ABDULLAHI IBRAHIM v. THE STATE
(2017)LCN/9417(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of January, 2017
CA/K/254/C/2016
RATIO
EVIDENCE: ALIBI; WHICH PARTY HAS THE BURDEN OF PROF AFTER THE DEFENCE OF ALIBI HAS BEEN RAISED
The law is trite, where an accused person raises unequivocally the issue of alibi that he was somewhere else other than the locus deliciti at the time of the commission of the alleged offence with which he is charged and gives facts and circumstances of his whereabout, the prosecution is duty bound to investigate the alibi set up, to verify the truthfulness or otherwise. In other words, where a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove its case against the accused beyond reasonable doubt. See Olanrewaju Aya vs. State (2014) ALL FWLR (Pt. 740) 1409. PER IBRAHIM SHATA BDLIYA, J.C.A
CRIMINAL LAW: THE MEANING AND FUNCTION OF ALIBI
What is alibi? Alibi literally means elsewhere. It means that when the offence was allegedly committed the accused was somewhere else, so he could not have committed the offence. See Adewumi vs. State (2015)10 NWLR (Pt. 1521) P. 64 @ 630. In the case of Sowemimo vs. State (2004) 11 NWLR (Pt. 995) P. 515 Supreme Court defined the expression alibi as follows:
“Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else, most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. PER IBRAHIM SHATA BDLIYA, J.C.A
CRIMINAL LAW PROCEDURE: INGREDIENTS OF THE DEFENCE OF ALIBI AND WHEN CAN IT BE RAISED IN TRIAL
The defence of alibi cannot be available to an accused person who fails to raise it at the earliest opportunity. Where a defence of alibi raised by an accused person consists of vague accounts which are devoid of material facts worthy of investigation, the police would least be expected to embark on a wild goose chase. Also, in situations where the accused person raised the defence of alibi during the trial, it would be unavailing. Worse still, where an accused person was fixed at the scene of crime, any plea of alibi would be valueless. See Iliyasu vs. State (2015) 11 NWLR (Pt. 1469) P. 26 @ 67 Hassan vs. State (2001) 6 NWLR (Pt. 709) P. 286; Ebre vs. State (2001) 12 NWLR (Pt. 728) P. 617 and Bello vs. Police (1956) SCNLR P. 113. PER IBRAHIM SHATA BDLIYA, J.C.A
EVIDENCE: MEANING AND THE DOCTRINE OF PROOF BEYOND REASONABLE DOUBT
What is proof beyond reasonable doubt? In the case of Miller vs. Minister of Pensions (1947) 2 ALL ER p. 372, proof beyond reasonable doubt; has been defined thus:
“It is not proof to the hilt.” It does not mean proof beyond the shadow of doubt. He observed “that the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only remote possibly in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”.
Muftau Bakare vs. State (1987) 1 NSCC 24 at 272 where Oputa JSC stated:
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means what it says.
It does not admit plausible and fanciful possibilities but, it does admit a high degree of cogency, consistent with an equally high degree of probability”. PER IBRAHIM SHATA BDLIYA, J.C.A
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI IBRAHIM Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court of Justice (the lower Court) delivered on the 17th day of February 2016, in Suit No. KTH/124/2014, by Yusuf, J. The appellant was arraigned on the 5th of January 2014 on a one count charge for committing the offence of rape punishable under Section 283 of the Penal Code, Katsina State. He was alleged to have committed the offence by luring Naja’atu Sada, a girl of ten years of age into a shop and unlawfully had sexual intercourse with her. He pleaded not guilty to the charge. Witnesses testified for the prosecution; documents admitted in evidence. The appellant called witnesses who testified on his defence.
Both learned counsel submitted written address to the Court, and same adopted before the Court. The learned trial judge delivered his judgment on the 17th of February, 2016, convicting the appellant as charged. Dissatisfied with the conviction, the appellant filed Notice of appeal to this Court on the 17th of May 2016, consisting of three grounds of appeal. The appellant’s brief of argument was filed on
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the 13th of June, 2016 wherein, on page 4 thereof, 2 issues were distilled from the grounds of appeal to be resolved in the appeal.
The issues are thus:
1. Whether the trial Court was right in dismissing the defence of alibi raised by the appellant. (culled from ground 1 of the notice of appeal).
2. Whether from the totality of the evidence adduced, the prosecution proved its case against the appellant beyond reasonable doubt to warrant the conviction of the appellant by the trial Court. (culled from grounds 2, 3 and 4 of the notice of appeal).
The respondent filed brief of argument on the 21st of June, 2016 and adopted the 2 issues contained in the appellant’s brief of argument on page 3 thereof.
RESOLUTION OF ISSUES
Issues 1 and 2 are hereunder taken and resolved seriatim which would ultimately determine the appeal.
ISSUE I
Whether the learned trial judge of the lower Court was right in dismissing the defence of “alibi” raised by the appellant?
Ibrahim Esq., who settled the appellant’s brief of argument did submit that a Court of law hearing a criminal proceedings is under duty to consider all defences
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put up by an accused person. The case of Nwankwoala vs. State (2006) FWLR (Pt. 339) P. 801 of 818 cited to buttress the contention supra. Counsel further adumbrated that where an accused person raised the defence of ?alibi?, that is, he was not at the scene of the alleged commission of crime, but he was elsewhere, and provides the details of his where about, the prosecution has a duty to investigate same in order to verify such defence. The prosecution has the duty to resolve the defence of alibi by proving otherwise. The case of Olarewaju Aya vs. State (2014) All FWLR (Pt. 240) P. 1049 cited to reinforce the submission supra.
?Counsel did content that despite the evidence of the appellant that he was at his house at the time the alleged commission of the offence occurred; and the evidence of DW1 and DW3 that he was at home, the prosecution failed and or refused to ascertain the veracity of same. That the appellant having stated he was at home, not at the scene of the crime, he had, by such evidence, discharged the burden of adducing evidence to support the defence of alibi. It is for the police or the prosecution to rebut same by
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investigating the alibi. See the case of Osuagwu vs. The State (2013) 1 SCNJ P. 33 @ 54. That the evidence of the appellant on alibi had not been contradicted by the respondent, therefore, the defence of alibi had been established by the evidence of DW1, DW2 and DW3. Learned Counsel therefore urged that Issue 1 be resolved in favour of the appellant.
For the respondent, Umar (Mrs.) Esq. learned DPP of Katsina State, did submit that the learned trial judge of the lower Court was right when he dismissed the defence of alibi raised by the appellant. Counsel pointed out that the evidence of PW4, PW5 and DW1-DW3, clearly showed that the offence was committed at the shop or room belonging to the appellant. Counsel conceded that it is the duty of the prosecution to investigate all defences put up by an accused person, but where no credible evidence to support any defence, the prosecution has no duty to investigate. The case of Uluebeka vs. State (2011) 4 NWLR (Pt.1237) p.383 @ 384 cited to reinforce the submissions supra. That an accused person relying on the defence of alibi has the onus to provide the particulars of his whereabout, giving the place, date,
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time and the person who were with him or have seen him at such a place at the time the offence was alleged to have been committed. The cases of Iregu vs. State (2013) 12 NWLR (Pt. 1387) P.92 @ 130, Osuagwu vs. State (2013) 5 NWLR (Pt. 1347) P. 360 @ 383 cited to buttress the submissions supra.
Counsel referred to the evidence of DW2 and Dw3 and submitted it is an afterthought because the appellant did not state where he was when he made a statement to the police at the police station before the trial commenced. That the evidence of the appellant, taken together with that of DW1, DW2 and DW3, are contradictory rendering same incredible. That where the evidence of witnesses consist of contradictions and inconsistency, a Court of law cannot rely on same to arrive at a decision. The case of Sowemimo vs. State (2004)11 NWLR (pt. 885) p. 525 @ 532 cited in aid. On the evidence of the appellant that he was with one Murtala, counsel did submit that, the appellant was under duty to call him as witness but then he failed to do so. That the appellant only mentioned the name of Murtala without stating the time, what they were doing and when they parted to enable
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the prosecution to investigate. That even if the prosecution failed to investigate the assertion that one Murtala was with the appellant, such failure cannot be fatal to the prosecution’s case in that having fixed the appellant to have been at the scene of the crime by the evidence of PW1, PW2, PW3 and PW4, the evidence of the appellant that he was with Murtala is of no consequence. The case of Ochemaje vs. State (2008) 15 NWLR (Pt. 1109) P. 57 @ 78 cited to reinforce the submissions supra. Concluding, learned counsel did submit that the appellant did not provide sufficient materials in support of the defence of alibi to require investigation by the prosecution; and that the evidence of PW4 and PW5 sufficiently dislodged the defence of alibi as founded by the learned trial judge of the lower Court. Counsel urged that Issue 1 be resolved against the appellant.
The appellant in his evidence at the lower Court claimed that he was at home with 2 of his friends on the day Najaatu Sada was raped.
?By the foregoing piece of evidence, the appellant had put up the defence of alibi. That is, he could not have committed the offence because he was not at the
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place (scene) where the offence was committed. The law is trite, where an accused person raises unequivocally the issue of alibi that he was somewhere else other than the locus deliciti at the time of the commission of the alleged offence with which he is charged and gives facts and circumstances of his whereabout, the prosecution is duty bound to investigate the alibi set up, to verify the truthfulness or otherwise. In other words, where a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove its case against the accused beyond reasonable doubt. See Olanrewaju Aya vs. State (2014) ALL FWLR (Pt. 740) 1409.
What is alibi? Alibi literally means elsewhere. It means that when the offence was allegedly committed the accused was somewhere else, so he could not have committed the offence. See Adewumi vs. State (2015)10 NWLR (Pt. 1521) P. 64 @ 630. In the case of Sowemimo vs. State (2004) 11 NWLR (Pt. 995) P. 515 Supreme Court defined the expression alibi as follows:
?Alibi is a defence which seeks to persuade the Court that the accused could not
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possibly be at the scene of the crime as he was somewhere else, most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime?.
An alibi must be very detailed on where the accused person was.
Evidence from persons that were with him at the time would be most relevant to show that he could not have committed the offence, because he was with them. The onus is on the accused person to rely on evidence to support or establish his alibi, and the standard of proof required is on balance of probabilities. However, there would be no need for the investigating police officers to investigate an alibi if there is overwhelming evidence against the accused person that he participated in the crime. Osuagwu vs. State (2013) 5 NWLR (Pt. 1347) 360; Aliyu vs. State (2013) 12 NWLR (Pt.1368) 403; Ajayi vs. State (2013) 9 NWLR (Pt. 1360) 589.
For a defence of alibi to be worthy of investigation, it should be precise and specific in terms of the place that the accused person was at the material time of the incident. The police should not be involved in a wild goose chase for the
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whereabouts of the accused person at the time the crime was committed. See Ochemaje vs. State (2008) 15 NWLR (Pt. 1109) P. 57.
The defence of alibi is not conceded easily to the accused person.
This is because if proved or established, it has the effect of exculpating the accused from criminal responsibility. Thus, to be entitled to its beneficent effect, an accused person must raise it at the earliest opportunity, which would preferably, be in his extrajudicial statement.
This is to offer the police an opportunity either to confirm or confute its availability to the accused person. Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him. It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it. Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 399; Nwabueze vs. State (1988) 3 NWLR (Pt. 186) 399; Ikemson vs. State (1989) 3 NWLR (Pt. 110) 455; Onyegbu vs. State (1995) 4 NWLR (Pt. 391) 510.
?In raising or putting up the defence of alibi, the accused
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person must do so at the earliest opportunity furnishing the police with full details of the alibi to enable the police check the details. See Sowemimo vs. State (2004) 11 NWLR (Pt. 885) P. 515.
The police or the prosecution has the duty to investigate any alibi put up by an accused person, failure to do so would be fatal to the case against the accused in that the defence of alibi would have been established or proved. However, it is not every failure of the Police to investigate an alibi raised by an accused person that will be fatal to the case of the prosecution. There is nothing estoric or extra-ordinary in a plea of alibi, which postulates that the accused could not have committed the offence when he was not there. Even if it is the duty of the prosecution to check on a statement of alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time, his alibi is thereby logically and physically demolished. See Aliyu vs. State (2013) 12 NWLR (Pt. 1368) P. 403 @ 419 Odu vs. State (2001) 10 NWLR
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(Pt. 772) P. 685 and Attah vs. State (2010) 10 NWLR (Pt. 1201) P. 190.
The defence of alibi cannot be available to an accused person who fails to raise it at the earliest opportunity. Where a defence of alibi raised by an accused person consists of vague accounts which are devoid of material facts worthy of investigation, the police would least be expected to embark on a wild goose chase. Also, in situations where the accused person raised the defence of alibi during the trial, it would be unavailing. Worse still, where an accused person was fixed at the scene of crime, any plea of alibi would be valueless. See Iliyasu vs. State (2015) 11 NWLR (Pt. 1469) P. 26 @ 67 Hassan vs. State (2001) 6 NWLR (Pt. 709) P. 286; Ebre vs. State (2001) 12 NWLR (Pt. 728) P. 617 and Bello vs. Police (1956) SCNLR P. 113.
The learned trial judge of the lower Court considered the evidence adduced for the prosecution (the respondent) and that adduced by the appellant on the defence of alibi that was put up by the appellant. On pages 67 to 69 of the printed record of appeal, the learned judge found and held thus:
?In the case before this Court there is
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nowhere even in the address of the defence that the defence of alibi was raised at the police station either at central police station or the State CID. I refer to the address of the prosecution last page third paragraph 1 to 10 where it is state:
“in an attempt to rebut the presumption, the accused testified and called two other witnesses for the defence, the accused merely denied committing the offence. The two witnesses tried to exonerate him by informing the Court that they were together in the accused’s room at the time of the alleged offence. Curiously none of these witnesses gave statement to the police. Also the accused in his statement to the police did not mention any of these witnesses; rather he mentioned the name of one Murtala whom he said was in his shop. The said Murtala was not called. In view of the foregoing the failure to mentioned DW2 and DW3 at the statement to the police admitted in evidence as Exhibit ?A’ and ?A1? the Hausa and English translation of the said statement there is nowhere the accused mentioned he was with his two friends hence the
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alleged alibi was contrived by the learned counsel to protect his client during trial.
In Exhibit ?A1? the accused stated that on “on Thursday 6th December, 2012, I was in my workshop at jan-bango when he was informed by one Almu that his bicycle had an accident and the person took him to the scene they arrived at Rahamawa quarters to one old woman’s house where the said Almu together with two other persons unknown to him started beating him alleging that he had sexual intercourse with one Naja’atu Sada on 6th December, 2012 but he denied committing the offence or deceiving her by taking her to another place with intent to have sex with her. It is in view of the above that I hold that the accused has failed in his bid to use alibi in his defence because it has been held in Christopher Okolo vs. COP (1977) NNLR 1 CA – “Where an accused makes a statement to the police before trial indicating that he will rely on defence of alibi, it is for the State to have that statement investigated before the trial and, where appropriate use the result of that investigation to rebut the defence of the alibi”.
In the circumstances of this case
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there is nowhere the accused relied on defence of alibi prior to the commencement of trial hence he cannot rely on it. On the testimony of prosecution witnesses which the learned counsel to the accused said all are hearsay and unreliable. I tend to agree more with the submission of counsel to the prosecution where he stated in his address page 3 first paragraph “the evidence of these witnesses corroborated each other in some respect material to the charge. It is trite that corroboration need not consist of direct evidence. It suffices where the evidence corroborate each other in some respect material to the charge. See Ali vs. State (2012) 7 NWLR (Pt. 1299) P. 209 @ 260 Paragraphs A-E”. (Underlining for emphasis)
The findings and the conclusion of the trial judge reproduced supra, cannot be faulted in view of the evidence of PW1, 2, 3, 4 on the defence of alibi. The prosecutrix, Naja?atu Sada, testified as follows on pages 41-42 of the record of appeal.
“My name is Naja’atu Sada, I am 10 years old. I live at Rahamawa. I go to Nurul Hayatul Islam. I know the accused. On 6th of December, 2012. We were out for breakfast he called us myself with Ummi, he
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said Ummi should stay at the door of the shop and he took me into the shop and brought a knife and said if I shout he will kill me, He removed his trouser he removed my trouser also. He put his penis in my vagina, Felt pain, he gave me N200,00 I gave Ummi N100.00 then we went to school, and someone stole money in the class. We asked if we were the ones who took the money, we said no, then we were taken home where we were asked who gave us money and we told them then the accused was called we went to the police station together and I was taken to the hospital. That is all”.
The evidence of the prosecutirx has fixed the appellant to be at the scene of the crime. The statement of the appellant was recorded by PWI, Sgt. Aminu Yusuf. It is Exhibits ‘A’ and ‘AI’. The appellant did not put up the defence of alibi in his statement to the police. It was at the trial, when giving evidence that he put up the defence of alibi. The appellant claimed he was with other persons on the day the crime was alleged to have been committed. He specifically mentioned the name of one Murtala. None of these persons was called by him to corroborate his claim that they were together
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at the time on the day the offence was committed. Having not raised or put up the defence of alibi at the earliest opportunity, and having not called those he claimed were with him on the day the offence was committed, can he be entitled to the defence of alibi. I do not think so. For as enunciated in the case of Iliyasu vs. State (2015) 11 NWLR (Pt. 1469) P. 26 @ 59-60, wherein NWEZE, J.S.C said:
“Thus, to be entitled to its beneficial effect, such an accused person must raise it at the earliest opportunity, Hassan vs. The State (2001) 6 NWLR (Pt. 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the police an opportunity either to confirm or confute its availability to the accused person. Ibrahim vs. The State (1991) 4 NWLR (Pt. 186) 399; Nwabueze vs The State (1988) 3 NWLR (Pt.86) 16; Ikemson vs. The State (1989) 3 NWLR (Pt. 110) 455. Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him. Onyegbu vs. The State (1995) 4 SCNJ 275, 285-286; (1995) 4 NWLR (Pt. 397) 510 Ibrahim vs. State (supra); Balogun vs. A-G., Ogun State (2002) 6
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NWLR (Pt. 763) 512, 535-536; Eke vs. The State (2011) LPELR-1133 (SC) 16; (2011) 3 NWLR (Pt 1235) 589.
It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it. Eyisi vs. State (2000) 4 NSCQR 60; (200) 15 NWLR (Pt 691) 555 and to disprove same. Eke vs. The State (supra), Failure to investigate the defence of alibi raised in such circumstances will lead to an acquittal. Yanor vs. The State (1965) ALL NLR (Reprint) 199; Bello vs. Police (1956) SCNLR 133; Odu and Anor vs. The State (2001) 5 SCNJ 115, 120; (2001) 10 NWLR (Pt.722) 669.
In effect, where a defence of alibi consists of vague accounts which are devoid of material facts worthy of investigation, the police, in the circumstance, would least be expected to embark on a wild goose chase. Ebre vs. The State (supra) @ 636. In situations such as was the case at the Court of trial, where the accused person raised the defence of alibi during the trial, it would be unavailing. Such a strategy would simply be viewed as a ploy, deliberately, contrived to deny the prosecution its right
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and duty to investigate the defence. Hassan vs. State (2001) 6 NWLR (Pt. 709) 286. Worse still, where an accused person was fixed at the scene of the crime, any SCNJ 91, 107, 108, reported as Obakpolor vs. State (1991) 1 NWLR (Pt. 165) 113”.
The evidence adduced by the appellant on the defence of alibi is vague, and having not raised it at the earliest opportunity but at the trial when he gave evidence, cannot be attached any weight. What is more, the evidence of PW4, the prosecutrix, had fixed the appellant to be at the scene of the crime. The evidence of DW3, has not discredited the evidence of PW1, 2, 3 and 4, which the learned trial judge of the lower Court had relied on in dismissing the defence of alibi put up by the appellant. For as pointed out by the Apex Court in Iliyasu vs. State (2015) 11 NWLR (Pt. 1469) P. 26 @ 67, where a defence of alibi raised by an accused person consists of vague accounts which are devoid of material facts worthy of investigation, the police would least be expected to embark on a wild goose chase. Such a strategy would simply be viewed as a ploy deliberately contrived to deny the Police the opportunity to
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investigate. Worse still, where an accused person had been fixed at the scene of crime, any plea of alibi would be valueless.
The learned trial judge of the lower Court was therefore right in dismissing the defence of alibi. Issue 1 is resolved against the appellant.
ISSUE 2
Whether form the totality of the evidence adduced, the prosecution proved its case against the appellant beyond reasonable doubt to warrant the conviction of the appellant?
Ibrahim Esq., of learned counsel to the appellant did contend that the commission of a crime must be proved beyond reasonable doubt.
That this burden squarely lies on the prosecution. The cases of The State vs. Danjuma (1997) 5 NWLR P. 526; Mrs. Patience Ayo vs. State (2010) ALL FWLR (Pt. 230) P.1377 and Abdullahi vs. State (2008) FWLR (Pt.432) P. 1047 @ 1061 cited to buttress the submissions supra. Counsel went on to submit that in order to prove or establish the commission of the offences of rape, there must be credible evidence proving the following ingredients; (a) the accused had sexual intercourse with the woman in question, that is, the prosecutrix (b) the act was done in the
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circumstances set out under paragraph (v) of the Section 281(1) of the Penal Code (c) the woman or girl was not the wife of the accused person, if she is, has not attained puberty (d) there was penetration of the vagina. Counsel did submit that the prosecution did not adduce evidence proving all the ingredients of the offence of rape as erroneously held by the learned trial judge of the lower Court.
On the evidence of PW4, the prosecutrix, counsel submitted that since it was an unsworn testimony same required corroboration as provided by Section 209(1) of the Evidence Act, 2011. That since there has been no independent evidence corroborating the evidence of PW4, the commission of the offence of rape has not been proved. The case of Onyegbu vs. The State (1995) 4 NWLR (Pt. 391) P. 531 cited in aid. On the contradictory nature of the evidence of PW3, 4 and 5, counsel did contend that same be resolved in favour of the appellant. The cases of Attah vs. State (1993) 4 NWLR (Pt. 288) p. 403 and Azuwike vs. Diamond Bank PLC (2014) 3 NWLR (pt. 1339) p. 116 @ 127 cited to reinforce the submissions supra.
On the ingredients of the offence of rape, it was
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been submitted that there has been no evidence that there was penetration of the vagina of the prosecutrix as required by law. That penetration can best be proved by the report of a medical Doctor. That Exhibit ‘B’, the medical report has not established that there was penetration of the prosecutirx vagina. In conclusion, learned counsel did submit that the prosecution had failed to prove all the ingredients of the offence of rape under Section 282 of the Penal Code beyond reasonable doubt as required by Section 135(1) of the Evidence Act, therefore, Issue 2 be resolved in favour of the appellant.
Mrs. Umar, learned DPP, Katsina State, did submit that the prosecution adduced credible evidence proving the commission of the offence of rape beyond reasonable doubt at the lower Court. As to what is proof beyond reasonable doubt in criminal proceedings, counsel cited and relied on the case of Bassey vs. State (2012) 12 NWLR (Pt.1314) P. 209 @ 228 and Elisbo vs. State. That the evidence of PW4, PW5 and Exhibit ‘B’ have proved all the ingredients of the offence of rape as provided under Section 282(1) of the Penal Code.
Counsel further submitted that
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the evidence of PW1, 2, 3 and 5 as well as Exhibit ‘B’ corroborate the evidence of the prosecutrix, PW4. That the learned trial judge was right in relying on same in convicting the appellant. That case of Ali vs. State (2012) 7 NWLR (Pt. 1295) p. 209 @ 260 cited in reinforcement of the submissions supra. On the alleged contradiction in the evidence of the prosecution witnesses, it has been submitted that there was no such contradictions, and even if there is, it his no effect on the credibility of the evidence because same have not been discredited under cross-examination by the appellant. The cases of Jimmy vs. State (2013) 17 NWLR (Pt. 1386) p. 229 @ 253 and Ebeinwe vs. State (2011) 11 NWLR (pt. 1246) p. 402 @ 416 cited to buttress the submissions supra.
Concluding, counsel did urge that the evidence of PW1, 2, 3, 4 and 5 taken together with Exhibit ‘B’ have proved the commission of the offence of rape by the appellant beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011. That Issue 2 be resolved against the appellant.
The learned counsel to the appellant did submit that the prosecution did not prove the commission
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of the offence of rape beyond reasonable doubt. What is proof beyond reasonable doubt? In the case of Miller vs. Minister of Pensions (1947) 2 ALL ER p. 372, proof beyond reasonable doubt; has been defined thus:
“It is not proof to the hilt.” It does not mean proof beyond the shadow of doubt. He observed “that the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only remote possibly in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”.
Muftau Bakare vs. State (1987) 1 NSCC 24 at 272 where Oputa JSC stated:
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure
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including the administration of criminal justice. Proof beyond reasonable doubt means what it says.
It does not admit plausible and fanciful possibilities but, it does admit a high degree of cogency, consistent with an equally high degree of probability”.
The lower Court relied on the evidence of the prosecutrix as PW4 which has been corroborated by the evidence of PW1, 2, 3 and 5 as well as Exhibit “A and AI”. The law is settled, the commission of an offence is not to be proved beyond all doubt, but an offence can be said to have been committed if there is cogent evidence proving the essential ingredients of the offence. In the case of Posu vs. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 410-411, the Supreme Court Per Galadima, JSC said:
“By virtue of the provision of Section 138(1) of the Evidence Act, the prosecution must prove the ingredients of an offence beyond reasonable doubt to secure a conviction.
Therefore, if on the entire evidence adduced before a trial Court, the Court is left with no doubt the offence was committed by the accused person, that burden of proof beyond reasonable doubt the offence was committed by the accused
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person will be upheld, even if it is the credible evidence of a single witness. On the other hand, where the Court considers the totality of the evidence and a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. Afolalu vs. State (2009) 3 NWLR (Pt. 1127) 160; Fatoyinbo vs. A. G. Western Nigeria (1966) 1 SCNLR 101; Alonge vs. IGP (1959) SCNLR 516; State vs. Danjuma (1997) 5 NWLR (Pt. 506) 512”.
Mohammed JSC (as he then was) expressed same view in the case of Afolalu vs. State (2010) ALL FWLR (Pt. 528) P. 812 when he said:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before the trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof
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beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person benefit of the doubt resulting in his discharge and acquittal: Alonge vs. Inspector General of Police (1959) SCNLR 516; Nigeria (166) WNLR 4 and State vs. Danjuma (1997) 5 NWLR (506) 512″.
The evidence of PW1, 2, 3, 4 and 5 taken together with Exhibits ‘A’, ‘AI’ and ‘B’ have proved the following ingredients of the offence of rape:
(i) That the accused (appellant) had sexual intercourse with the prosecutrix.
(ii) That the act was done in the circumstances set out under Section 282(1) of the Penal Code.
(iii) That the prosecutrix was not the wife of the appellant.
(iv) That there was penetration of the vagina of the prosecutrix.
?On pages 69-70 of the record of appeal, the learned trial judge found and held thus:
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“On defence of alibi prior to the commencement of trial hence he cannot rely on it. On the testimony of prosecution witnesses which the learned counsel to the accused said all are hearsay and unreliable. I tend to agree more with the submission of counsel to the prosecution where he stated in his address page 3 first paragraph “the evidence of these witnesses corroborated each other in some respect material to the charge. It is trite that corroboration need not consist of direct evidence. It suffices where the evidence corroborate each other in some respect material to the charge, See Ali vs. State (2012) 7 NWLR (Pt. 1299) P. 209 @ 260 Paragraphs A-E.
In view of the foregoing ingredient number one is proved. On ingredient number two the prosecution has proved same by the testimony of PW4, PW5 and the contents of Exhibit ‘B’. From the above evidence the victim in this case was under the age of 14 therefore the act of the accused was done under Section 282(1)(e) of the Penal Code. With this I am in agreement that ingredient number two has been proved. On the 3rd ingredient from the testimony of PW3, PW4 and PW5 the prosecutrix was not the wife of the
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accused hence the ingredient was equally proved.
On the 4th ingredient by the combined effect of the evidence of PW4, PW5 and the contents of Exhibit ‘B’ (medical report of the victim) the prosecution has proved the said ingredient against the accused. The act of luring the prosecutrix into his shop is enough evidence though as learned counsel to the prosecution said the Medical Report is not specific on penetration, an assessment of suspected rape was made. This is supported by the Supreme Court pronouncement in Ezigbo vs. State (2012) 16 NWLR (Pt. 826) P. 318 @ 328) paragraphs C. “Corroboration in respect of the offence of rape is evidence which tends to that the story of the prosecutrix that the accused committed the offence is true”. In view of the foregoing I find that the prosecution has proved the offence against the accused person beyond reasonable doubt and I so hold”.
The findings, and decision arrived at by the learned trial judge of the lower Court cannot be faulted. As to the issue whether there was penetration of the vagina or not, the evidence of the prosecutix coupled with Exhibit ‘B’, are credible evidence that there was
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penetration of the vagina as required in law. The prosecutrix testified as PW4. Her evidence has been recorded on page 42 of the printed record of appeal thus:
“… He removed his trouser, He removed my trouser. He put his penis in my vagina, I felt pain?”
The decision arrived at by the learned trial judge of the lower Court, reproduced supra, in convicting the appellant for committing the offence of rape under Section 281(1) of the Penal Code, cannot be faulted. Issue 2 is resolved against the appellant. The appeal therefore fails. Same is dismissed accordingly. The judgment of the lower Court delivered on the 17th of February, 2016 in charge No. KTH/12C/2014, is hereby affirmed.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my learned brother IBRAHIM SHATA BDLIYA JCA and I agree with the reasoning and conclusions reached by my lord. Alibi is not a defence that suddenly dawns on an accused in the course of trial. It is the result of a total rejection of the commission of a crime by an accused person. An accused summoned to a Police Station over an allegation that
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he committed a crime he feels he did not commit is expected to have a sense of outrage particularly when he is not even at the scene of crime. That sense of outrage should ordinarily compel him to explain his whereabouts in his statement, giving details of where he was, who he was with and when. In this case, the Appellant in his statement made no such disclosures. His claim during trial that he was elsewhere therefore appears to be no more than an afterthought. I am satisfied that the lower Court rightly rejected the defence of alibi. I consider it as a bogus defence. For this reason and the fuller reasons given in the lead judgment, I also dismiss the appeal and affirm the Judgment of the lower Court.
?AMINA AUDI WAMBAI, J.C.A.: I agree.
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Appearances:
Abdulaziz Ibrahim Esq.,with him, E. E. Samuel Esq.For Appellant(s)
S. B. Umar ESq., with him,Halima Lawal B. Esq.For Respondent(s)
Appearances
Abdulaziz Ibrahim Esq.,with him, E. E. Samuel Esq.For Appellant
AND
S. B. Umar ESq., with him,Halima Lawal B. Esq.For Respondent
