/2013, PW1 and PW2 went to Ubulu-Unor and on their way back, they stopped to visit one Mr. Ekwenuga and at the man?s gate a vehicle blocked them and 6 armed men, covering their faces, emerged from that vehicle and they started shooting randomly.
(c) The men covered the faces of PW1 and PW2 and pushed then into PW1’s Jeep and took them to an unknown destination, where they were moved into a toilet.
(d) The kidnappers left PW1 and PW2 until 29/12/2013 when they returned to demand a ransom of N70 million, of which the sum of N5 million was eventually paid.
(e) In the night of 31/12/2013 the alleged kidnappers took PW1 and PW2 in a vehicle and drove off and, after collecting PW2’s phone number so that they could be informed where to pick up the PW1’s Jeep, the PW1 and PW2 were pushed out of the vehicle. PW1 and PW2 found out that they were dropped off along Ezenei Street in Asaba.
(f) On 01/01/2014 PW1 and PW2 returned to Lagos.
(g) The kidnappers later called PW1 demanding for N2 million and he (PW1) reported the matter to the Police in Lagos who advised him to ‘play along’ and the kidnappers later collected the sum of N150,000.00 for the return of the Jeep but the Jeep was not returned.
(h) About two weeks after the said payment of N150,000.00, PW1 received a call informing him that the Jeep had been sold. The caller also informed PW1 that he was not given anything after the Jeep was sold and that PW1 should get the accused (now appellant) who the caller called or described as ‘the mastermind behind the kidnapping’.
(i) PW1 wrote a petition to the Police Anti-Robbery Squad, Lagos and the appellant was arrested and he allegedly volunteered a statement, which was admitted by the trial Court as exhibit ‘A’ after a trial-within-trial.
(j) In exhibit ‘A’ the appellant mentioned one ‘Godwin’ and when asked how the police could get the said ‘Godwin’, he replied that he would not know, as they often met at an eatery. When the appellant’s wife visited him in the Police custody, she was questioned and she said that ‘Godwin’ had a facebook account which she could access and when the facebook account was opened, there was a photograph of ‘Godwin’ posing with the Jeep. The photograph was later admitted as exhibit ‘C’ by the trial Court.
(k) PW3 traced the house of ‘Godwin’ but ‘Godwin’ was not around and Godwin’s wife was arrested. ‘Godwin’ later called his wife at the Police Station and asked her to call a number belonging to Samuel Idoko, who was tried as the 2nd accused with the appellant.
(l) Mr. Samuel Idoko was alleged to have bought the Jeep but when Idoko was arrested he took the Police to one Ted Lawani for whom the said Idoko claimed to have bought the Jeep.
(m) The Jeep was later recovered from Ted Lawani in Abuja.
(See the above facts on pages 198 to 200 of the record of appeal).
The appellant’s evidence, in his defence, can also be summarized and it is as follows:
(i) On 27/12/2013, the appellant took his family to a hotel to celebrate his wife’s birthday and the barman told him that someone wanted to see him outside and when he went outside, he saw one man who introduced himself as ‘Focus’ – a clearing agent in Apapa with two Policemen. ‘Focus’ asked him if he was from Delta State as he looked familiar and he ‘confirmed this’. They exchanged phone numbers.
(ii) Two days later, ‘Focus’ called the appellant to ask if he could show him Moshalashi roundabout and he agreed to do so. ‘Focus’ called him to meet him at a hotel known as ‘Aso Rock’ and when he got there he saw ‘Focus’ ‘and a Toyota 4Runner Jeep’ parked in front of the hotel and ‘Focus’ asked him to accompany him to Moshalashi roundabout.
The trial Court, in its judgment, summarized the remaining relevant evidence of the appellant as follows:
Both of them went there in the vehicle. ‘Focus’ got down and made a call to the Policemen and three of them came. They had a discussion with ‘Focus’ after which he gave them the car keys. One of them drove the vehicle and ‘Focus’ left with them. The accused person went home. After 2 days the accused called ‘Focus’, who told him he was in Delta State and would be back to Lagos the following week. On 4.1.2014, ‘Focus’ called to say he had been calling the Policemen whom he gave the Jeep but he would not pick his calls. He asked the accused person to call him to say that the owner of the Jeep wanted it back. When the accused person called the Policeman, the said Policeman told him ‘Focus’ was owing him N150,000.00 and that he was not going to pick his calls. The accused person reported back to ‘Focus’ who promised to pay the money. The name of the Policeman is Kenneth Godwin. Eventually, Godwin told the accused person to inform ‘Focus’ that he could pick the car at Obalende Barracks. The accused person passed the information to ‘Focus’. That was the last time the accused person heard from them.
On the totality of the evidence adduced by the appellant, see pages 200 to 202 of the record. I am of the view that the learned trial Judge was right by concluding that:
‘Considering how fast the relationship between the accused person and Focus appeared to have developed within such a short time, going by the evidence of the accused person, the Court does not believe they only met each other on 27.12.2013, as he testified before this Court. That the accused person knew Focus and those he mentioned in his statement long before the incident which gave rise to this charge occurred, is borne out by the statement itself.’
The appellant’s account, as reproduced above, in his attempt to found a defence to the offences levelled against him, is obviously a cock-and-bull story. No reasonable Court or tribunal could rely on the appellant’s explanation for how he got possession of PW1’s Jeep in Lagos on 28/12/2013 after it was allegedly stolen in Delta State on 27/12/2013.
In this case, the circumstantial evidence adduced by the prosecution was so cogent, convincing and compelling that the trial Court was amply justified in convicting the appellant on it.
In a case, the facts of which were substantially similar to those of this case, in the sense that a toy gun used in an armed robbery operation was found in the room of the accused within 24 hours of the robbery, just as in this case where the complaint’s Jeep robbed from him in Delta State was in the possession of the appellant in Lagos within 24 hours of the robbery, the Supreme Court, per Peter-Odili, JSC stated as follows:
‘Another mode of proof of the offences being by circumstantial evidence and the prosecution proffered the evidence of the recovered toy gun exhibit B found in the bag kept in the appellant’s room within 24 hours of the robbery and the toy gun belonged to PW1’s son was a point which led irresistibly and unequivocally to the guilt of the appellant and there were no co-existing circumstances which weakened the inference that the appellant was part of the robbery gang.’
See Matthew Thomas v. The State (2017) 9 NWLR (Pt.1570) 230 at 254. See also Niyi Akinmoju v. The State (2000) 6 NWLR (Pt. 662) 608.
The learned senior counsel argued in this case that if the trial Court had considered the defence of alibi, it ‘would have come to the conclusion that it was impossible for the appellant to have committed the offences which occurred in Delta State and which were alleged against him’.
I agree that a trial Court ought to consider and pronounce on all defences raised by an accused person.
Learned senior counsel said that the appellant raised the defence of alibi in this case. It is true that the appellant said in his statement to the police – exhibit ‘A’ and his testimony in Court that he was in Lagos on 27/12/2013.
‘Alibi’ is a Latin word which means ‘elsewhere’. When an accused person raises the defence of alibi, it means that he was somewhere than where the prosecution alleges that he was at the time the offence was committed. See Friday Aiguoreghian & Anor. v. The State (2004) 3 NWLR (Pt. 860) 367 and Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.
In this case, having regard to the circumstances of how the appellant was arrested and the whole facts of the case, it would have amounted to a mere surplusage for the trial Court to have considered and pronounced on the purported alibi, since the overwhelming circumstantial evidence had implicated the appellant. Whether the appellant was in Lagos on 27/12/2013 is immaterial since the circumstantial evidence had mathematically pinned to the offences which were alleged against him and the case against him proved beyond reasonable doubt by reason of the circumstantial evidence.
I think that I have advanced sufficient reasons to enable me to resolve the lone issue in this appeal. For all reasons given above, I resolve the sole issue in this appal against the appellant.
This appeal, therefore, lacks merit and it is hereby dismissed.
The judgment of the trial Court delivered on 07/12/2016 is hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother M.A.A. ADUMEIN, JCA. My Lord has dealt with the lone issue formulated by both parties and I am in total agreement with the reasoning and conclusions reached therein.
Having resolved the lone issue against the Appellant in favour of the Respondent, it is also my ardent view that this appeal lacks merit and it is hereby dismissed.
The Judgment of the trial Court delivered on 7th day of December, 2016 is hereby affirmed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA, afforded me the privilege of reading before now the lead judgment just delivered.
I agree that the appeal lacks merit and I too dismiss same in terms of the lead judgment.
I abide by the orders therein contained.
Appearances:
E. Ohwovoriole (SAN) with him, Miss I. Igbinigie and Miss I.S. MaidohFor Appellant(s)
O. F. Enenmo, Esq, (Director of Appeals, Delta State Ministry of Justice)
For Respondent(s)
